Is It So Crazy For A Patent Attorney To Think Patents Harm Innovation?

from the not-at-all dept

I know a fair number of patent lawyers and copyright lawyers who are quite skeptical of what's become of patent and copyright law -- and who readily admit that the law has gone way beyond what is reasonable or what the law was designed to do (i.e., "promote the progress..."). And yet there are some in the patent or copyright legal business who somehow seem to think that it's traitorous for a patent or copyright lawyer to ever dare question the idea that patents and copyrights work. I had a patent lawyer argue with me the other day that of course patents encourage innovation, because the Constitution says they do. This sort of logical blunder blows my mind. How can otherwise intelligent people assign such backwards logic to things? Do these same people also believe that when Congress passes any law, it automatically achieves its goals?

I have a good friend, who has recently made it through law school. Since he spent over a decade as a computer scientist, the law firm he went to work for made sure he did a rotation in the patent group (but of course). He was telling him how sick the experience made him feel. He said the stuff he was working on was disgusting. Helping companies patent blatantly obvious ideas, and using those patents to sue other companies who were innovating. Even worse, he said that many of the partners in the group seemed gleeful at how they were abusing the system, solely because of the amount of money such projects bring in. None of them bothered to consider that the overall impact of what they were doing wasn't "promoting the progress" but was harmful to society as a whole.

So, I can understand how lawyers can be on both sides of the equation (though, it says something to me about how they view the world). And, yet, there are still some IP attorneys who seem to think that it's somehow ridiculous that a patent attorney could ever find patents a net negative on society (leaving aside the many, many recent studies done by lawyers who have shown exactly that). Stephen Kinsella, a patent attorney who is against patents has responded to one such claim by a patent attorney, explaining why of course a patent attorney can disagree with the patent system, and still do his job. He notes plenty of patent attorneys who have become skeptical of the patent system.

But what's really stunning are the claims of the patent lawyer, Gene Quinn, who prompted Kinsella's claim. He was actually writing in response to a Techdirt post, where he makes numerous odd claims that don't make much sense. He assumes that it's factual that patents must promote innovation based on "the basic laws of economics." This makes me wonder which laws of economics Quinn is talking about, seeing as the laws of economics I know say that monopolies almost always lead to suboptimal societal benefit. He claims that "all the evidence" say that patents increase innovation. Except that's not true at all. We can start listing off all the studies that have shown the contrary, but I've yet to see one that actually supports Quinn's position. In response to that, Quinn amazingly claims that the studies that prove him wrong don't matter:
Would you please stop reading studies and look at history! Studies are done by academics with an agenda, are based on thought experiments, do not take into consideration important factors and are preconceived in order to come out with a particular answer.
That's a neat trick to dismiss the actual evidence (after insisting all the evidence was on his side), but it's flat-out, almost 100% wrong. And provably so. Because most of the studies I was talking about aren't "based on thought experiments" but are "looking at history." And, among those "biased academics" are at least two Nobel prize winning economists (Maskin and Stiglitz) and someone who was a very successful entrepreneur before moving to academia (Bessen). Besides, most of the academic studies that Quinn dismisses as irrelevant was peer reviewed. There are problems with peer review, of course, but to claim that these are far out ideas, while insisting that "the basic laws of economics" supports patents is simply not supported.

There are plenty of reasons why people might believe patents increase innovation -- but they're the same theories of the mercantilists in the 18th century, who believed that monopolies on other products spurred more development in those businesses. That theory was debunked and is considered laughable by pretty much any economist today. And yet, when it comes to patents, why do people automatically reject what economists realized two hundred years ago? Monopolies may temporarily benefit the monopolist, but at the expense of society as a whole. And, if Quinn wants to look at history, let's take a look at people who did actually look at the history, from Eric Schiff (showing rapid innovation and industrialization of the Netherlands and Switzerland without the use of patents) to Petra Moser (showing no less innovation in comparable countries with no patent laws to those with patent laws) to Lerner's work (comparing various countries before and after they changed patent systems, showing that stronger patent laws do not lead to greater innovation) to Qian's research (patent system changes across countries in the pharma industry, showing stronger patent laws did not lead to greater innovation, and, in fact, that weakening IP enforcement often led companies to become more innovative to stand out from the competition) and onward (there are a lot more where that came from). Hell, even the World Intellectual Property Organization (which usually is pretty damn supportive of IP) has noted that there's been no real evidence that IP protection leads to any economic payoff.

Quinn says to ignore the studies and look at the history, but the history says exactly what he claims it doesn't.

