Konami Claims Rock Band Violates Its Patents

from the losers-litigate dept

Just a few months ago guitar maker Gibson sued just about everyone for patent infringement over a patent it held on "virtual concerts." It looks like that lawsuit may have woken up others who happen to hold "virtual concert" patents. Video game maker Konami, which had some virtual concert games years ago, also happened to get some patents on the concept and have now sued Harmonix, the makers of Rock Band. Once again, this looks like a "losers litigate" strategy. Harmonix has created a hugely successful product in the space -- Konami has not. Yet, Konami wants a cut of Harmonix's profits. That's not the sort of incentives that should be encouraged.


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  1.  
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    hidari, Jul 11th, 2008 @ 10:32am

    Its about time

    As a avid fan of guitar Freaks/Drum mania since 1999 (when it 1st came out) I have always been puzzled when this lawsuit was going to happen. I really thought Konami was going to idly sit by and let this roll.

     

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  2.  
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    Double Down, Jul 11th, 2008 @ 10:43am

    When is this insanity going to stop

    I can understand when someone copies or reverse engineers a product that a company or person should be protected. Not unlike plagiarism. But patenting an idea or concept should not be allowed--and if it is it should be proved that the offending company pilfered from the idea directly. Meaning that the company would have never come up with the product if they had never been exposed to it in the first place, ie a demonstration of a product. Software and business patents should be eliminated all together....but of course anyone that reads this blog knows this.

     

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    Willton, Jul 11th, 2008 @ 10:53am

    Why not?

    Harmonix has created a hugely successful product in the space -- Konami has not. Yet, Konami wants a cut of Harmonix's profits. That's not the sort of incentives that should be encouraged.

    Why not? Assuming that Rock Band is infringing on Konami's patents, it is Konami's invention that Harmonix is profiting from, and Harmonix did nothing to help invent the technology. The incentive to create the invention is the ability to litigate these claims and receive compensation for the contribution the inventor gave to the infringer. If the inventor can't get that, then the inventor does not have much incentive to invent, does he?

     

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  4.  
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    Gunnar, Jul 11th, 2008 @ 11:07am

    "If the inventor can't get that, then the inventor does not have much incentive to invent, does he?"

    Well, he gets to be the first person into the space and has the time it takes for competitors to reverse engineer stuff to dominated the space.

    Harmonix is sucessful because it took a chance on a market that nobody was sure was there. Konami was too timid to take a chance to bring a +100 device to the market, Harmonix wasn't. It's a shame they're going to be punished for that.

     

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  5.  
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    dazcon5, Jul 11th, 2008 @ 11:12am

    Patent Air

    You should not be able to patent air. If there is no tangible product, no patent should be granted. Software CODE should be patentable but not the concept i.e. software based shopping cart. Any patent application that has "method of" in it should be automatically rejected.

     

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  6.  
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    Gunnar, Jul 11th, 2008 @ 11:26am

    You people who are saying they never built anything are wrong. Konami was behind a guitar and drum arcade games that are virtually identical to the control devices used in Rock Band (and Guitar Hero before that).

    http://en.wikipedia.org/wiki/GuitarFreaks

     

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  7.  
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    Willton, Jul 11th, 2008 @ 11:29am

    Re:

    Well, he gets to be the first person into the space and has the time it takes for competitors to reverse engineer stuff to dominated the space.

    Which assumes that the inventor has the means to do such a thing by himself. An inventor who does not have such means must get another party to purchase the invention, and in order to do so, the inventor must disclose the invention that party. After disclosure, without property rights to the invention, the inventor has little bargaining power to convince a manufacturer to produce his product for a fee.

    Harmonix is sucessful because it took a chance on a market that nobody was sure was there. Konami was too timid to take a chance to bring a +100 device to the market, Harmonix wasn't. It's a shame they're going to be punished for that.

    Please, Harmonix took no chances. Harmonix saw the amount of acclaim Guitar Hero was getting and decided to copy the product. The only thing Rock Band did differently from Guitar Hero was add instruments.

     

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  8.  
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    Anonymous Coward, Jul 11th, 2008 @ 11:34am

    "Please, Harmonix took no chances. Harmonix saw the amount of acclaim Guitar Hero was getting and decided to copy the product. "

    Except Harmonix developed Guitar Hero 1 and 2...

     

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  9.  
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    Mike (profile), Jul 11th, 2008 @ 11:38am

    Re: Why not?

    Why not? Assuming that Rock Band is infringing on Konami's patents, it is Konami's invention that Harmonix is profiting from, and Harmonix did nothing to help invent the technology.

    Actually, what you mean is that it's Harmonix's *innovation* and Konami is trying to profit from something that Konami did nothing to help innovate around the technology.

    The incentive to create the invention is the ability to litigate these claims and receive compensation for the contribution the inventor gave to the infringer. If the inventor can't get that, then the inventor does not have much incentive to invent, does he?

    What a twisted legalistic world you live in, Willton.

    The *incentive* to create the invention is the ability to bring a product to market that the market demand -- and to receive compensation in the marketplace.

    That's the incentive to invent.

     

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  10.  
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    Anonymous Coward, Jul 11th, 2008 @ 11:47am

    Re: Re:

    After disclosure, without property rights to the invention, the inventor has little bargaining power to convince a manufacturer to produce his product for a fee.

    Unless you live in a world where one can draft contracts whereby one party agrees to disclose the invention and the other side agrees to some payment. Then, if either one fails to up hold their bargain, you have a breach of contract. If you can't come to angreement with one compant, find another one who you can agree to. If no one will agree to your contract, maybe your invention isn't so great?

    Harmonix has promoted the progress of this space of entertainment: they do things in Rock Band that weren't done in Guitar Hero. The added instruments and created a cooperative experience that Guitar Hero didn't have.

     

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  11.  
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    Killer_Tofu (profile), Jul 11th, 2008 @ 11:48am

    Boooo Konami

    My respect for Konami seriously just dropped about 5 notches.
    I will now never buy a game again that they have a hand in.
    Horribly disappointed in them.

     

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  12.  
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    Anonymous Coward, Jul 11th, 2008 @ 11:50am

    Re: Patent Air

    Air is tangible. You can box it up, move it around, etc. Ideas don't even have that amount of physicality.

    Code should be copyright-able, but probably not patent-able. Even at that it's sketchy; code isn't much more than one step removed from algebra.

     

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  13.  
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    Anonymous Coward, Jul 11th, 2008 @ 11:51am

    Re:

    That doesn't change the fact that they failed in the market.

     

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  14.  
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    Anonymous Coward, Jul 11th, 2008 @ 12:04pm

    Re: Re: Why not?

    "What a twisted legalistic world you live in, Willton."

    And you, MM, appear to live in the world of Camelot.

     

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    Anonymous Coward, Jul 11th, 2008 @ 12:19pm

    Re: Re: Re: Why not?

    Oh, that was scathing. You say the incentive to invent is to sue; Mike says you're twisted and the incentive to invent is to bring a product to market. And the best you can do is say he lives in a dream world? Pathetic.

     

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  16.  
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    Joe, Jul 11th, 2008 @ 12:38pm

    Re:

    It's pretty sad that the company waited until a product was this successful to sue for patent infringement. Also that was in the arcade...i highly doubt their patent will hold up since this game is played in a person's living room.

    If Konami was so proud of their product and patent they would have done this years ago.

     

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  17.  
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    Joe, Jul 11th, 2008 @ 12:42pm

    Re: Boooo Konami

    I don't know if i'll boycott Konami...granted i barely play their games now, but i'll admit this lawsuit is pathetic and will alienate a lot of Rock Band fans who believe in Harmonix.

    Truth is Konami didn't have the foresight to bring their game to the table so they have no one to blame but themselves.

     

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  18.  
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    Vakor, Jul 11th, 2008 @ 12:45pm

    Re: Re:

    I tried to be open minded. I thought that perhaps they had invented a new motion detctor that could be used in conjunction with "wailing" on the guitar (fig. 7). Maybe they developed a button press mechanism that felt more guitar-like. Maybe they did something other than taking allowing you to use a Hot Lixx toy guitar as a game controller. Well they did do that. Their patent appears to cover using *two* Hot Lixx toy guitars to play the same game *at the same time*.

    The background of the invention for the patent in Exhibit A concedes that there were pre-existing instrument-based rhythm games before. There were also ways to hook two "apparatuses" together to play. It looks like the main thrust of the patent, according to the summary of the invention, is the idea of having two people play on the same "music playing game apparatus".

    There is discussion of the strum bar and drum pickup mechanisms, but those don't look like the point of the patent. If they are, please explain why they're not in the summary or abstract.

    Can someone explain to me how psuedocode flowcharts and gameplay screen drawings are a patentable idea?

     

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  19.  
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    Anonymous Coward, Jul 11th, 2008 @ 1:26pm

    Re: Re: Re:

    The question about infringement is determined against the backdrop of the claims associated with each patent, with the claims always stated at the end of a patent document.

     

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  20.  
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    Jerry Lees, Jul 11th, 2008 @ 1:26pm

    Re: Why not?

    AWESOME COMMENT. You've detailed exactly why someone would want to think something up and not do anything with it, but can you just take it a step farther and enlighten us all as to how you would propose some one should actually create something new in such a climate?

    Read my blog above, I post on a silly patent (with links to it). Clearly the patent system is broken beyond repair when someone can patent something and sit on it just simply waiting for some one to make a mint off the idea whether they knew it had been patented or not and then sue them.

     

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  21.  
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    Anonymous Coward, Jul 11th, 2008 @ 1:39pm

    Re: Re: Why not?

    ...and sit on it."

    Actually, it is inserted...

     

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  22.  
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    Willton, Jul 11th, 2008 @ 2:06pm

    Re: Re: Re: Re: Why not?

    Oh, that was scathing. You say the incentive to invent is to sue; Mike says you're twisted and the incentive to invent is to bring a product to market. And the best you can do is say he lives in a dream world? Pathetic.

    Check who signed the post. I am not "Anonymous Coward." I sign my posts, unlike some people.

     

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  23.  
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    DCX2, Jul 11th, 2008 @ 2:25pm

    Re: Why not?

    it is Konami's invention that Harmonix is profiting from, and Harmonix did nothing to help invent the technology.

    What you're saying is that Harmonix had the intent of taking Konami's "invention" and using it as their own. You ignore any possibility for coming up with the invention separately, as well as ignoring the possibility that anyone who wants to create a "guitar simulator" would probably create quite similar products.

    Oh, and for the record, Konami did not make Guitar Hero. They made Guitar Freaks.

    So, Konami released twelve mixes of Guitar Freaks. Yet you probably never heard about it. Why, then, do you know about Guitar Hero?

    Oh, because people wanted more from Guitar Freaks, but Konami was too lazy to innovate. They felt like it was enough to just add some new songs and some mixes of the old songs and that counts as a new game.

    Harmonix out-did Konami with their very first game (just like Roxor's In The Groove game out-did Konami's DDR; DDR had over a dozen mixes with two innovations total throughout its history, while Roxor added three in their first game). But rather than supporting new competitors in a market in order to encourage innovation, you would rather have the first entity to the market be king and extract their fee from every subsequent player.

