Lawyer Points Out That Simultaneous Invention Can Get Patents Tossed

from the well,-it's-a-start dept

For years, we've pointed out how ridiculous it is that our patent system doesn't include an independent invention defense. It seems rather against the concept of promoting innovation to say that someone who invented something entirely independently should be barred from using his own invention just because someone else invented the same thing slightly earlier. Considering just how many major discoveries are discovered independently by multiple people, this seems especially troublesome. In fact, various research papers have been written about why an independent invention defense makes a lot of sense.

However, beyond just a "defense" on patent claims, we've often pointed out that independent invention actually should represent pretty good evidence that an invention doesn't meet the criteria for "non-obviousness" to those skilled in the art that is required for a patent. After all, if multiple folks skilled in the art are all coming up with the same invention, it seems to be rather definitive proof that the concept was an "obvious" next step to those skilled in the art. Of course, whenever we bring this up, patent system defenders talk about what a ridiculous idea this is and how it would be a disaster in practice. Unfortunately for them, the actual research suggests it would actually be quite reasonable.

However, with so many patent attorneys insisting that it's ridiculous that simultaneous or independent invention would be used to prove obviousness, it's interesting to see a patent attorney over at Patently-O point out that it's perfectly reasonable to use simultaneous invention as proof of obviousness, even though he admits it's "seldom used." Hopefully, that's going to start changing. If the purpose of the patent system is only to protect "new and non-obvious" inventions -- it would seem like de facto evidence of obviousness that others are doing the same damn thing. If you have to keep the patent system at all, such a test for obviousness (rather than just in court cases, as is suggested here) would be a tremendously useful step in the right direction.


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  1.  
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    wasnt me!, Aug 6th, 2008 @ 3:38am

    good and interesting point.

    which makes me wonder how often does something like that occur, and im also very curious to see a few examples of such "simultaneous independent inventions"

     

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    Anonymous Coward, Aug 6th, 2008 @ 4:18am

    Re: good and interesting point.

    the telephone.

     

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    John Duncan Yoyo, Aug 6th, 2008 @ 4:38am

    The only thing that would make this more obvious is two lawyers writing about it at once.

     

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    Zack, Aug 6th, 2008 @ 4:39am

    Re: good and interesting point.

    The wheel, although not simultaneously, was "invented" numerous times.

     

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    Tabs, Aug 6th, 2008 @ 4:58am

    @good and interesting point

    OK,

    Television, Telephone, calculus, Perperclip, Airplanes, integrated circuit etc.

    And that was from a "Im feeling lucky" google hunt.
    Search is your friend.

    If you go back and look into the last 300 years of inovation you will find that many of the "Brilliant" inventions of the times were just the culmination of many mens work and all it took was one person to put the parts together. anyone could have done the last bit. (given the right knowledge and inqisitivenous (is this a word?))

    As newton put it
    "If I have seen further it is by standing on the shoulders of giants"

     

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    Jason, Aug 6th, 2008 @ 5:15am

    Re: good and interesting point.

    Session Initiation Protocol (SIP) - The technology disputed in the Verizon v. Vonage case from 2006-2007.

    Verizon worked on it independently while the H.323 group worked on it. There was a third group, but I forget their title.

     

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    Willton, Aug 6th, 2008 @ 6:14am

    Dangerous suggestion

    To quote Anon E. Mouse at Patently-O:
    If this becomes good law, it will deter R&D shops and labs from competing against each other to solve big problems.

    Let's run the 100 meter dash with a multimillion dollar entry fee, but only give a first place prize to the winner if no one else crosses the finish line. Taking out your competitors (via violence or negotiation) is punishable by antitrust law.

    Now, who is going to enter this event?

    So much for promoting innovation.

    From Jim at Patently-O:
    So, when we have two PhD researchers who are both independently trying to solve a problem (e.g., find a cure for AIDS) and they both sumble upon the same solution now that an enabling technology exists (e.g., subject the blood to ultrasonics for a specific period of time - purely hypothetical, please don't flame that example!!!), neither of them deserve a patent for coming up with it? The mere fact that someone else thought of it around the same time as the first researcher inherently makes it obvious? That seems ridiculous. I agree with Anon E. Mouse - where's the incentive then? Suppose that research cost hundreds of millions of dollars - why start researching when someone else might come up with the same invention shortly after you, thus negating your ability to get a patent. I thought the whole idea of patent law was to incentivise innovation and disclosure, and, with all due respect to Mr. Yamashita, his proposal would work opposite to that concept.