    With that mentality, there might never have been a Guitar Hero or an In The Groove. And no ITG could have meant that Konami wouldn't have even half-assed their DDR SuperNova mix (which was designed only to make it look like they were still actively creating new dance games while they were suing Roxor)

     

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  24.  
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    Willton, Jul 11th, 2008 @ 2:25pm

    Re: Re: Why not?

    Actually, what you mean is that it's Harmonix's *innovation* and Konami is trying to profit from something that Konami did nothing to help innovate around the technology.

    What innovation? I see no innovation from Harmonix. All I see is the copying of technology. Harmonix uses the same exact technology that is disclosed in the Konami patents. No improvements, no changes, just the same technology packaged differently. How is that innovative?

    What a twisted legalistic world you live in, Willton.

    The *incentive* to create the invention is the ability to bring a product to market that the market demand -- and to receive compensation in the marketplace.


    Why should the incentive to invent be tied to the inventor's ability to market their products? Doesn't that limit the pool of candidates that can be professional inventors?

    It seems like you're saying, "We only want inventors that can market a product. If you can't do that, it doesn't matter how novel or useful your invention is; you forfit your ability to profit from your invention." Well, gee, I guess that makes being an inventor a less attractive profession, doesn't it? I don't see how discouraging candidates from entering the field is good policy.

    Sometimes economics has to cede to other policy concerns. This is one of those times.

     

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  25.  
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    Kiba, Jul 11th, 2008 @ 2:41pm

    Re: Re: Re: Why not?

    Um. Economics IS the policy concern.

    You can measure scientific progress THROUGH economics.

    If economics is telling us that growth is not occurring, chance are, scientific progress is being delayed.

     

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  26.  
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    Willton, Jul 11th, 2008 @ 2:44pm

    Re: Re: Why not?

    What you're saying is that Harmonix had the intent of taking Konami's "invention" and using it as their own. You ignore any possibility for coming up with the invention separately, as well as ignoring the possibility that anyone who wants to create a "guitar simulator" would probably create quite similar products.

    I'm sorry if I don't have sympathy for people that try to invent things that have already been invented. The reason why we have a public patent system is to avoid the reinvention of the wheel. If someone wanted to create a guitar simulator, it would behoove them to figure out if one had already been created. Then perhaps that person can improve upon already existing technology.

    Oh, and for the record, Konami did not make Guitar Hero. They made Guitar Freaks.

    So, Konami released twelve mixes of Guitar Freaks. Yet you probably never heard about it. Why, then, do you know about Guitar Hero?

    Oh, because people wanted more from Guitar Freaks, but Konami was too lazy to innovate. They felt like it was enough to just add some new songs and some mixes of the old songs and that counts as a new game.


    In case you didn't know, Konami licensed its patents to Activision, the makers of Guitar Hero. Activision didn't create their game on their own; they worked off of Konami's model, and they did so legally. And I'll bet you that by getting a license from Konami, Activision is paying less money than Harmonix will eventually have to pay.

    Harmonix out-did Konami with their very first game (just like Roxor's In The Groove game out-did Konami's DDR; DDR had over a dozen mixes with two innovations total throughout its history, while Roxor added three in their first game). But rather than supporting new competitors in a market in order to encourage innovation, you would rather have the first entity to the market be king and extract their fee from every subsequent player.

    I don't care about who the first entity to market is. I care about whether the inventor gets compensated for his invention that everyone is so keen on using.

    I'd support the competitors if they actually created something new. Harmonix did not do that.

     

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  27.  
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    Willton, Jul 11th, 2008 @ 2:46pm

    Re: Re: Re: Re: Why not?

    Um. Economics IS the policy concern.

    You can measure scientific progress THROUGH economics.

    If economics is telling us that growth is not occurring, chance are, scientific progress is being delayed.


    Really? Then please show us how to measure such scientific progress through economics. And please limit your analysis to ONLY scientific progress, not other stuff like who's the best marketer.

     

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  28.  
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    Pete, Jul 11th, 2008 @ 2:55pm

    wtf?

    Virtual concert?! Guitar Hero is exactly like DDR which is exactly like Amplitude. Time your inputs with the beat of the song Game X is playing.

    So, really, if we take a DDR breakdancer and add a guitar in his hands, we're immediately engaged in a rock concert? F* that. Seriously.

     

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  29.  
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    Anonymous Coward, Jul 11th, 2008 @ 3:08pm

    Just to get some facts straight:

    Both GuitarFreaks and DrumMania came out in 1999. Harmonix developed Guitar Hero came out in 2005.

    After seeing the sucess of Konami's BeatMania and Dance Dance Revolution Harmonix, who had made a couple of music games that failed to do anything financially, switched their focus on Japan and created FreQuency in 2001.

    Harmonix worked with Konami on 2003's Karaoke Revolution.

    People at Harmonix have acknowledged being "influenced" by Konami's work in music games.

     

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  30.  
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    Mike (profile), Jul 11th, 2008 @ 3:11pm

    Re: Re: Re: Why not?

    What innovation? I see no innovation from Harmonix

    If there were no innovation, then why is Rock Band selling so well?

    Innovation is bringing something to market in a manner which the market demands. Harmonix did that, Konami did not. Obviously, Harmonix innovated, where Konami either chose not to or was unable to.

    No improvements, no changes, just the same technology packaged differently. How is that innovative?

    Again, if that were the case, then why would anyone buy it?

    The market has clearly proven you wrong. The market (which gets to judge these things, rather than you) has shown that it feels Harmonix innovated quite a bit, and Harmonix has been rewarded financially for that innovation.

    You seem to be under the false impression that "entirely new" is somehow better than "better." The real world doesn't work that way.

    Why should the incentive to invent be tied to the inventor's ability to market their products?

    Because that's how you make sure that the innovations actually have a market?

    Doesn't that limit the pool of candidates that can be professional inventors?

    Huh? How do you figure? It actually *enlarges* the pool of candidates by making sure that they have *all* possible concepts at their disposal, and aren't artificially limited in what they can use in their innovations.

    It seems like you're saying, "We only want inventors that can market a product. If you can't do that, it doesn't matter how novel or useful your invention is; you forfit your ability to profit from your invention." Well, gee, I guess that makes being an inventor a less attractive profession, doesn't it? I don't see how discouraging candidates from entering the field is good policy.

    You really ought to learn a little economics before you state such things. This makes it much MORE attractive to be an inventor, because you're no longer limited in how you go about inventing. I would think that's very *good* policy.

    Sometimes economics has to cede to other policy concerns. This is one of those times.

    Are you seriously suggesting that protecting a single class of inventors, at the expense of a larger class of inventors and the rest of society is a smart public policy move? Yikes.

    Willton, the whole point of the economic analysis here IS the policy implications, recognizing that we're currently in a situation where everyone is *worse* off. I can't see how that's a positive policy implication.

     

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  31.  
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    Mike (profile), Jul 11th, 2008 @ 3:23pm

    Re: Re: Re: Why not?

    I'm sorry if I don't have sympathy for people that try to invent things that have already been invented. The reason why we have a public patent system is to avoid the reinvention of the wheel. If someone wanted to create a guitar simulator, it would behoove them to figure out if one had already been created. Then perhaps that person can improve upon already existing technology.

    Uh, no. The reason we have a patent system is not to avoid reinvention of the wheel. It's to promote the progress. If one can do that by building a better mousetrap -- which the market clearly says Harmonix did -- then what's wrong with that?


    In case you didn't know, Konami licensed its patents to Activision, the makers of Guitar Hero. Activision didn't create their game on their own; they worked off of Konami's model, and they did so legally. And I'll bet you that by getting a license from Konami, Activision is paying less money than Harmonix will eventually have to pay.


    And you find it fair that Activision and Harmonix will have to pay a tax to Konami, a company that failed in the market?

    I don't care about who the first entity to market is. I care about whether the inventor gets compensated for his invention that everyone is so keen on using.

    Then that inventor should sell the product and get compensated. That's how markets work.

    I'm assuming, obviously, that you refuse to eat food that isn't being cooked by the inventor. Those Nathan's hot dogs, were stolen from Nathan's original boss. How dare anyone eat them.

    And when you regale us with your legal wisdom, do you make sure to send money back to the law school you attended? After all, you're making use of that knowledge?

    You see, Willton, not everything has to be compensate for every time it's used.

    And, the most amusing part is your blindness to the incentives of the companies who are actually making useful products for the market. You whine about the incentives for inventors, but ignore the fact that this sort of patent lawsuit takes away all of the incentives for companies to make more useful versions of this game. Then everyone loses out.

    I'd rather live in a world where competition and the market is what drives innovation, rather than some lame gov't monopoly. That leads to much slower and more expensive innovation. That's not good for anyone.

     

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  32.  
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    Mike (profile), Jul 11th, 2008 @ 3:24pm

    Re: Re: Re: Re: Re: Why not?

    Really? Then please show us how to measure such scientific progress through economics. And please limit your analysis to ONLY scientific progress, not other stuff like who's the best marketer.

    Ah, yes, because only Willton gets to determine how scientific progress is determined.

    Back here in reality, progress is determined by increasing the pie and offering up wider opportunities. And that's an economic issue.

     

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  33.  
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    A.T.S., Jul 11th, 2008 @ 4:04pm

    Directly from the US Patent and Trademark Office Website

    For over 200 years, the basic role of the United States Patent and Trademark Office (USPTO) has remained the same: to promote the progress of science and the useful arts by securing for limited times to inventors the exclusive right to their respective discoveries (Article 1, Section 8 of the United States Constitution). Under this system of protection, American industry has flourished. New products have been invented, new uses for old ones discovered, and employment opportunities created for millions of Americans. The strength and vitality of the U.S. economy depends directly on effective mechanisms that protect new ideas and investments in innovation and creativity. The continued demand for patents and trademarks underscores the ingenuity of American inventors and entrepreneurs. The USPTO is at the cutting edge of the Nation’s technological progress and achievement. .

    What is it about Guitar Freaks and or Rockband that deals with the progress of science and the useful arts by securing for limited times to inventors the exclusive right to their respective discoveries .

    The problem with these lawsuits is that they have nothing to do with the inventors, or even the original purpose of a Patent. The problem is that they have devolved in to a method by which companies can gain or steal marketshare.

    The really interesting thing is that these lawsuits come before Konami is set to release their own 'rhythym game' to the console market...AND...they were re-issues of the patents...coming AFTER other companies had already enjoyed success.


    6,225,547, Re. S.N.: 11/754,562, May 29, 2007, Cl.: 084/611, RHYTHM GAME
    APPARATUS, RHYTHM GAME METHOD, COMPUTER-READABLE STORAGE MEDIUM, AND
    INSTRUMENTAL DEVICE, Motoki Toyama, et al., Owner of Record: Konami Digital
    Entertainment Co., Ltd., Tokyo, Japan, Attorney or Agent: Stephen Y. Pang,
    Ex. Gp.: 2837

    6,225,547, Re. S.N.: 11/754,580, May 29, 2007, Cl.: 084/611, RHYTHM GAME
    APPARATUS, RHYTHM GAME METHOD, COMPUTER-READABLE STORAGE MEDIUM, AND
    INSTRUMENTAL DEVICE, Motoki Toyama, et al., Owner of Record: Konami Digital
    Entertainment Co., Ltd., Tokyo, Japan, Attorney or Agent: Stephen Y. Pang,
    Ex. Gp.: 2837


    This one was funny. I can't wait to see who they're going to sue with THIS patent:

    http://www.uspto.gov/web/patents/patog/week03/OG/html/1326-3/US07318772-20080115.html

    Game program being embodied in a computer readable medium for instructing a computer to execute the following procedures, comprising:
    furnishing at least one character with arms, items, guards, and special powers which can be obtained in a game world on the basis of an instruction from at least one player through a controller of said computer; and
    giving said at least one player powers which are respectively defined by an arm, an item, a guard and a special power furnished to said at least one character for developing a subsequent scenario on the basis of said at least one character who obtained said given power;
    said furnishing of said arms, items, guards, and special powers including the following steps;

     

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  34.  
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    Anonymous Coward, Jul 11th, 2008 @ 4:13pm

    Re: Re: Re: Re: Re: Why not?