    My opinion: independent invention should only be a factor in the obviousness analysis (as the KSR Court intended), not a test in and of itself. Otherwise you have the unintended consequences like those illustrated above.

     

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    eleete, Aug 6th, 2008 @ 6:37am

    Way to wittle it down.

    "So, when we have two PhD researchers who are both independently trying to solve a problem (e.g., find a cure for AIDS)"

    That's an extreme for sure, what field has only two researchers ? Certainly not AIDS research.

     

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    Anonymous Coward, Aug 6th, 2008 @ 6:50am

    Re: Dangerous suggestion

    there are two problems with the way it currently works. if you have this current system where first one in gets everything, even if the inventions were minutes apart, then you have the same risk of getting nothing for your work and you won't be able to use or market it unless you pay a fee to your competitor.

    at least this way the proposed change gives companies a chance to market their goods. neither gets a patent, but neither gets hammered either.

     

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    Thomason, Aug 6th, 2008 @ 7:39am

    Simulaneous "moment of invention"

    The patent act does deal with contemporaneous invention, but it does not have a "defense of simultaneous" invention. The statutory procedure decides who first invented, even if it's only hours earlier. If your lab notebook says "2:33 am EUREKA!", and the other inventor's notes don't report any eurekas until 4 in the same morning, then the earlier invention gets the patent. Why is that unfair? The first person to sign a contract gets the house, the first qualified candidate gets the job opening, the first one across the line gets the gold medal, und so weiter.

     

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    Michial, Aug 6th, 2008 @ 7:44am

    Since when does invention have anything to do with Patents

    Just curious, since when did you actually have to invent something to get a patent on it?

    There are lots of patents issued that have never in the past and will never likely work in the future either.

    Last I had read there was more than 20 patents issues on Perpetual Motion Devices, and the likely hood of something like that ever working is slip to none, yet the patents are still valid.

     

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    eleete, Aug 6th, 2008 @ 7:46am

    Re: Simulaneous "moment of invention"

    "then the earlier invention gets the patent. Why is that unfair?"
    Some might argue that years of hard work separated by a few moments at the 'finish line' might warrant more than one reward. What if there are hundreds in the arena ? Should there only be a 1st place ? Should there only be a monopoly ?

     

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    Anonymous Coward, Aug 6th, 2008 @ 7:57am

    Re: Simulaneous "moment of invention"

    so lets say you and i are competing to invent a new device. now we've been going at it for a while now, and we have competitors who are trying to do the same thing. suddenly in the middle of te night we each have a breakthrough, we solved the only remaining problem. your notebook shows 3:00AM, mine shows 2:45 AM.

    now because I won, your hardwork and that other the other companies is wasted because if you want to market the device you either have to wait till the patent expires or pay me a fee. because I was moments earlier I can sit and do nothing while charging each and everyone of my competitors a fee to market the device we all were working on, but because I was just a tiny bit quicker I get full rights over who is allowed to sell my invention.

    you have to think, if many people from the industry were working on a project then they should all benefit from their invention. if everyone in the mug industry thinks we need some kind of self-closing lid for coffee mugs so spills are a thing of the past, why should only the first person in the patent office get to use that idea?

     

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    eleete, Aug 6th, 2008 @ 8:22am

    Re: Re: Simulaneous "moment of invention"

    I agree. Many inventions are not produced with an eye on the monopoly. Often it is the pursuit of the solution alone that drives inventors. In the case of an AIDS solution, what is the goal ? Is it to capture the monopoly on the market ? Is it to provide a cure for inflicted people ? Many people are seeking the same result, the cure. Many are likely to come to the same conclusions all along the way. If good people donate to the cure, who should get a monopoly on the solution/result ? Let's not forget, often we are not talking of the people actually inventing, but the corporation they work for.

     

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    Anonymous Coward, Aug 6th, 2008 @ 8:47am

    Re: Re: Re: Simulaneous "moment of invention"

    why does there even need to be a monopoly? if many people/corporations come up with the same solution, they should all profit. look at the thumbstick patent issues the gaming industry has had. it is a pretty obvious idea to take an arcade stick and shrink it down, we had half size or smaller devices for the nes like that, making it even smaller and putting it in a standard controller would be the next logical step. but because one company (who, IIRC, doesn't even make game controllers) has a monopoly on the idea, everyone suffers.