    Actually, it was me, and the reference to "Camelot" seemed then and now quite accurate. MM does live in a "dream world" of sorts, one governed by economic purity as the sole measure of "progress". Perhaps the same can be said concerning his definition of "innovation".

     

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  35.  
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    Mike (profile), Jul 11th, 2008 @ 4:32pm

    Re: Re: Re: Re: Re: Re: Why not?

    Actually, it was me, and the reference to "Camelot" seemed then and now quite accurate.

    How so?

    MM does live in a "dream world" of sorts, one governed by economic purity as the sole measure of "progress".

    Can you provide another measure of progress? I keep asking people, and no one responds. And, again, I should be clear, because those who are ignorant in economics seem to think that measuring progress by economics means *monetary* results. Not at all. Economics is about measuring *benefit* in terms of *utility*. That is often determined by money, but it need not.

    So my argument is that the best way to measure the progress of science and the useful arts (they never said anything about the frivolous arts, of course) is if they increase the marginal utility (i.e., the economic opportunity -- aka "the pie").

    That's actually a very real world ("utilitarian") view of promoting the progress.

    It's those who come up with wishy-washy definition of progress that seem to include worlds where everyone is WORSE off who I would accuse of living in a dream world.

    Perhaps the same can be said concerning his definition of "innovation".

    Again, my definition of innovation is based on a bunch of economic research I've pointed to over the years. That research is based on *real world* data. How can that possibly be based in a dream world?

    You can accuse me of living in a dream world, but since you seem unable to actually back up your statements, I'd argue that the evidence suggests someone else is living in a dream world.

     

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  36.  
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    Anonymous Coward, Jul 11th, 2008 @ 6:14pm

    Re: Re: Re: Re: Re: Re: Re: Why not?

    "Can you provide another measure of progress? I keep asking people, and no one responds."

    Several persons in the past have responded with what I considered to be thoughful answers, but each time their answers have been summarily dismissed because they did not align with your definition.

    "...the frivolous arts..."

    The "test" is "useful arts", and not "useful and non-frivolous arts". What may seem frivolous to you may be anything but that to many others.

    "Again, my definition of innovation is based on a bunch of economic research I've pointed to over the years. That research is based on *real world* data. How can that possibly be based in a dream world?"

    I have read much of the research you reference and did not see anything in them attempting to define the word "innovation". The manner in which you use the word is something you have crafted over the years. I understand the conceptual framework in which you use the word, but strongly disagree with your persistent subordination of the efforts of an inventor vis a vis others who may participate in the process of taking an invention from its conceptual stage to its introduction as a product/service.

     

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  37.  
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    Mike (profile), Jul 11th, 2008 @ 6:58pm

    Re: Re: Re: Re: Re: Re: Re: Re: Why not?

    Several persons in the past have responded with what I considered to be thoughful answers, but each time their answers have been summarily dismissed because they did not align with your definition.

    And yet you still refuse to provide what you consider progress to be. Funny.

    And I don't recall anyone ever actually providing an answer for me to dismiss, summarily or otherwise. So far I just get answers like the one above.

    If you have an ACTUAL reason why the definition of progress is wrong, please provide it. Otherwise, admit that you have no argument here.

    The "test" is "useful arts", and not "useful and non-frivolous arts". What may seem frivolous to you may be anything but that to many others.

    That was a joke. Apparently not a good one.

    I actually agree that what may be frivolous to one would be useful to others. That's *EXACTLY* why an economic definition of progress makes sense: because it lets those others define what progress is based on utility. Not based on some gov't organization handing out monopolies.

    I have read much of the research you reference and did not see anything in them attempting to define the word "innovation".

    Then you haven't read all the research. There was a good Forrester report on this topic last year (March I think...).

    I understand the conceptual framework in which you use the word, but strongly disagree with your persistent subordination of the efforts of an inventor vis a vis others who may participate in the process of taking an invention from its conceptual stage to its introduction as a product/service.

    It's not the subordination of the inventor at all. It's a factual look at the process, recognizing that innovation is an ongoing process.

    For evidence on this, look at the research from Bessen and Maskin (winner of last year's Nobel Prize). They did research to find out why so much innovation occurs even without patents, and crafted a model showing that the rest of the innovation process tend to be much more important than the invention stage, and when matched up with empirical data, it suggests their model is correct.

    I don't just make this stuff up, you realize?

    This doesn't say that the inventor isn't important. Far from it. But it does say that the process of granting a patent severely overweights the inventor and underweights the rest of the innovation process, and that's hugely damaging to the process of innovation.

     

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  38.  
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    Just Guessing Here. . ., Jul 11th, 2008 @ 9:43pm

    Observation. . .

    Willton is a Liberal/Democrat.

    Most everyone who disagrees with him is a Republican/Conservative.

    Just shooting in the dark here.

     

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  39.  
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    Anonymous Coward, Jul 11th, 2008 @ 10:23pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Why not?

    On April 6, 1858, Abraham Lincoln gave his first lecture on "Discoveries and Inventions" before the Young Men's Association of Bloomington, Illinois, and the lecture expresses Lincoln's views concerning the incorporation of the Patent and Copyright Clause into the Article 1 enumerated powers of Congress.

    James Madison, in Federalist no. 43, writes, "The utility of this power will scarcely be questioned. The copyright of authors has been solemnly adjudged, in Great Britain, to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors. The public good fully coincides in both cases with the claims of individuals."

    Chapter 9 (entitled The Tournament) of Mark Twain's "A Connecticut Yankee in King Arthur's Court" provides:

    "They were always having grand tournaments there at Camelot; and very stirring and picturesque and ridiculous human bull-fights they were, too, but just a little wearisome to the practical mind. However, I was generally on hand -- for two reasons: a man must not hold himself aloof from the things which his friends and his community have at heart if he would be liked -- especially as a statesman; and both as business man and statesman I wanted to study the tournament and see if I couldn't invent an improvement on it. That reminds me to remark, in passing, that the very first official thing I did, in my administration -- and it was on the very first day of it, too -- was to start a patent office; for I knew that a country without a patent office and good patent laws was just a crab, and couldn't travel any way but sideways or backways."

    Of course there are numerous other political and literary quotes expressed by others notable figures who cut across the entirety of our society and who reflect the above views, but their names and views have been omitted in the interest of brevity.

    Not that these views carry any significant weight in the sense that they do not derive from "peer reviewed articles", but it does seem that there are many historical figures we hold in high regard who tended to view the world a bit differently from what is advocated here. Perhaps this is/was due to the fact that each of them were pragmatic and grounded in the real world, and not the academic world in which most scholars appear firmly ensconsed.

    Perhaps they may give you some modest amount of insight into how at least some historical figures viewed what "progress" entails.

    Re Bessen and Maskin, I read their article many years ago and was immediately struck by many of the assumptions that gird their conclusions. Even a lawyer early into his/her career who has taken the time to be more than just a journeyman would quickly pick up on these assumptions and articulate their numerous shortcomings.

    I do not for one moment doubt the sincerity of those in academia who examine this body of law from an economic perspective, nor do I doubt that many are preeminent in their field. Where I believe they uniformily fall short is that the data sets they use are not particularly relevant to address the many issues associated with the subjects they attempt to examine.

     

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  40.  
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    kiba, Jul 12th, 2008 @ 2:48am

    Re: Observation. . .

    Way to pigeonhole everyone.

    For the record, I am a libertarian. I am sure a lot of techdirt readers are also libertarians.

     

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  41.  
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    A.T.S., Jul 12th, 2008 @ 9:15am

    Re: Re: Observation. . .

    Yup. I'm a Librarian, too!

     

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  42.  
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    Mike (profile), Jul 12th, 2008 @ 11:56am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Why not?

    Wait... so a few random quotes from people without data outweigh those who actually have done the research and looked at the data?

    Interesting.

    Do you think it's possible that if those preeminent thinkers actually had the data and the evidence they would think otherwise? (and, btw, Mark Twain's views on intellectual property have been widely discredited -- especially since he believed that IP should be permanent)

    And you don't explain what is actually wrong with Bessen/Maskin -- you just say that their assumptions are wrong.

    Could you actually provide some proof or is that too difficult?

     

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  43.  
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    Bugs Bunny, Jul 12th, 2008 @ 12:33pm

    Market innovation?

    The market place does not judge and reward true innovation. Market success is more to do with marketing strategies than product innovation. Just look at MacDonalds and Microsoft. Konami got their patents first. They are entitled to sue the copycats.

     

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  44.  
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    Mike (profile), Jul 12th, 2008 @ 12:49pm

    Re: Market innovation?

    The market place does not judge and reward true innovation. Market success is more to do with marketing strategies than product innovation. Just look at MacDonalds and Microsoft. Konami got their patents first. They are entitled to sue the copycats.

    You have an incorrect view of what innovation is. Marketing is a part of it. Why? Because marketing is figuring out what the market actually wants.

    So, I'm afraid you are wrong. The marketplace *does* reward true innovation -- otherwise the marketplace wouldn't buy the product. McDonalds and Microsoft both innovated in their own way, and the market rewarded them for it.

    Just because you don't like it, doesn't mean the market was wrong. It just means that the world disagrees with you on what is and is not innovation.

    And, luckily, we live in a capitalist economy where no one has appointed you the boss of what is and is not innovation. So we let the market tell us.

     

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  45.  
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    Anonymous Coward, Jul 12th, 2008 @ 1:06pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Why not?

    Perhaps it would help if you noted that my references were nothing more than some examples that might give some insight into how others may view "progress" in a manner that is not aligned with yours. I daresay that even Thomas Jefferson's view departs in several material respects from yours.

    As for Bessen and Maskin, I stated only that many of their assumptions were wrong. Totally ignoring patents, if they took the time to actually sit down with inventors and inform themselves how the process really works it would likely give them pause for concern. As an example, they seem so preoccupied with R&D expenditures that I must wonder if they truly understand that most inventions do not arise at the R&D stage (I am using R&D in the context of how it is usually understood within organizations having R&D as a line item in their budgets).

    I will go no further than the above comment because specific criticisms do not admit to "sound bites".

    Of course you will immediately disagree, and perhaps even retort with a disagreeable comment. Nevertheless, my experience working closely with both inventors and authors informs me that the process of creating inventions and works of authorship are much more subtle and complex than Messrs. Bessen and Maskin assume.