     

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    Willton, Aug 6th, 2008 @ 8:48am

    Re: Re: Simulaneous "moment of invention"

    so lets say you and i are competing to invent a new device. now we've been going at it for a while now, and we have competitors who are trying to do the same thing. suddenly in the middle of te night we each have a breakthrough, we solved the only remaining problem. your notebook shows 3:00AM, mine shows 2:45 AM.

    now because I won, your hardwork and that other the other companies is wasted because if you want to market the device you either have to wait till the patent expires or pay me a fee. because I was moments earlier I can sit and do nothing while charging each and everyone of my competitors a fee to market the device we all were working on, but because I was just a tiny bit quicker I get full rights over who is allowed to sell my invention.


    That's life, man. If you are first to an unclaimed piece of land, then you get to claim title to that land over all second comers. If you are first to use a certain trademark in trade, then you get rights to that trademark over all second users. If you are first to invent, then you get rights to the patent over all second inventors. That's competition.

    If the rule was that you could only get a patent if nobody else invents at around the same time as you, then what's the incentive to compete against others for a patent?

     

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    Willton, Aug 6th, 2008 @ 8:53am

    Re: Re: Simulaneous "moment of invention"

    Some might argue that years of hard work separated by a few moments at the 'finish line' might warrant more than one reward. What if there are hundreds in the arena ? Should there only be a 1st place ? Should there only be a monopoly ?

    Well, if you're going to give out a prize for inventing something and disclosing it as soon as possible, then yes, there should only be one, and it should go to that person who invents and discloses it as soon as possible. Otherwise you dilute the value of that prize.

     

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    Anonymous Coward, Aug 6th, 2008 @ 8:56am

    Re: Dangerous suggestion

    At what point did patents become required to make money? Those examples are terrible. The first one suggests its impossible to make money on something that is not patented. That is ridiculous. The second example is just highly unlikely. Most research of that nature isn't kept so secret that two people who obviously are abreast in the field would know someone is working on a similar technique and would either A) work together or B) race each other or C) work on making their system better than the other's system. In each case, the outcome is beneficial.

     

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    Anonymous Coward, Aug 6th, 2008 @ 9:00am

    Re: Re: Re: Simulaneous "moment of invention"

    I think the incentive is "Lets be the first on the market." or "Lets make ours better then theirs." I believe its called competition. Its what capitalism is based off of. Remember, patents are inherently non-capitalistic so they kind of go against the very foundation of most economies.

     

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    eleete, Aug 6th, 2008 @ 9:04am

    Re: Re: Re: Simulaneous "moment of invention"

    And that helps innovation how ?

     

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    DCX2, Aug 6th, 2008 @ 9:07am

    Simultaneously inventing motion sensitive gaming

    Back in the Fall of 2004, I needed to come up with a Senior Project for my degree in Computer Engineering. One of the groups in the previous year had worked with accelerometers. I wanted to hack my PlayStation 2 controller and add rapid fire and macro playback and I had a brilliant idea...why not tape an accelerometer onto the back of the controller and tilt it to steer a car, too?

    So I mapped the controller's orientation relative to gravity onto the left analog stick's X axis. It seemed like quite an obvious thing to do. People lean this way and that when they play video games.

    It should be noted that when I had conceived of my "invention" (Fall 2004) and had even fully implemented it (Spring 2005), Nintendo had not told anyone that the Revolution would use a motion sensitive controller (Sept 2005). Clearly, though, Nintendo had been secretly developing the Wiimote long before I had the expertise necessary to build my own circuit.

    This is, I think, a clear case of simultaneous invention, by a gaming company and an engineering undergrad. Ironically, some of my class mates emailed me when news of the Revolution's motion-sensitive controller got out. "Dude, Nintendo stole your idea!"

     

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  22.  
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    DaveP in Ohio, Aug 6th, 2008 @ 9:38am

    Day late, $$$ shortchanged!

    Been there, done that... when CDs came out in the '80s my brother-in-law (to be) and I had a discussion in that in the near future multilayer optical cubes and chips would be used to hold data such as music and movies... fast forward a few years, and everyone has an MP3 player, DVD or BluRay... if only we had patented the ideas I would be home right now living comfortably with any toy I desired instead of sitting at work answering the phone.

    Several other occurances in the my personal past.

    My son came up with "Drum Hero" before "Rock Band" was announced...

    However, I won't give out the details on my latest project, as I refuse to get be hung out to dry again... any development with outside entities will get a part of the project and absolutely NO information about the project as a whole...

    I want to retire and enjoy life while I can!

     

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    Mike (profile), Aug 6th, 2008 @ 9:49am

    Re: Dangerous suggestion

    Willton, those are incredibly weak responses.

    Let's run the 100 meter dash with a multimillion dollar entry fee, but only give a first place prize to the winner if no one else crosses the finish line. Taking out your competitors (via violence or negotiation) is punishable by antitrust law.

    Oh, so you mean it's better where you have everyone run the 100 meter dash, and only the first person who gets across the finish line gets any reward. Everyone else gets screwed.

    And, more specifically, innovation is NOT a 100 yard dash. It's a marathon, but the patent only covers perhaps those first 100 yards.

    So the patent system is basically saying whoever wins the 100 meter dash gets to run the rest of the marathon alone.

    THAT is a HUGE hindrance to innovation.

    So, when we have two PhD researchers who are both independently trying to solve a problem (e.g., find a cure for AIDS) and they both sumble upon the same solution now that an enabling technology exists (e.g., subject the blood to ultrasonics for a specific period of time - purely hypothetical, please don't flame that example!!!), neither of them deserve a patent for coming up with it?

    Yes, that's correct. And that's because there are plenty of other ways to reward them that don't require patents.

    The alternative is one of those researchers has totally wasted his time.

    I agree with Anon E. Mouse - where's the incentive then?

    This is based on the obviously false assertion that patents are the only incentive. That's almost never the case. For something like an AIDS cure, if you don't think the original finders of the cure will have plenty of opportunity to profit from that result, you don't live in the same world the rest of us do.

     

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    Mike (profile), Aug 6th, 2008 @ 9:52am

    Re: Simulaneous "moment of invention"

    The patent act does deal with contemporaneous invention, but it does not have a "defense of simultaneous" invention. The statutory procedure decides who first invented, even if it's only hours earlier. If your lab notebook says "2:33 am EUREKA!", and the other inventor's notes don't report any eurekas until 4 in the same morning, then the earlier invention gets the patent. Why is that unfair? The first person to sign a contract gets the house, the first qualified candidate gets the job opening, the first one across the line gets the gold medal, und so weiter.

    Because "invention" is just the first part in a long process of innovation. And if you lock the doors to everyone else but the first person who made it through an artificial barrier, you SLOW down and significantly HARM the pace of innovation.

    The first person who gets a house gets it because it's a SCARCE resource. It can't be shared.

    That's not the case with ideas or inventions.

     

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    Mike (profile), Aug 6th, 2008 @ 9:54am

    Re: Re: Re: Simulaneous "moment of invention"

    If the rule was that you could only get a patent if nobody else invents at around the same time as you, then what's the incentive to compete against others for a patent?

    How many times does this need to be repeated before you realize how wrong this statement is, Willton? The patent IS NOT THE ONLY INCENTIVE.

    I recognize that it's a problem of patent lawyers (or law students, apparently) to be unable to recognize how little patents act as an actual incentive compared to the market for the product, but every time you repeat that fallacy you get less and less believable.

     

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    Killer_Tofu (profile), Aug 6th, 2008 @ 9:54am

    Re Willton

    Willton, you seem to be missing a larger point.
    As one of the other posters mentioned, patents are not required to make money.
    When researchers are working, they are generally working for a product. They are not working for a patent. Also, something does not need to be invented to be patented.


    Also, look at the Olympics. In each event there is a Gold, Silver, and Bronze medal. By your arguments, the Silver and Bronze should not be given out because it somehow makes the Gold less valuable? Seems flawed to me. Simply being first place can make a large difference. Also, your analogy about being first to a piece of land is flawed. The goal there was to be the first to the piece of land. The goal was not to get a patent. Using the AIDS researchers again, their goal has absolutely nothing to do with patents. I do dare say that when an AIDS cure is invented, it should not be allowed to be patented at all. That would be disasturous to the world compared to its full potential.

     

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    Willton, Aug 6th, 2008 @ 10:19am

    Re: Re: Dangerous suggestion

    Oh, so you mean it's better where you have everyone run the 100 meter dash, and only the first person who gets across the finish line gets any reward. Everyone else gets screwed.

    If you're going to offer a reward at all, then yes, that has to be the way it works. Otherwise you dilute the value of putting in the effort.

    And, more specifically, innovation is NOT a 100 yard dash. It's a marathon, but the patent only covers perhaps those first 100 yards.

    So the patent system is basically saying whoever wins the 100 meter dash gets to run the rest of the marathon alone.


    Terrible analogy. In a marathon, a runner can only advance based upon the progress he or she has made; the runner can't advance based upon what other runners have done. Innovation builds upon the successes of everyone, including your competitors. So it's not a marathon; if anything, it's multiple separate and distinct 100 yard dashes.

    Yes, that's correct. And that's because there are plenty of other ways to reward them that don't require patents.