     

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  46.  
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    Jake, Jul 12th, 2008 @ 1:43pm

    None of this is new anyway. A guitar simulator-type video game was released with its own custom controller back in 1995; you can find the details at http://en.wikipedia.org/wiki/Quest_for_Fame

    Quest For Fame is a simulation adventure game where the player becomes a rock guitarist, working his way up from lonesome bedroom rehearsals to becoming a garage band member, playing clubs and ultimately becoming a rock legend.

    The game is based on tunes by Aerosmith and is played by a special device called "V-Pick" that's included in the box. The device is connected to the PC via the parallel port. It contains simple vibration sensing electronics so that the player can simulate playing a guitar by strumming it along a tennis racket, a baseball bat or just the thigh.

    Virtual Music also sold a more realistic virtual guitar device that could be connected to the computer's serial port. Additional buttons permitted adjusting the player's guitar volume and feedback effects in the game. Instead of being equipped with full strings, there was only a small part of the guitar with exposed nylon strings on the body...

    ... The game includes a helpful display called the "Rhythtm EKG" (short "REKG"), indicating the guitar activity of the currently playing song in the upper half and the player's input in the lower half. If the EKG peaks of both categories are closely matching, the player is playing well...

    ... Quest for Fame was the successor to pretty similar earlier games called Born To Rock and Welcome To West Feedback (bundled with the Virtual Guitar). These games included a variety of music instead of primarily Aerosmith tunes.


    That ought to be enough prior art for anyone.

     

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  47.  
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    trollificus, Jul 12th, 2008 @ 6:57pm

    Actually, Jake, that ought to be enough prior art for SOMEBODY WHO WORKED ON THAT GAME* TO SUE EVERYBODY.

    *-no necessarily the "inventor" so glorified by Wilton and AC. More likely a sneering, top-hatted and moustachioed villain who obtained the rights to the patents in exchange for freeing the inventor's daughter from the railroad tracks.

    At least, I think that's how it works.

     

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  48.  
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    Trollificus, Jul 12th, 2008 @ 6:58pm

    Dang. That should read "patent troll" instead of villain.

     

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  49.  
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    Anonymous Coward, Jul 12th, 2008 @ 9:30pm

    Re: Re: Market innovation?

    In my initial response I noted:

    "I will go no further than the above comment because specific criticisms do not admit to "sound bites"."

    Some criticisms of the Bessen/Maskin methodology can be found in a critique in 2001 by Greg Aharonian. It is not so much Aharonian's criticisms that piqued by interest, but rather the Bessen/Maskin response to his criticism. Their response is far more telling because it eschews the formalism of the original article and presents their arguments in a more readily understood format.

    Noteworthy was their Sections 2 and 3. In Section 2 they place numerous qualifiers on their article, as well as noting its very limited scope and purpose. In Section 3 they conclude with what I would term a "Jeremiah Wright Sermon", trotting out all of the standard and overused anti-patent rhetoric.

    I am not down on economists in general. What I am down on are articles that start with assumptions not particularly relevant to the issue, and then selectively defining a limited data set supporting their desired end goal. Just once I would like to see an article that is not end result oriented, but actually examines such issues in a manner that I would consider to be that of one attempting to be an "honest broker".

    Lest you think my criticisms are limited to economic studies, I apply the same criteria to articles by lawyers and others who likewise discuss such issues. Whenever I read an article that starts out with "patents do promote innovation" I am predisposed to dismiss it immediately because it too is predicated on an erroneous assumption.

     

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  50.  
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    DS, Jul 13th, 2008 @ 10:34am

    "Harmonix has created a hugely successful product in the space -- Konami has not. "

    Really? Is that why the Freaks line of games are rather popular in Japan? And has been so for longer than Guitar Hero has been in the States?

    Comeon Techdirt, I expect better from you. This is the exact type of slip-shod reactionary reporting that you call others out on.

     

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  51.  
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    Mike (profile), Jul 13th, 2008 @ 12:54pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Why not?

    Perhaps it would help if you noted that my references were nothing more than some examples that might give some insight into how others may view "progress" in a manner that is not aligned with yours. I daresay that even Thomas Jefferson's view departs in several material respects from yours.

    Huh? We are discussing two separate things. One would be an actual way of *measuring* progress -- which those quotes do nothing to provide.

    The second is looking at the actual evidence concerning the success of failure of patents.

    As for Bessen and Maskin, I stated only that many of their assumptions were wrong. Totally ignoring patents, if they took the time to actually sit down with inventors and inform themselves how the process really works it would likely give them pause for concern.

    The only one ignoring things appears to be you. You do realize that Bessen is a former software developer and CEO. He did not come at this from an academic background, but a practical one. And I don't see how you can possibly read their research and claim they ignored inventors. That suggests only that you have not read their research.

    As an example, they seem so preoccupied with R&D expenditures that I must wonder if they truly understand that most inventions do not arise at the R&D stage (I am using R&D in the context of how it is usually understood within organizations having R&D as a line item in their budgets).

    Yes, at times in *some* though not all of their research, they use R&D expenditure as a proxy. But they support it with plenty of other research as well.

    Of course you will immediately disagree, and perhaps even retort with a disagreeable comment. Nevertheless, my experience working closely with both inventors and authors informs me that the process of creating inventions and works of authorship are much more subtle and complex than Messrs. Bessen and Maskin assume.

    And you assume that Bessen, Maskin and myself *don't* ever work with inventors? You would be wrong, but why let that stop you.

    More importantly, though, the point of the patent system is to ensure *progress* not to protect inventors. Note that the two can be different. TO assume that we should only take the view of inventors is wrong. If that were the case, why not just give inventors monetary awards for new products. Wouldn't that be a good incentive?

     

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  52.  
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    Anonymous Coward, Jul 13th, 2008 @ 3:42pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Why not?

    Yes, I do know Mr. Bessen's background and have read many of his articles. What does not jump out at me, however, is if he is an "inventor" or a "programmer". His bio suggests the latter, and his antipathy towards patents seems more in consonance with programmers...the group that by and large raise the hue and cry that patents are creatures of "Satan"...than with inventors.

    Perhaps you do work with inventors, but your constant diatribe against them (e.g., "they may have invented, but they did not innovate", "they invented something and now are trying to rest on their laurels", etc.") strongly suggests that your exposure is quite limited.

    As for Article 1, Section 8, Clause 8, may I suggest that you read it again...and again...and again...until you assimilate what it actually says. Your interpretation of the prefacatory clause is interesting, but it has been resoundingly rejected by the Supreme Court. The operative and controlling portion of the clause is that which secures to authors and inventors for limited times the exclusive rights to their works and discoveries. Call these rights "property". Call them something else. It is irrelevant what title you give them because such a title does not in any way diminish what the operative clause states.

    You praise Bessen and Meurer's recent book, and yet if you carefully review its introduction you will quickly realize that their approach is to read the word "inventor" (and, presumably, "author" as well) out of the Constitution entirely. It seems to me that each of them would likewise benefit from reading the clause again...and again...and again...until they too assimilate what it actually says.

    On a final note, do take a look at my comments in 49 above, paying particular attention to my last two paragraphs. I welcome "honest broker" scholarship, no matter what discipline happens to be involved. Neither Bessen & Maskin nor Bessen & Meurer strike me as "honest brokering".

     

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  53.  
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    Mike (profile), Jul 13th, 2008 @ 6:19pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Why not?

    Yes, I do know Mr. Bessen's background and have read many of his articles. What does not jump out at me, however, is if he is an "inventor" or a "programmer". His bio suggests the latter, and his antipathy towards patents seems more in consonance with programmers...the group that by and large raise the hue and cry that patents are creatures of "Satan"...than with inventors.

    Neat trick. You're twisting what we were discussing. You suggested that Bessen was an ivory tower academic who had no experience in the real world. I point out that he does, and you suggest that his real world experience doesn't matter because it's not the *right type* of experience.

    Even better, you then complain that *he* apparently ignores "inventors" (which he clearly does not). Have you even read his book?

    I'm afraid, despite your claims to the contrary, that it is you who have misread the Constitution. The operative phrase (and, yes, you might want to read it again and again and again yourself) is to promote the progress. You are overplaying the importance of "inventors". It was never intended to merely protect inventors but to promote the progress.

    If you think protecting inventors is more important than promoting the progress then I again ask you why you don't support merely handing over monetary rewards to inventors.

    After all, wouldn't that be better for inventors?

    The operative and controlling portion of the clause is that which secures to authors and inventors for limited times the exclusive rights to their works and discoveries.

    No, the operative part is for the sake of "promoting the progress." If such actions do not promote the progress, then they are unconstitutional.

    On a final note, do take a look at my comments in 49 above, paying particular attention to my last two paragraphs. I welcome "honest broker" scholarship, no matter what discipline happens to be involved. Neither Bessen & Maskin nor Bessen & Meurer strike me as "honest brokering".

    This is the most hilarious of all. You claim you want an "honest broker" yet you call someone's explanation a "Jeremiah Wright Speech." You are clearly quite a biased individual on this matter yourself. The idea that you are looking for an honest broker is laughable.

    Let me ask you: do you make any money from the patent system at all? Since you refuse to identify yourself, I can only guess, but I believe you are a patent attorney. How could you possibly be considered an honest broker when you are discussing a system which pays your salary?

    Compare that to the folks who are presenting actual evidence -- those who do not profit one way or the other. What benefit could they possibly have in arguing against the system compared to you, who directly profits from it?

    Honest broker? Yeah, right.

     

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  54.  
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    Anonymous Coward, Jul 13th, 2008 @ 6:51pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Why not?

    "Let me ask you: do you make any money from the patent system at all?"

    No.

     

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  55.  
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    Mike (profile), Jul 13th, 2008 @ 10:14pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Why not?


    No.


    Then what do you do?

     

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  56.  
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    Willton, Jul 14th, 2008 @ 6:42am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Why not?

    No, the operative part is for the sake of "promoting the progress." If such actions do not promote the progress, then they are unconstitutional.

    What is your authority that states this? Or have you become a constitutional scholar now?

     

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  57.  
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    DanC, Jul 14th, 2008 @ 7:07am

    Re:

    Really? Is that why the Freaks line of games are rather popular in Japan? And has been so for longer than Guitar Hero has been in the States?

    Since GuitarFreaks was released in 1999, Konami has neglected to release the product in US, only performing tests and ultimately abandoning the marketplace to focus on Japan.

    Harmonix made a successful product in the U.S. market, Konami did not. So, the article is accurate on that point and hardly "slip-shod reactionary".

     

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  58.  
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    DanC, Jul 14th, 2008 @ 7:21am

    Re: Observation. . .

    That's funny...I'm a liberal and a Democrat and I wholeheartedly disagree with Willton on just about everything.

     

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  59.  
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    Anonymous Coward, Jul 14th, 2008 @ 7:58am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Why not?

    "Then what do you do?"

    Many things, but one I find quite interesting, and challenging at the same time, is attempting to understand your views on the subject of "intellectual property". I put the term in quotes because it embraces far more than patents and copyrights. Even more interesting, however, is to read the comments to your articles, most of which seem to be purely visceral reactions that "intellectual property" is a bad thing with nothing to commend it.

     

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  60.  
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    MLS, Jul 14th, 2008 @ 8:49am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Why not?