    The alternative is one of those researchers has totally wasted his time.


    Then your argument is for the abolishment of the patent system, not for a "simultaneous independent invention" defense. That loses sight of the discussion.

    This is based on the obviously false assertion that patents are the only incentive. That's almost never the case. For something like an AIDS cure, if you don't think the original finders of the cure will have plenty of opportunity to profit from that result, you don't live in the same world the rest of us do.

    You missed the point: Jim was questioning the incentive to get a patent if this were the rule. He's saying that it devalues the patent system, as one could only get a patent if he has no competitors. We know that the patent system is not the only incentive to innovate. But it is a strong incentive to innovate, and that's the point of having it.

    Turning this discussion into one on getting rid of the patent system totally misses the point of the article you referenced above.

     

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    Willton, Aug 6th, 2008 @ 10:29am

    Re: Re: Re: Re: Simulaneous "moment of invention"

    How many times does this need to be repeated before you realize how wrong this statement is, Willton? The patent IS NOT THE ONLY INCENTIVE.

    I recognize that it's a problem of patent lawyers (or law students, apparently) to be unable to recognize how little patents act as an actual incentive compared to the market for the product, but every time you repeat that fallacy you get less and less believable.


    Incentive to what? Mike, did you even read what I wrote? I'm not asking about the incentive to innovate. I'm asking about the incentive to get a patent. Stop stuffing straw and answer the question.

     

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    eleete, Aug 6th, 2008 @ 10:32am

    The point Willton cannot grasp.

     

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    Anonymous Coward, Aug 6th, 2008 @ 10:34am

    Re: The point Willton cannot grasp.

    Oops, Paste Failure above

    "That would be disastrous to the world compared to its full potential." Indeed full potential is what would 'help' innovation most. Willton is clearly focused on money as the only incentive possible.

     

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    MLS, Aug 6th, 2008 @ 10:39am

    Having just submitted a comment, I noted that the notification page acknowledging its submission appears to have been changed. I seem to recall that heretofore it stated that the submission would appear shortly, whereas now it states it will be reviewed before appearing as a post.

    If the policy has changed, it is not necessarily a "bad" thing and can have a salutory effect on some of the flaming that has crept into some comments on other of your articles.

     

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    Willton, Aug 6th, 2008 @ 10:41am

    Re: Re: The point Willton cannot grasp.

    Willton is clearly focused on money as the only incentive possible.

    Money is not the only incentive, but it is the strongest incentive. Most scientists and inventors don't do what they do for free.

     

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    eleete, Aug 6th, 2008 @ 10:47am

    Re: Re: Re: The point Willton cannot grasp.

    "Money is not the only incentive, but it is the strongest incentive."
    That is an opinion, not a fact at all.

     

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    Mike (profile), Aug 6th, 2008 @ 10:49am

    Re:

    Having just submitted a comment, I noted that the notification page acknowledging its submission appears to have been changed. I seem to recall that heretofore it stated that the submission would appear shortly, whereas now it states it will be reviewed before appearing as a post.

    The policy has not changed. The system will hold a comment if it suspects it is spam, based on a variety of factors.

    I just looked, and your comment showed up entirely blank. I don't know why, but blank comments are often a sign of a spammer trying to break through the system.

    If you rewrite the comment, it should show up just fine.

     

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    Mike (profile), Aug 6th, 2008 @ 10:58am

    Re: Re: Re: Dangerous suggestion

    If you're going to offer a reward at all, then yes, that has to be the way it works. Otherwise you dilute the value of putting in the effort.

    Huh? As opposed to the current system where you don't just dilute the value of everyone else putting in effort, but TOTALLY DECIMATE their effort and make it VALUELESS.

    That's the system you like? That scares me.

    Terrible analogy. In a marathon, a runner can only advance based upon the progress he or she has made; the runner can't advance based upon what other runners have done. Innovation builds upon the successes of everyone, including your competitors. So it's not a marathon; if anything, it's multiple separate and distinct 100 yard dashes.

    I didn't start with the running analogy, you did.

    And, if you're going to complain about it, the running analogy as a whole is bogus. It's not a bunch of individual races. It's a bunch of ideas being shared and exchanged between people, with people trying to claim ownership of those ideas.

    Then your argument is for the abolishment of the patent system, not for a "simultaneous independent invention" defense. That loses sight of the discussion.

    Can you not understand the concept that even if you think the patent system should be abolished, that a reasonable starting point is to reform it to at least make it less harmful? And, of course, I don't necessarily think the patent system should be abolished. As I've said repeatedly, if someone can actually show a system that does promote innovation, I'd be for it.