    Perhaps Eldred v. Ashcroft, Graham v. John Deere, and other older cases touching upon the Patent and Copyright Clause. Reliance upon them, however, to support the proposition that patents and copyright must promote progress is problematic in view of Eldred's notation that what does and does not promote progress is within the discretion of Congress and will be reviewed by the court using the "rational basis" standard, the same standard as was used in Kelo v. City of New London. In other words, unless Congress has clearly and unmistakably gone "insane" as was the the case in United States v. Lopez (a Commerce Clause case) the Supreme Court will defer to the judgement of Congress (this is my 3 second "Cliff Notes" summary of a complex issue).

    There is another way to view "promoting progess" as used in the clause, and that is virtually any act of Congress under the power conferred by the Patent and Copyright Clause will be upheld so long as Congress does not confer on authors and inventors the exclusive rights to their works and inventions if in doing so exclusivity is provided to works that are not original and inventions that are not new. The Supreme Court has clearly focused on whether or not the conferral of such rights would withdraw subject matter that is already in the public domain.

    Perhaps at some time in the future a case might arise where a significant tension exists between an act of Congress under the Patent and Copyright Clause and another constitutional right (e.g., the First Amendment's free speech guarantee), but as yet such a case has not been presented to the court for its consideration. I belive Lessig tried to present such a situation when he argued on behalf of Eldred in Eldred v. Ashcroft, but the court did not buy it.

    For brevity's sake I will stop here, but do want to note that there are many other aspects of MM's opinion about the Patent and Copyright Clause that do not comport with the entirety of the clause.

     

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  61.  
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    Mike (profile), Jul 14th, 2008 @ 11:16am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Why not?

    Many things

    Including avoiding the question.

    Even more interesting, however, is to read the comments to your articles, most of which seem to be purely visceral reactions that "intellectual property" is a bad thing with nothing to commend it.

    Not at all. As I've pointed out in the past, I used to be a strong supporter of the system, and I'm not at all against it if someone were to show some sort of *evidence* that it actually does help promote the progress.

    But no one ever seems able to do so.

    The key is to support innovation. And I'm in favor of any system that does so.

     

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  62.  
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    MLS, Jul 14th, 2008 @ 11:37am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Why not?

    By "comments to your articles" I was referring to only those by your readers.

    "The key is to support innovation"

    I disagree in the sense that I view the principal purpose of the Patent and Copyright Clause as encouraging the dissemination of information to the public, be it contained in a work of authorship or in the description of an invention.

    "Including avoiding the question."

    Guilty as charged.

     

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  63.  
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    angry dude, Jul 14th, 2008 @ 12:12pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Why not?

    "...but one I find quite interesting, and challenging at the same time, is attempting to understand your views on the subject of "intellectual property"...

    There is nothing interesting or challenging here: Mike is a known shill for large multinational tech robber baron corporations
    Just look at his company balance sheet to see where the money comes from...

    Follow the money, dude, always follow the money...

     

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  64.  
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    Mike (profile), Jul 14th, 2008 @ 1:48pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Why not?

    Wait a second... I was responding to someone who was commenting as an Anonymous Coward, and now MLS is admitting that AC was him.

    By "comments to your articles" I was referring to only those by your readers.

    And that AC denied that he made money from the patent system, yet MLS has already acknowledged that he's an IP attorney, meaning that he directly profits from the existing system.

    In other words, MLS, you've just been caught lying.

    Guilty as charged.

    Indeed.

    I disagree in the sense that I view the principal purpose of the Patent and Copyright Clause as encouraging the dissemination of information to the public, be it contained in a work of authorship or in the description of an invention.

    No. That would be wrong. Nowhere in the clause does it say that it's about encouraging the dissemination of information. It says it's for promoting the progress. That may be helped along by the dissemination of ideas, it might not be.

     

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    Mike (profile), Jul 14th, 2008 @ 1:52pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Why not?

    There is nothing interesting or challenging here: Mike is a known shill for large multinational tech robber baron corporations

    This is the charge that angry dude, stv and others have thrown at me whenever they realize they have no other argument.

    Amusingly, they go perfectly silent when I point to evidence to the contrary. For example:

    * Techdirt does no public policy work and never has.
    * I disagree with the patent reform proposal that was put forth by the companies that angry dude insists I'm "shilling" for.
    * I believe that big companies are bigger abusers of the patent system than small inventors and I have said so repeatedly.
    * I publicly slam those same big companies when they are shown to be abusing the patent system.

    But, angry dude has shown in the past that he doesn't believe in things like "facts" or "evidence" so why should this time be any different.

     

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  66.  
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    MLS, Jul 14th, 2008 @ 3:23pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Why not?

    In other words, MLS, you've just been caught lying.

    Not really. I have not practiced it for at least 8 years. I do keep up with it, however.

    No. That would be wrong.

    You should take a look at Eldred and Graham noted in Post 60 above. At least one portion of the opinion in Eldred addresses your view that "promote progress" is a substantive limitation. On pp. 21 and 22 of the opinion can be found:

    "More forcibly, petitioners contend that the CTEA's
    extension of existing copyrights does not promote the
    Progress of Science” as contemplated by the preambular
    language of the Copyright Clause. Art. I, §8, cl. 8. To
    sustain this objection, petitioners do not argue that the
    Clause’s preamble is an independently enforceable limit on Congress’ power. See 239 F. 3d, at 378 (Petitioners
    acknowledge that “the preamble of the Copyright Clause is
    not a substantive limit on Congress’ legislative power.”
    (internal quotation marks omitted))."

    Note that the petitioner ceded the "progress" point,i.e., it is not viewed as a substantive limitation to article 1, Section 8, Clause 8. BTW, counsel for Eldred was Lessig.

    As for the most basic purpose underlying patent and copyright law, it is to encourage the dissemination of information publicly, and the means to that end is what has been embraced by the enactment of Title 17 (Copyright) and Title 35 (Patent).

     

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    Mike (profile), Jul 14th, 2008 @ 3:34pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Why not?

    Not really. I have not practiced it for at least 8 years. I do keep up with it, however.

    Ah. Well, then I'll quote from you from just last week:

    http://www.techdirt.com/article.php?sid=20080703/0324061588#c601

    For whatever assurance it may provide my name is Michael L. Slonecker, an attorney licensed in California who has practiced all aspects of IP law in both private and corporate settings for almost 30 years. You will not find me to be a prolific publisher of journal articles simply because much of my research is tactically oriented, and my views are consequently not the type I would ordinarily share in open forums. I see nothing to be gained by sharing with the world my take on issues that are best left to situations where an issue is squarely presented in business negotiations and/or litigation. Why give competing interests a peek at my "legal hand"? It seems to me that would be self defeating, especially when the other party stands on very shaky legal grounds.

    So last week you wanted us to believe not only were you so active still active in IP litigation, but that you had such an important strategy in the space that you wouldn't reveal it at all.

    If the truth is you don't practice law any more, then why would you keep those views secret?

    So, which is it? Were you lying last week or this week?

    Note that the petitioner ceded the "progress" point,i.e., it is not viewed as a substantive limitation to article 1, Section 8, Clause 8. BTW, counsel for Eldred was Lessig.

    Yes, as Larry Lessig made clear in his later deconstruction of his arguments in Eldred, he decided to pick and choose which battles to fight -- and that was one that was not worth fighting. I'm not sure how the fact that Lessig ceded that point in that particular fight means that the question has been decided. It has not.

    As for the most basic purpose underlying patent and copyright law, it is to encourage the dissemination of information publicly

    You keep repeating that, but there is nothing to suggest that's even close to true. The statute does not say "In order to encourage the dissemination of information publicly..." it says "To promote the progress..."

     

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    MLS, Jul 14th, 2008 @ 5:40pm

    "You keep repeating that, but there is nothing to suggest that's even close to true. The statute does not say "In order to encourage the dissemination of information publicly..." it says "To promote the progress...""

    A cursory search using Google should demonstrate what I am trying to convey. For example, the first copyright law, the Copyright Act of 1790, commences with:

    "An Act for the encouragement of learning..."

    A perusal of:
    http://jolt.law.harvard.edu/articles/pdf/v16/16HarvJLTech001.pdf

    makes a similar point (albeit digressing into many other issues pertaining to the then upcoming argument before the Supreme Court of Eldred v. Ashcroft).

     

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  69.  
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    Mike (profile), Jul 14th, 2008 @ 5:48pm

    Re:

    Heh. I'll note, for the record, MLS has not clarified whether he was lying this week or last concerning his assertion over whether or not he was a practicing attorney that did work in the IP field.

    You also ignore the other point I made concerning Lessig's explanation of how he defended Eldred.

    A cursory search using Google should demonstrate what I am trying to convey. For example, the first copyright law, the Copyright Act of 1790, commences with:

    "An Act for the encouragement of learning..."


    Ah, and the act overrides the purpose of the Constitutional Clause? No, we were talking about the purpose of the constitutional clause, which you continue to insist is not based on the concept of promoting the progress.

    We are talking about the *most basic purpose* (your words) of patent and copyright law. And that is "to promote the progress." Promoting the dissemination of ideas may be a way of achieving this, but the most basic purpose is to promote the progress.

     

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  70.  
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    MLS, Jul 14th, 2008 @ 6:29pm

    Re: Re:

    Not that it will dissuade you, but yet another example can be found at:

    http://papers.ssrn.com/sol3/papers.cfm?abstract_id=337182

    There are many, many more journal articles and judicial decisions that make this point.

     

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  71.  
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    MLS, Jul 14th, 2008 @ 9:58pm

    Re: Re:

    Might I suggest you take a look at the following, which at the time was a working draft of a paper that apparently was later published in a law journal:

    http://cyber.law.harvard.edu/openlaw/eldredvashcroft/progress.html

     

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  72.  
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    Mike (profile), Jul 14th, 2008 @ 10:30pm

    Re: Re: Re:

    Once again, MLS refuses to respond to the question of whether he was lying last week or this week.

    Not that it will dissuade you, but yet another example can be found at:

    That "example" is someone's opinion. Not the Supreme Court's or some sort of empirical evidence. I could just as easily point to some other scholar's opinion on the subject showing the opposite.

     

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    angry dude, Jul 15th, 2008 @ 7:01am

    Re: Re: Re: Re:

    "I could just as easily point to some other scholar's opinion on the subject showing the opposite."

    that's right Mikey

    "scholar's" opinions are dime a dozen nowadays
    You can have any opinion you want, as long as you (or your corporate puppeteers) pay for their "research"

     

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  74.  
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    Willton, Jul 15th, 2008 @ 7:10am

    Re: Re: Re: Re:

    That "example" is someone's opinion. Not the Supreme Court's or some sort of empirical evidence. I could just as easily point to some other scholar's opinion on the subject showing the opposite.

    And yet, you haven't.

     

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    MLS, Jul 15th, 2008 @ 9:16am

    Re: Re: Re: Re:

    Mr. Masnick,

    "That "example" is someone's opinion. Not the Supreme Court's or some sort of empirical evidence. I could just as easily point to some other scholar's opinion on the subject showing the opposite."

    You have repeatedly made two points concerning the Patent and Copyright Clause. First, you posit that its recital of "promote the progress" is a substantive limitation on the power of Congress. Second, you posit that "promote the progress" is an economic concept, and that when measured against this economic concept the current patent and copyright laws fall short of the mark.

    To your points I have responded that "promote the progress" has been held to not impose a substantive limitation on the power of Congress, and that "promote the progress" is a phrase that in its most fundamental sense contemplates the encouragement of information being broadly disseminated in public forums for its salutory effect of enhancing learning.

    To each of your points I have provided citations to several references comprising judicial decisions and journal articles. As I have noted, the citations are to representative examples, and that a wealth of uncited decisions and articles can easily be found that are consistent with my comments. Apparently these citations are found wanting because they are either merely the opinions of the author(s) and/or lack empirical data. It seems to me what you are overlooking is that the two points concerning "promote the progress" are matters of constitutional law and constitutional interpretation.

    Why you seem to be taking such a hard stance eludes me given that you are an open advocate of the information sharing that necessarily occurs when "words" are shared/disseminated with/to the public at large. Since, as you correctly note, works of authorship and inventions do build upon what has come before, it would seem difficult for the public to do so were such works and inventions never shared in the first instance.

    Obviously I am missing the essential thrust of your points. Perhaps you can share citations to judicial decisions and journal articles concerning this matter of constitutional interpretation from which you believe you draw support.

    By the way, I am an attorney with 30 years of practice under my belt, a member of the California Bar, a member of the USPTO Bar, and have practiced, inter alia, all manner of patent, trademark, copyright, trade secret, unfair competition, and related causes (prior to this I was a commissioned office in the US Navy and served as Naval aviator). I have not, however, engaged in client representation before the courts and administrative agentice for the past several years, haveing chosen instead to serve as a consultant in matters relating to numerous legal and business matters. When you ask questions about my experience, this is what I draw upon. When you ask if I am a patent attorney and receive compensation from the "patent system", the only fair answer I can give is "no". While there may be some indirect benefit given that I consult in matters that may involve some aspects of domestic and international patent law, that is a relatively minor part of what I do. My primary interest lies in assisting public and private entities to transfer technology to others to facilitate the creation of start-ups. While at times patents may enter the picture, in most instances it involves the sharing of trade secrets, know-how, show-how, manufacturing data, technology support by the transferee to the recipient, business plan development, venture capital financing, key personnel indentification and recruitment for initial staffing of the start-up, etc. As an aside, one of my most challenging jobs it to try and keep technology transferrors from resisting the urge to insinuate themselves from attempting to control or have a veto over the operating decisions made by the start-ups. The transferees are the ones best suited to such decisions decisions since they are the ones who understand their respective markets. To be blunt, transferrors typically know diddly squat about markets outside their core business, and part of my job is to convince them of this in a manner that does not raise their hackles and help them understand why a total hands-off approach best serves their interests.

    MLS

     

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  76.  
    identicon
    MLS, Jul 15th, 2008 @ 9:29am

    Re: Re: Re: Re:

    One final point. I mentioned I am not inclined to wax poetic in journal articles. This is a habit I acquired when I was representing clients because in many instances a journal article would have been foolhardy.

    Were I so inclined, I could today prepare such articles, but I simply do not have the time to do so. Instead, I share my views and opinions with many persons within and outside academia who are predisposed to produce copious amounts of such articles.

     

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  77.  
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    Mike (profile), Jul 15th, 2008 @ 10:19am

    Re: Re: Re: Re: Re:

    And yet, you haven't.

    I have many times over the years.

    Just use Google and do a little search on James Boyle, Jessica Litman, or Larry Lessig to get started.

     

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  78.  
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    Mike (profile), Jul 15th, 2008 @ 10:32am

    Re: Re: Re: Re: Re:

    You have repeatedly made two points concerning the Patent and Copyright Clause. First, you posit that its recital of "promote the progress" is a substantive limitation on the power of Congress. Second, you posit that "promote the progress" is an economic concept, and that when measured against this economic concept the current patent and copyright laws fall short of the mark.

    Yes. This is accurate.

    To your points I have responded that "promote the progress" has been held to not impose a substantive limitation on the power of Congress, and that "promote the progress" is a phrase that in its most fundamental sense contemplates the encouragement of information being broadly disseminated in public forums for its salutory effect of enhancing learning.

    And yet, you have not shown sufficient evidence that these positions make sense. Yes, you have pointed to some scholars opinions on that -- just as I have pointed to some scholars opinions suggesting the opposite.

    However, I have *also* pointed to economic research showing how such monopoly grants *hinder* the progress. Much of this research is relatively new, and years of myth making from those who profit from the old system have many people believing that any monopoly grant promotes the progress. Getting people to realize this is not true is an uphill battle.

    You have not, as far as I can tell, pointed to a single bit of evidence that suggests "information dissemination" outweighs promoting the progress, despite my asking multiple times.

    You also have not, despite repeated questioning, given an explanation of how progress *should* be determined (unless you consider progress to merely be the dissemination of ideas). If that's the case, then I would argue that progress is still determined under an economic analysis: after all, there needs to be a greater economic pie to encourage greater dissemination of ideas.

     

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  79.  
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    angry dude, Jul 15th, 2008 @ 10:39am

    Re: Re: Re: Re: Re: Re:

    Come on, Mikey

    you think you are a smart ass, throwing around names of "scholars" with their so-called "research" ?

    You think they know better about patents and copyrights than the people in the trenches - the actual creators trying to use the system to make a living ?

    Come on now, don't play us for fools

     

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  80.  
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    MLS, Jul 15th, 2008 @ 12:28pm

    Re: Re: Re: Re: Re: Re:

    "Yes. This is accurate."

    Hallelujah! Agreement on at least one matter!

    "And yet, you have not shown sufficient evidence that these positions make sense. Yes, you have pointed to some scholars opinions on that -- just as I have pointed to some scholars opinions suggesting the opposite."

    Your citations and mine are directed to separate issues. Yours are directed towards an economic analysis of whether or not the laws as now embodied in the US Code are what I would term "economically optimal" for society at large, i.e., do they in fact strike a proper balance between private and public interests. Mine are directed to an analysis of the Patent and Copyright Clause itself and how it has been interpreted by scholars and jurists alike. Such interpretation, while it may have downstream economic impacts, is one of law.

    I will leave defining the term "progress" to another day because it is not one that admits to an easy answer.

     

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  81.  
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    Willton, Jul 15th, 2008 @ 1:21pm

    Re: Re: Re: Re: Re: Re:

    You have not, as far as I can tell, pointed to a single bit of evidence that suggests "information dissemination" outweighs promoting the progress, despite my asking multiple times.

    That's because information dissemination and scientific progress are not mutually exclusive. One does not outweight the other because they are not separate and distinct. One is a cause; the other is an effect.

    By the way, you say "promotes the progress" so much that I'm not sure you even know what it means. Read the relevant part of the Constitution again. It's "the Progress of Science and useful Arts," not just "the progress." The word "Progress" does not stand alone, despite the number of times you write it that way.

     

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  82.  
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    Willton, Jul 15th, 2008 @ 1:26pm

    Re: Re: Re: Re: Re: Re:

    I have many times over the years.

    Just use Google and do a little search on James Boyle, Jessica Litman, or Larry Lessig to get started.


    No, Mike, it is not our job to find evidence for you that supports your position. If you are going to make a claim that there are scholars who have opined on the Patent and Copyright Clause in conformity with your views, then it is your burden to present those opinions. Otherwise your claims ring hollow.

     

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  83.  
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    Mike (profile), Jul 15th, 2008 @ 3:18pm

    Re: Re: Re: Re: Re: Re: Re:

    Your citations and mine are directed to separate issues. Yours are directed towards an economic analysis of whether or not the laws as now embodied in the US Code are what I would term "economically optimal" for society at large, i.e., do they in fact strike a proper balance between private and public interests.

    No, that is incorrect. I have pointed to both legal and economic scholars. In fact, the ones I listed above are all legal scholars. And, also, I disagree with the idea that we're talking about finding the proper "balance" (though some do term it that way). The optimal result isn't a balance because the optimal result isn't a struggle between both sides, but a situation where everyone benefits.

    But, on the whole, I would think that everyone *should* (though clearly you do not) agree that the economic analysis is more important than the legal one. The legal one focuses on how to interpret the law, whereas the economic analysis is focused on how do we make everyone better off.

    It seems to me to be rather obvious that if the law prevents everyone from being better off -- and, in fact, makes everyone worse off, then there's a serious problem with the law.

    You have disagreed with this, which (frankly) baffles me. I cannot comprehend how anyone could possibly claim that they prefer a world that makes everyone worse off. I have asked you for clarification on this, but have not received any.

    I will leave defining the term "progress" to another day because it is not one that admits to an easy answer.

    Fair enough. Though, I find it odd that I've been questioning this point for months now, and you claim at times to have answered it when you have not.

     

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  84.  
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    Mike (profile), Jul 15th, 2008 @ 3:23pm

    Re: Re: Re: Re: Re: Re: Re:

    That's because information dissemination and scientific progress are not mutually exclusive. One does not outweight the other because they are not separate and distinct. One is a cause; the other is an effect.

    I never claimed that they were mutually exclusive. In fact, I agree that they often work hand in hand (in fact, please read what I wrote again, because I thought I said almost exactly that: that if you were to promote the progress by expanding the pie, you almost automatically guarantee wider dissemination of information).

    But MLS contended that the *most* important thing was to focus on the dissemination of information. I don't see how that could possibly be true, since that's not even mentioned in the constitutional clause.

    Instead, it's promote the progress. If you focus on just the dissemination of information, you could do that in a way that hinders, rather than promotes, the progress. Yet, if you focus on the *most* important part (promoting the progress) then you are likely to lead to wider dissemination of information.

    By the way, you say "promotes the progress" so much that I'm not sure you even know what it means. Read the relevant part of the Constitution again. It's "the Progress of Science and useful Arts," not just "the progress." The word "Progress" does not stand alone, despite the number of times you write it that way.

    I know the clause (don't be pedantic). And, actually it's usually me reminding folks of the entire clause rather than the other way around. I use the short hand because I assume (perhaps incorrectly) that folks like you and MLS are fully aware of the full clause.

    Yet, despite your pedantic statement, you have yet to explain how the entire clause places the importance of disseminating information *above* the importance of promoting said progress.

     

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  85.  
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    Mike (profile), Jul 15th, 2008 @ 3:26pm

    Re: Re: Re: Re: Re: Re: Re:

    No, Mike, it is not our job to find evidence for you that supports your position.

    I never said it was your job. What I said was that I had posted them in the past.

    If you are going to make a claim that there are scholars who have opined on the Patent and Copyright Clause in conformity with your views, then it is your burden to present those opinions.

    And I have. You can choose to ignore them all you want, but it doesn't change the fact that they exist and I have linked to them.

    That I choose not to redo the work I have already done for you, which you chose to ignore speaks more to your willingness to actually read what I have written than to my ability to prove a point.

     

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  86.  
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    Willton, Jul 15th, 2008 @ 3:52pm

    Re: Re: Re: Re: Re: Re: Re: Re:

    But MLS contended that the *most* important thing was to focus on the dissemination of information. I don't see how that could possibly be true, since that's not even mentioned in the constitutional clause.

    Instead, it's promote the progress. If you focus on just the dissemination of information, you could do that in a way that hinders, rather than promotes, the progress. Yet, if you focus on the *most* important part (promoting the progress) then you are likely to lead to wider dissemination of information.

    ...

    Yet, despite your pedantic statement, you have yet to explain how the entire clause places the importance of disseminating information *above* the importance of promoting said progress.