    Honestly, I think that if a true independent invention defense comes about and is regularly used as evidence of obviousness, it will quickly become clear to people that the patent system, as it currently stands, simply is not necessary.

    You missed the point: Jim was questioning the incentive to get a patent if this were the rule.

    Isn't that rather tautological? Isn't it a GOOD thing to push the incentives away from getting a patent towards actually doing something in the market? A gov't monopoly should be a *rare* circumstance -- only used in cases where there's a proven market failure. As Jefferson and Madison made clear, patents should be an exception, not the rule.

    If the incentive to get a patent were lessened, that's a good thing. You should support that, because it means that other incentives are doing their job.

    But it is a strong incentive to innovate

    If only that were true.

     

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    MLS, Aug 6th, 2008 @ 11:10am

    Re: Re:

    Thank you for the info. Unfortunately I did not make a copy since posting to your site is so reliable, and the comment was somewhat lengthy...merely informative and in no way a flame, criticism, put down, mock indignation, etc.

     

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    Alan, Aug 6th, 2008 @ 11:25am

    I agree that invention shouldn't be a "winner take all" proposition like the current patent system. Yes, an inventor shouldn't be punished if they happen to be working on the same project as someone else and come in a day behind. But Mike, I'm getting tired of your "obviousness" rant on patents. Just because the same invention is made nearly simultaneously does NOT make it obvious. Yes, the general concept of the invention (like the telephone) might be obvious, but the actual execution of the concept in technical details necessary to get a patent is far, far from obvious (which is why major inventions are made by experts in the field, and not Joe Bob next door). I'm tired of how every patent you discuss here seems obvious to you, Mike. Of course it's obvious - in hindsight. You're deliberately committing the egg of Columbus fallacy in order to prove a point. Simultaneous invention has nothing to do with the non-obviousness test of a patent. I say again that the general quality of your arguments has been going down for some time now. You are degenerating from reasoning to ranting.

     

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  38.  
    identicon
    mobiGeek, Aug 6th, 2008 @ 12:03pm

    Re: Re: Re: Simulaneous "moment of invention"

    By only giving out one, you dilute the incentive to invent. Why should I bother even trying when anyone else around me might get to the end point just as I do.

    And assuming they get to the end point, they get to continue building on that while I have to cower down to their "licensing terms".

    So much for "progress" in that field beyond the first breakthrough.

     

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  39.  
    identicon
    mobiGeek, Aug 6th, 2008 @ 12:10pm

    Re: Since when does invention have anything to do with Patents

    A patent existing does not prove that it is valid. It is valid if and when it survives a challenge. History has shown many an existent patent that have become invalid (see RIM vs NTP for a couple of examples).

     

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  40.  
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    mobiGeek, Aug 6th, 2008 @ 12:16pm

    Re: Day late, $$$ shortchanged!

    However, I won't give out the details on my latest project

    Ah...IP law at the heart of progress. I bet there is no way that you'd end up with a BETTER system SOONER if you shared your ideas with folks on the 'net to get feedback on your ideas.

    Instead you wait a couple of years, working in hidden isolation, release your idea with a whack of IP lawyers around it and your "good enough" implementation of your idea gets exclusive rights to the market. Any possible improvements have to be approved by you before anyone (your customers or others) can get them if at all.

    What a fantastic, world-evolving system we have here.

     

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  41.  
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    mobiGeek, Aug 6th, 2008 @ 12:20pm

    Re: Re: Re: The point Willton cannot grasp.

    I disagree with your opinion. Most scientists' EMPLOYERS (and VCs) pay their scientists in the expectations of a big payoff. Most scientists/artists do what they do because it is what they are good at and/or are passionate about.

    Most scientists/artists do what they do to eek out a living, not buy small Caribbean islands.

     

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  42.  
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    The People, Aug 6th, 2008 @ 1:11pm

    Innovation

    What about us? How are we the consumers and end-users served by the patent system telling us who can sell us a product based on a "new idea"(if there is such a thing), rather than letting us choose who is best able to deliver a product. How are we benefitted by an artificial monopoly on the production of useful things? The urge to create and improve is so basic to our being that it does not need to be incentivized. Witness, if you will, the GPL. Some get paid, certainly, but not many, and no one gets royalties. An inventor motivated by wealth, will not serve us as efficiently, nor envision things that are as useful, as one who wants simply to solve a problem. If one wants to have a lot of money, one will work primarily on solving the problem of not having enough money; everything else is secondary.