    It is statements like the one above that leads me to believe that you think the two concepts are mutually exclusive. If you didn't think so, you wouldn't be asking anyone to show why one is more important than the other.

    Dissemination of information IS promoting scientific progress. One is not above the other. Science is knowledge, and in order for knowledge to progress, it usually must build upon what is already known, as you have pointed out in many instances. Well, if such information is kept secret, it is difficult if not impossible for those who would build off of that knowledge to do so. Keeping knowledge secret keeps it out of the hands of those who would improve upon it.

    And before you say it, no, patents do not keep knowledge out of others hands. The patent system does not protect ideas per se; on the contrary, the patent system helps ideas spread. The patent system only protects inventions.

     

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  87.  
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    Mike (profile), Jul 15th, 2008 @ 5:21pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re:

    It is statements like the one above that leads me to believe that you think the two concepts are mutually exclusive. If you didn't think so, you wouldn't be asking anyone to show why one is more important than the other.

    MLS made the statement that dissemination of information was the *most* important part of the system. I see no evidence that that is true. I wasn't asking which one is more important. I'm asking why MLS claims that dissemination of info is more important than promoting the progress.

    Dissemination of information IS promoting scientific progress.

    No, that's simply incorrect. Dissemination of information CAN promote the progress, but does not necessarily do so. I could disseminate plenty of info that does not promote the progress. Thus, basic logic should tell you that disseminating knowledge alone is not promoting the progress -- and if you focus on disseminating knowledge in a way that hinders the progress, that should be seen as a problem.

    Well, if such information is kept secret, it is difficult if not impossible for those who would build off of that knowledge to do so. Keeping knowledge secret keeps it out of the hands of those who would improve upon it.

    You are building a false dichotomy here, but insisting that dissemination alone promotes the progress. That's simply incorrect. If you build a system that promotes wider opportunities *via* the dissemination of knowledge (rather than seeing the dissemination of knowledge as the end goal) then you focus on *progress* not dissemination.

    And before you say it, no, patents do not keep knowledge out of others hands. The patent system does not protect ideas per se; on the contrary, the patent system helps ideas spread. The patent system only protects inventions.

    I never said that patents keep knowledge out of others hands. But it DOES hinder the dissemination of ideas by making it MORE EXPENSIVE for anyone to INNOVATE and in that process of INNOVATING to CREATE and DISSEMINATE new knowledge.

    See? In focusing solely on the dissemination of the FIRST LEVEL of information, you HINDER the later DISSEMINATION of HIGHER LEVELS of information. That's a perfect example of how focusing solely on the dissemination of info can harm the progress. Instead, if you focus on simply promoting the progress as the core goal (as per the constitution) then you would get increased dissemination of knowledge (because, as you note, that's a *PART* of promoting the progress) without the negatives.

    You seem to think that A = B, when that's not the case. A is simply one element of B, and in focusing on A you may diminish B. And that's a BIG problem, because the mandate is for B -- not A.

     

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  88.  
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    Willton, Jul 15th, 2008 @ 7:08pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    MLS made the statement that dissemination of information was the *most* important part of the system. I see no evidence that that is true. I wasn't asking which one is more important. I'm asking why MLS claims that dissemination of info is more important than promoting the progress.

    I don't think he did. The way I read his comment, he's saying that promoting scientific progress is the ultimate goal, and the most important way to do that is to make this information public.

    No, that's simply incorrect. Dissemination of information CAN promote the progress, but does not necessarily do so. I could disseminate plenty of info that does not promote the progress. Thus, basic logic should tell you that disseminating knowledge alone is not promoting the progress -- and if you focus on disseminating knowledge in a way that hinders the progress, that should be seen as a problem.

    Wow, you are obtuse. Okay sure, if I disseminated information about my personal life, yeah, that probably wouldn't promote much scientific progress. But that's not the type of information that patent law calls for. Read 35 U.S.C. Section 101:
    Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.

    Disseminating this type of information ipso facto promotes progress in the field, as the more people who know the information may improve upon it. I don't know how you can say that it does not.

    And once again, you're focusing on economic progress, which is not necessarily scientific progress. Sure, scientific progress can lead to economic progress, but that doesn't mean measuring the latter is a proper guage for the former. An analysis of history makes for a much better measuring stick.

    You are building a false dichotomy here, but insisting that dissemination alone promotes the progress. That's simply incorrect.

    That's hardly what I'm saying. What I am saying is that the dissemination of scientific information is the BEST way to promote scientific progress, whereas the opposite (keeping scientific information secret) diminishes scientific progress. I imagine there could be other ways to do so, but not in a system that promotes secrecy, either intentionally or unintentionally.

    If you build a system that promotes wider opportunities *via* the dissemination of knowledge (rather than seeing the dissemination of knowledge as the end goal) then you focus on *progress* not dissemination.

    And what kind of progress would that be?

    I never said that patents keep knowledge out of others hands. But it DOES hinder the dissemination of ideas by making it MORE EXPENSIVE for anyone to INNOVATE and in that process of INNOVATING to CREATE and DISSEMINATE new knowledge.

    See? In focusing solely on the dissemination of the FIRST LEVEL of information, you HINDER the later DISSEMINATION of HIGHER LEVELS of information. That's a perfect example of how focusing solely on the dissemination of info can harm the progress. Instead, if you focus on simply promoting the progress as the core goal (as per the constitution) then you would get increased dissemination of knowledge (because, as you note, that's a *PART* of promoting the progress) without the negatives.


    Promoting scientific progress IS the core goal of disseminating scientific information. That's why we have patent law. And yes, I know that patent law can make improving upon that information more expensive, although not necessarily so. But if we don't promote that first level of innovation, we slow the process down by inadvertently promoting secrecy.

    Any system that is designed to promote scientific progress is going to have negatives. However, the positive aspects of patent law outweigh the negative effects it can have, and those negatives can be marginalized by well drafted legislation. Your proposed solution of doing away with patent law is throwing the baby out with the bathwater.

     

    reply to this | link to this | view in thread ]

  89.  
    icon
    Mike (profile), Jul 16th, 2008 @ 12:45am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    I don't think he did. The way I read his comment, he's saying that promoting scientific progress is the ultimate goal, and the most important way to do that is to make this information public.

    I'll quote MLS: "As for the most basic purpose underlying patent and copyright law, it is to encourage the dissemination of information publicly"

    This is simply incorrect. The most basic purpose underlying patent and copyright law is to promote the progress of science and the useful arts.

    If you focus just on the dissemination of information then you will ignore cases where dissemination alone is not the best way to promote the progress.

    Disseminating this type of information ipso facto promotes progress in the field, as the more people who know the information may improve upon it. I don't know how you can say that it does not.

    No, tragically, it is not ipso facto. Example 1: If I were to, say, invent a new type of power source -- a type of engine -- that is powered in an entirely new way, and I apply for and receive a patent on it. I have now "disseminated" that information. Yet, then I work very hard to prevent anyone else from implementing my solution, such that I can capitalize on it.

    In doing so, I fail to realize that my solution has some flaws that make it not particularly productive. It breaks down often. It "leaks" in unproductive ways. Also, since I am the only supplier, I charge a HUGE amount. I discover that the market is quite limited. Who wants to spend on a super expensive engine that frequently breaks down, no matter how revolutionary it is?

    There are others out there who have the knowledge and experience to fix this and turn my revolutionary engine into something that is more effective and productive (and cheaper). But due to my litigious ways, they know that it is not worth it. Thus, their knowledge (the important knowledge: the part that would actually build a market for my product -- helping me as well as them) does not get disseminated.

    Thus, by focusing on a way just to encourage dissemination of information, combined with exclusivity rights, we have DISCOURAGED the promotion of progress of science and the useful arts.

    Example 2: I am working on a revolutionary new communication system -- say one that will allow people to communicate telepathically. I know that MLS is working on a similar solution as well. I finalize mine and am overjoyed. I write up the patent and rush it to the patent office, only to discover that MLS put forth his patent application a day earlier and completed his work a day earlier (so first to file/first to invent doesn't matter here).

    He receives the patent on "a method to communicate telepathically" and I do not. Even though he received the patent, I actually have a better working knowledge of what makes the system work. His doesn't work well and the market for telepathic devices is written off as fraud. I try to market my own product, but MLS sues and the court finds me infringing, even though mine works and his does not. The entire market for the device collapses and anyone coming up with a telepathic device is written off as coming up with yet another attempt at cold fusion.

    Information was disseminated. Progress was impeded.

    Example 3: I have an idea for a new doohickey that will provide clean drinking water to the entire world. Unbeknownst to me, part of what I invent happens to include a tiny component that is identical to, say, a component of a dialysis medical device. Another component (again unbeknownst to me) violates the patent on a special kind of netting. A third component violates a patent on a special kind of chemical component that I thought I had cooked up myself in my lab.

    I am sued by the owners of all three patents (and a few more just for fun). I cannot produce my world saving product, nor can anyone else, since the cost of licensing all of those patents greatly outweighs the benefits from making the machines.

    Disclosure? Yes. Progress? No.

    I can go on if you'd like.

    And once again, you're focusing on economic progress, which is not necessarily scientific progress. Sure, scientific progress can lead to economic progress, but that doesn't mean measuring the latter is a proper guage for the former. An analysis of history makes for a much better measuring stick.

    I'll ask again how you denote progress if it's not economic progress (and I'll repeat what I said before: economic progress is not defined monetarily, but by increasing the wider opportunity to benefit). I still cannot see how there can be any sort of scientific progress that is not economic progress.

    That's hardly what I'm saying. What I am saying is that the dissemination of scientific information is the BEST way to promote scientific progress, whereas the opposite (keeping scientific information secret) diminishes scientific progress. I imagine there could be other ways to do so, but not in a system that promotes secrecy, either intentionally or unintentionally.

    I'm not suggesting a system that promotes secrecy either. You law guys always seem to assume that no one would ever reveal anything without patents. You might want to come down into the business and tech trenches with the rest of us. That's not the way things work. Openness leads to more innovation, greater collaboration and larger opportunities. Openness always wins out in the long term. The market makes it so.

    So, sure some companies will try to keep their ideas secret. But others will surpass them with more open solutions and information will be disseminated because it will be *in the best interest* of the creators of that information to disseminate it. They'll realized that the wider that information is spread, the more benefit there will be to them. It all goes back to the business models we've described repeatedly. You add in that infinite good (information in this case) and you watch a market grow -- just so long as you've set yourself up in a position to capture the benefit of the related scarce goods.

    And what kind of progress would that be?

    Huh? The kind I described above. The kind where innovation and progress are not inhibited, but encouraged. The kind where opportunities grow.

    Promoting scientific progress IS the core goal of disseminating scientific information.

    And when it fails to do so? What then?

    And yes, I know that patent law can make improving upon that information more expensive, although not necessarily so. But if we don't promote that first level of innovation, we slow the process down by inadvertently promoting secrecy.


    Again, that's a false assumption. Secrecy won't be the business model that succeeds.

    However, the positive aspects of patent law outweigh the negative effects it can have

    I have yet to see a single shred of evidence that supports this.

    Your proposed solution of doing away with patent law is throwing the baby out with the bathwater.

    No, that's not at all true. I am simply saying, as most economists recognize, that if you are to put in place any sort of regulation to correct a market failure, you should first be required to prove (a) the market failure and (b) that the regulation is likely to create a better outcome.