     

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  43.  
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    Mike (profile), Aug 6th, 2008 @ 1:33pm

    Re:

    Just because the same invention is made nearly simultaneously does NOT make it obvious. Yes, the general concept of the invention (like the telephone) might be obvious, but the actual execution of the concept in technical details necessary to get a patent is far, far from obvious (which is why major inventions are made by experts in the field, and not Joe Bob next door).

    I should be clear here: the independent invention invention would only apply to the same actual implementation. Not necessarily just the idea.

    Of course it's obvious - in hindsight.

    This is a crutch that patent software providers claim repeatedly, but the research suggests not. It's usually quite easy to look back at the process of innovation and recognize whether something is the natural progression vs. a flash of brilliance.

    Simultaneous invention has nothing to do with the non-obviousness test of a patent.

    Why? You can repeat that statement, but it doesn't make it true. If multiple people in the field are inventing the same thing, using the same method, then I don't see how you can claim that it's not obvious to those skilled in the art. They're PROVING that it's the natural progression because multiple people are moving in the same direction.

     

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  44.  
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    Bobby Ganoosh, Aug 6th, 2008 @ 2:50pm

    Re: Re: Re: Re: Re: Simulaneous "moment of invention"

    If the incentive is to get a patent, then that simply proves what's wrong with the patent system. The incentive should be to innovate and compete, not to get patents.

    In most of these posts, it's very difficult to determine if you're stupid or just intentionally obtuse. Everyone read what you wrote, and you can't seem to decide what you're arguing for or against.

    On one hand you argue that the patents aren't the incentive, later followed by "What's the incentive to get a patent?" So, is the patent the incentive, or is the patent not the incentive? If the patent is the incentive, then as I previously stated, that's what's wrong with the patent system. If the patent isn't the incentive, then you're arguing simply to argue.

     

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  45.  
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    Reason, Aug 6th, 2008 @ 3:05pm

    Re: Innovation

    The people benefit from patents by paying higher prices for products. Do you think RIM just absorbed the $600 million they paid NTP? Nope, added it to the cost of the product, and everyone with a Blackberry pays. How about the dustup between Nokia and Qualcomm? Let's see, Nokia pays Qualcomm some up-front money, plus ongoing royalties. Do you think Nokia will just let that money erode the bottom line? Not a chance. That extra cost will be passed on to the consumer, you and me. In this case, though, I can sort of vote with my wallet, by never buying a Nokia product that contains Qualcomm technology, and by never buying anything from Qualcomm (not that I ever have). The benefits of the patent system, you see, are solely intended for the individual or entity granted the patent.

    But thankfully for people like Willton, lawyers get to rake in cash on this deal too, since they're part-and-parcel of this abomination. And of course lawyers support the patent system, in part because some of them are patent attorneys, but also in large part because lawyers make money regardless of which side of a patent infringement lawsuit they represent.

    So see, the patent system is intended to be good for patent holders, but it's also good for lawyers (and they'd like to keep it that way), but not so good for the rest of us.

     

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  46.  
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    Alan, Aug 6th, 2008 @ 6:02pm

    Re: Re:

    Why? You can repeat that statement, but it doesn't make it true.

    And you can repeat your statements, and it doesn't make them true either. That's what I mean when I comment on the quality of your articles. You're degenerating into the same kind of shibboleths that you accuse the opposition of.

    Case in point - I called you on the issue of concept and implementation, and now you change your tune, saying it's implementation you're talking about. But that's not what you wrote:

    it seems to be rather definitive proof that the concept was an "obvious" next step to those skilled in the art

    And are you really going to try to say that implementation is obvious? That's rather an insult to everyone who works in R&D. I'm sure they don't appreciate you dismissing what they do as being obvious. Given the chance, they'd tell you about the immense amount of time and money it takes to make an invention work.

    Yes, concepts are often obvious. Many people tend to realize about the same time that technology is ripe for some new kind of invention, whether airplanes, telephones, or computers. So that naturally sets off multiple researchers working on the same project at once. And of course they're going to come out with similar implementations, because usually there is initially only one economically viable implementation of a concept.

    I think you miss my point Mike that I agree with you - invention shouldn't be a winner-take-all competition. I just disagree with the premise of your argument. It's the kind of thing that makes me consider no longer reading Techdirt - instead of thought provoking articles, we get party-line soundbytes supported by shaky reasoning.

     

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  47.  
    identicon
    DaveP in Ohio, Aug 6th, 2008 @ 7:30pm

    Re: Re: Day late, $$$ shortchanged!