    To date, you have not shown any proof of the market failure that requires a patent system, nor any evidence that the regulation creates a better outcome than the free market one.

    So I'm not throwing out the baby with the bathwater. I'm merely asking for some (any!) evidence to suggest why the regulation is needed in the first place.

     

    reply to this | link to this | view in thread ]

  90.  
    identicon
    Willton, Jul 16th, 2008 @ 7:19am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    No, tragically, it is not ipso facto. Example 1: If I were to, say, invent a new type of power source -- a type of engine -- that is powered in an entirely new way, and I apply for and receive a patent on it. I have now "disseminated" that information. Yet, then I work very hard to prevent anyone else from implementing my solution, such that I can capitalize on it.

    In doing so, I fail to realize that my solution has some flaws that make it not particularly productive. It breaks down often. It "leaks" in unproductive ways. Also, since I am the only supplier, I charge a HUGE amount. I discover that the market is quite limited. Who wants to spend on a super expensive engine that frequently breaks down, no matter how revolutionary it is?

    There are others out there who have the knowledge and experience to fix this and turn my revolutionary engine into something that is more effective and productive (and cheaper). But due to my litigious ways, they know that it is not worth it. Thus, their knowledge (the important knowledge: the part that would actually build a market for my product -- helping me as well as them) does not get disseminated.

    Thus, by focusing on a way just to encourage dissemination of information, combined with exclusivity rights, we have DISCOURAGED the promotion of progress of science and the useful arts.


    An intelligent inventor would know that by making improvements to your technology, he likely will invent a product that does not infringe on your patent. By looking at where you went wrong and making improvements thereof, others create a new product that likely is not covered by every element of your broadest claim.

    This is how Edison obtained a patent on his incandescent lightbulb, despite there being other such lightbulbs in the prior art.

    Example 2: I am working on a revolutionary new communication system -- say one that will allow people to communicate telepathically. I know that MLS is working on a similar solution as well. I finalize mine and am overjoyed. I write up the patent and rush it to the patent office, only to discover that MLS put forth his patent application a day earlier and completed his work a day earlier (so first to file/first to invent doesn't matter here).

    He receives the patent on "a method to communicate telepathically" and I do not. Even though he received the patent, I actually have a better working knowledge of what makes the system work. His doesn't work well and the market for telepathic devices is written off as fraud. I try to market my own product, but MLS sues and the court finds me infringing, even though mine works and his does not. The entire market for the device collapses and anyone coming up with a telepathic device is written off as coming up with yet another attempt at cold fusion.

    Information was disseminated. Progress was impeded.


    If MLS's technology actually does fail, then it is likely that his patent is not enabling, meaning that it does not teach the technology that the patent claims. That would make it invalid under 35 U.S.C. Sec. 112, thus clearing the way for you to practice your better invention.

    Information disseminated -- progress not impeded.

    Example 3: I have an idea for a new doohickey that will provide clean drinking water to the entire world. Unbeknownst to me, part of what I invent happens to include a tiny component that is identical to, say, a component of a dialysis medical device. Another component (again unbeknownst to me) violates the patent on a special kind of netting. A third component violates a patent on a special kind of chemical component that I thought I had cooked up myself in my lab.

    I am sued by the owners of all three patents (and a few more just for fun). I cannot produce my world saving product, nor can anyone else, since the cost of licensing all of those patents greatly outweighs the benefits from making the machines.

    Disclosure? Yes. Progress? No


    Do you know the phrase "ignorance of the law is not an excuse for breaking the law"? Well, ignorance of the prior art, especially when it is publicly available, is not an excuse for patent infringement. If you were such a great inventor, you'd know to actually get the information or technology you need from those who discovered it, rather than trying to reinvent it yourself. It would save you loads of time.

    By getting the patented technology from those who own these patents, either through negotiating a license agreement or by simply buying their components, you've cleared the way to make your life-saving device. And if that makes it expensive, so be it. If your hypothetical device is really as life-saving as you claim, someone will buy it.

    And if that's too much for you, patent your invention and then license it to one of the patent-holders who would sue you. Or you could set up a cross-licensing deal, where you license the other patentees to use your invention while they allow you to use theirs. There are more ways to skin this proverbial cat.

    I'll ask again how you denote progress if it's not economic progress (and I'll repeat what I said before: economic progress is not defined monetarily, but by increasing the wider opportunity to benefit). I still cannot see how there can be any sort of scientific progress that is not economic progress.

    Then pick up a history book. The growth of knowledge is not measured by opportunity; it's measured by its past.

    I'm not suggesting a system that promotes secrecy either. You law guys always seem to assume that no one would ever reveal anything without patents. You might want to come down into the business and tech trenches with the rest of us. That's not the way things work. Openness leads to more innovation, greater collaboration and larger opportunities. Openness always wins out in the long term. The market makes it so.

    So, sure some companies will try to keep their ideas secret. But others will surpass them with more open solutions and information will be disseminated because it will be *in the best interest* of the creators of that information to disseminate it. They'll realized that the wider that information is spread, the more benefit there will be to them. It all goes back to the business models we've described repeatedly. You add in that infinite good (information in this case) and you watch a market grow -- just so long as you've set yourself up in a position to capture the benefit of the related scarce goods.


    The only business and tech trenches that you are in involves software. Please. Go preach your idealism to the industries of medical devices, pharmaceuticals, mechanical devices, biotech, and other industries that don't involve strictly pixel pushing. Then see what they have to say. I have a hard time believing that they would be willing to disclose their commercial advantages over their competitors so easily if patent law did not exist.

    "Promoting scientific progress IS the core goal of disseminating scientific information."

    And when it fails to do so? What then?


    I have yet to see it fail to do so, and I have 200 years worth of history that tends to agrees.

    Again, that's a false assumption. Secrecy won't be the business model that succeeds.

    And you say I'm making assumptions...

    "However, the positive aspects of patent law outweigh the negative effects it can have"

    I have yet to see a single shred of evidence that supports this.


    Then I suggest you do a comparison of the knowledge growth in this country (as well as Germany, UK, Italy, and Japan) over the last 100 years compared to one that utilized capitalism but did not utilize patent law over the same time period.

     

    reply to this | link to this | view in thread ]

  91.  
    icon
    Mike (profile), Jul 16th, 2008 @ 11:44am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    An intelligent inventor would know that by making improvements to your technology, he likely will invent a product that does not infringe on your patent. By looking at where you went wrong and making improvements thereof, others create a new product that likely is not covered by every element of your broadest claim.

    Are you serious? That's not at all how things work in practice. When you get broadly granted patents then you prevent those improvements.

    My example wasn't hypothetical, by the way, I was using the history of the steam engine, which was hindered for many years thanks to Watts patents.

    If MLS's technology actually does fail, then it is likely that his patent is not enabling, meaning that it does not teach the technology that the patent claims. That would make it invalid under 35 U.S.C. Sec. 112, thus clearing the way for you to practice your better invention.

    Uh huh. And that's why NTP got $600 million from RIM, despite the fact that NTP's wireless email solution didn't work and RIM's did.

    You're living in a fantasy world.

    Do you know the phrase "ignorance of the law is not an excuse for breaking the law"? Well, ignorance of the prior art, especially when it is publicly available, is not an excuse for patent infringement. If you were such a great inventor, you'd know to actually get the information or technology you need from those who discovered it, rather than trying to reinvent it yourself. It would save you loads of time.

    Uh huh. And when people get sued for willful infringement for actually looking at other patents, that doesn't bother you?

    And it doesn't bother you that an inventor who comes up with something in a TOTALLY DIFFERENT FIELD might not think to look at patents elsewhere? And he doesn't consider it "reinventing the wheel." He just considers it inventing.

    And if you honestly think patents teach enough in such situations, you don't have much experience actually building things.

    By getting the patented technology from those who own these patents, either through negotiating a license agreement or by simply buying their components, you've cleared the way to make your life-saving device. And if that makes it expensive, so be it. If your hypothetical device is really as life-saving as you claim, someone will buy it.

    But why should I have to pay for something I invented myself?

    And if that's too much for you, patent your invention and then license it to one of the patent-holders who would sue you. Or you could set up a cross-licensing deal, where you license the other patentees to use your invention while they allow you to use theirs. There are more ways to skin this proverbial cat.

    Again, why should I have to work out a deal with someone entirely separate just to sell my own invention?

    That's hindering, not promoting, progress.

    Then pick up a history book. The growth of knowledge is not measured by opportunity; it's measured by its past.

    Meaningless statements don't prove your point. "History" doesn't mean anything. What happened in history does: and all I'm saying is that any "history" of progress shows you that it's because *ECONOMIC OPPORTUNITY* increased that progress moves forward.

    The only business and tech trenches that you are in involves software. Please. Go preach your idealism to the industries of medical devices, pharmaceuticals, mechanical devices, biotech, and other industries that don't involve strictly pixel pushing.

    Don't make bad assumptions as they continue to prove your ignorance. No, we do work in many different industries beyond software. In the last year alone, we've worked with pharmaceutical companies, biotech companies, medical device companies, technology hardware companies, consumer packaged goods companies, financial services companies, insurance companies, hospitality companies and many others.

    You keep making bad assumptions and they make you look foolish.

    I've been doing an awful lot of work lately in the healthcare field, with pharma/biotech/medical device companies, so I'm quite familiar how things work (or rather don't work) there.

    I have yet to see it fail to do so, and I have 200 years worth of history that tends to agrees.

    How does history agree with you? Practically *every* study of the patent system suggests otherwise, showing how the patent system has hindered innovation.

    And you say I'm making assumptions...

    You're the one preaching "history history history" and yet you don't know the most basic history of how open markets succeed over closed ones?

    Then I suggest you do a comparison of the knowledge growth in this country (as well as Germany, UK, Italy, and Japan) over the last 100 years compared to one that utilized capitalism but did not utilize patent law over the same time period.

    Sure, let's do that. But rather than setting up some arbitrary comparisons that don't mean anything, why don't we look at the *actual* economic research that compares apples vs. apples (i.e., similar countries at the same time and countries that switch from one system to the other both before and after). When we do that, we find that the patent system is NOT the cause of knowledge growth, but an EFFECT of it.

    That is, it's other factors (generally cultural, economic and natural resources) that lead to innovation -- and patent protections *FOLLOW* that initial burst of innovation. That is, rather than cause it, patents come in afterwards to protect that innovation against competitors.

    When patent rules are tightened there is NO evidence that increasing innovation occurs. Yet, when they're loosened, innovation does occur.

    There's some new research (not yet out, but coming soon) that demonstrates this in very compelling ways in the pharma industry in particular. It shows that when patents on pharma are *loosened* leading to more copying of drugs, drug companies started to get MORE INNOVATIVE in coming up with ways to distinguish and differentiate their products.

    So, sure, let's look at history. It certainly seems to suggest that you're wrong.

     

    reply to this | link to this | view in thread ]

  92.  
    identicon
    Albert, Jul 23rd, 2008 @ 12:15pm

    Re: Why not?

    Harmonix was the original creator of the Guitar Hero concept. They were the publishers of GH1 and GH2. They sold the rights to Konami when they decided to take a different route and create Rock Band. You can kind of see this as Konami backstabbing them to make money.

     

    reply to this | link to this | view in thread ]


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