    Maybe I came off sounding like that but actually I want quite the opposite... and I have shared my ideas with a very select few on the net that I know are experts in their fields and have worked on similar designs and are working on similar items for the common good.

    I intend to non-exclusively license, not sell, my developments to multiple channels to ensure that the technology gets developed past proof of concept and initial designs and reaches the marketplace and the masses. It is an item that I could envision being bought off the market by a large company to be wrapped in a box and sealed away on a corner shelf and turned into an urban legend, without intention of ever being produced.

    I'm not looking to be the next (insert your favorite bazillionare here)... I would like to live comfortably, pay off my house without working until I'm 70, allow my wife and son to live comfortably should the day come that I'm gone from this world before them and hopefully make an impact, no matter how small, to at least a decent amount of people.

    On the other hand, I have an appliance idea as well that would be a major selling feature for the company that would be interested in an exclusive license, but the best offer in the market that I saw was a one time $400 purchase for ideas by one of the major manufacturers. I feel that it would be a big enough selling point to sell hundreds, or more likely thousands of appliances for that company over it's competitors, but I just can't see parting with the idea for mere pennies per unit.

    I guess it comes down to there are two types of developments, necessities and nice-cessities... each have a different way to market. The world doesn't NEED my appliance idea, but the other ideas are more life-changing.

    =======================
    As replied by mobiGeek:

    Instead you wait a couple of years, working in hidden isolation, release your idea with a whack of IP lawyers around it and your "good enough" implementation of your idea gets exclusive rights to the market. Any possible improvements have to be approved by you before anyone (your customers or others) can get them if at all.

     

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  48.  
    icon
    Mike (profile), Aug 6th, 2008 @ 10:07pm

    Re: Re: Re:

    And you can repeat your statements, and it doesn't make them true either.

    It does if they are true and they are backed up with evidence.

    That's what I mean when I comment on the quality of your articles. You're degenerating into the same kind of shibboleths that you accuse the opposition of.


    Again, I back it up with evidence. You are free to provide alternative evidence if you have any.

    Case in point - I called you on the issue of concept and implementation, and now you change your tune, saying it's implementation you're talking about. But that's not what you wrote:

    I will concede that the choice of wording may be sloppy, but it is hardly as nefarious as you imply. The *concept* I am talking about is the concept of the implementation. After all, you can't patent a concept, only an implementation.

    And are you really going to try to say that implementation is obvious?

    If multiple folks skilled in the art are doing it that way, then yes.

    That's rather an insult to everyone who works in R&D.

    Not at ALL. In fact, it's the opposite. It's showing respect for the work done by those skilled in the art, by showing that they are the ones pushing the next steps forward. That's what I'm *celebrating*. But I'm saying that to properly celebrate it you shouldn't lock it up for only one person to own.

    Given the chance, they'd tell you about the immense amount of time and money it takes to make an invention work.

    Have I EVER suggested otherwise?

    I absolutely agree that it takes a tremendous amount of work, effort and perseverance to build a successful product for market.

    So why do we punish so many folks who do that by only letting one person control it?


    I think you miss my point Mike that I agree with you - invention shouldn't be a winner-take-all competition. I just disagree with the premise of your argument. It's the kind of thing that makes me consider no longer reading Techdirt - instead of thought provoking articles, we get party-line soundbytes supported by shaky reasoning.


    Again, I am more than willing to discuss what you find as shaky reasoning, but I don't find that statement supported anywhere. The only thing I find is that you disagree with my position that multiple inventions are prima facie evidence of obviousness.

     

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  49.  
    identicon
    mobiGeek, Aug 7th, 2008 @ 9:45am

    Re: Re: Re: Day late, $$$ shortchanged!

    I understand your desire for payoff, but that doesn't detract from the reality that you are holding onto your ideas because of a desire for exclusivity.

    If a bus was to hit you today, the world is without your idea.

    The issue here is the gap between idea and innovation. You seem to have an idea that you would like to be "paid" for, but it is actually the innovator who will be rewarded for that idea (that is, the one who successfully brings it to market).

    "Licensing an idea" is what I have difficulties with. That is not about general progress, the type of progress we've seen for hundreds of years within society. It is about "gatekeeping progress"...choosing who gets to progress and what progress you will allow.

    In fact, that kind of exclusivity (you are being exclusive as to who gets to share in your idea) stifles your the true potential of your idea. You might not want a company to buy your idea and stuff it in a warehouse to die...but by not distributing you idea (something you can't do if you depend on a business model of "licensing" it) you are effectively doing the same thing.

     

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


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