Those who insist that patents must lead to innovation fallback on a few, rather basic, logical fallacies. They point out that countries with strong patent laws tend to see much greater innovation. This is what Quinn means by "look at the history." But they are mixing up correlation with causation -- not recognizing that the stronger patent laws almost always post-date a period of much greater innovation, and then the patent system gets strengthened, not to promote more innovation, but to limit competition from those who innovated in the past (and, in fact, research by Park and Gigante found evidence of this very thing in looking at "history"). Or, they claim that since we still see some innovation, then clearly patents don't hold innovation back. But compared to what? The argument we're making has never been that patents stop all innovation cold. Of course innovation still occurs. But the question is at what rate? As we've seen in countries without patents or with much weaker patent systems, you tend to have much greater competition among smaller, more nimble firms. Since competition is a great driver of innovation, it's no surprise that there would still be great innovation in such societies. Separately, the fact that there may be fewer major innovations coming from societies with weaker patent laws today is again, not evidence that patents work. There are numerous factors that influence innovation -- and picking a country with poor infrastructure or widespread poverty, isn't exactly an apples to apples match with someplace like the US.

But just thinking logically, you can realize why the argument that, without patents, there would be no innovation, is provably false. When it's easy to copy someone copying losing all value by itself. Just being a copycat is pretty useless, because anyone else can do it. So, the real value is not in copying, but in leapfrogging. And that leapfrogging is (*gasp*) innovation. It's only in a world with patents where copying has value. That's because those patents create monopoly rents -- and thus, there's an artificial profit bubble, that others want access to. That creates a societal net loss.

Given all of this, it makes plenty of sense why patent attorneys could certainly recognize the harm that patents can cause. In fact, I would think such individuals are a lot more trustworthy on patent issues, since you know their position is not influenced by the fact that they make money off of the system. So, no, there's nothing odd about patent attorneys who find problems with the patent system. They're people who recognize the simple fact that just because a system is set up to do one thing, it doesn't mean that it automatically occurs. They're people who recognize that innovation is not synonymous with patents, and are able to take a step back and say what is truly best for innovation.


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  1.  
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    Misanthropist (profile), Oct 1st, 2009 @ 8:31am

    There is a reason for this

    And yet there are some in the patent or copyright legal business who somehow seem to think that it's traitorous for a patent or copyright lawyer to ever dare question the idea that patents and copyrights work.

    Because they know that what they themselves are doing is wrong, and they want to keep doing it.

    They understand they shouldn't be doing what they are doing, but it's so damn profitable.

    They are well aware of the fact that the entire thing will crumble when critical mass of dissent is achieved, and as such, they want everyone profiting off of "imaginary profitables" to tow the line and keep their lucrative system in check.

     

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  2.  
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    angry dude, Oct 1st, 2009 @ 8:33am

    Nonsense

    "Stephen Kinsella, a patent attorney who is against patents"

    Sounds like a butcher who also happens to be an animal rights activist, or a hooker who preaches in church on sundays about the virtues of celibacy

    I doubt he has any clients

     

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  3.  
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    Misanthropist (profile), Oct 1st, 2009 @ 8:41am

    Re: Nonsense

    You realize there is offense and defense in court right?

     

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  4.  
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    weneedhelp (profile), Oct 1st, 2009 @ 8:57am

    The point of argument...

    should not be to have a winner, but to enlighten both parties involved. But damn...sometimes I love watching a good smack down.

     

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  5.  
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    Misanthropist (profile), Oct 1st, 2009 @ 9:07am

    Innovation? I'll give you innovation!

    Someone innovated the entire "imaginary profitables" market before there was even a system in place to profit from such innovation.

    Now, who would have ever bothered innovating an entire market into existance if they didn't have a guarantee on it?

     

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  6.  
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    Daniel (profile), Oct 1st, 2009 @ 9:26am

    Gene Quinn's Challenge

    You DID catch his recent challenge right?
    By the way, I challenge anyone to a debate on this topic anywhere, at any time, to be moderated by a mutually agreed panel or moderator. I know as well as everyone here that I will never be taken up on that offer. I wonder why? If I am so stupid and irresponsible and ignorant then someone take me up and prove to the world I am as such. Of course there will be no takers because in a true debate none of the nay-sayers stand any chance and would be exposed for what they truly are. Nevertheless, the challenge is made. I am sure the silence will be deafening. Or wait, even better… the response will be “there is no point in debating you because you are .” We all know that is what they are going to say, and rational people will understand that to be nothing more than cowardice.
    Care to take up the gauntlet?

     

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  7.  
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    Tor (profile), Oct 1st, 2009 @ 9:28am

    Re: Nonsense

    If I'm not mistaken Kinsella's patent related work has primarily been about defensive patenting. That's also something which can hurt society, but it's much more understandable than offensive patenting of obvious solutions.

     

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  8.  
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    angry dude, Oct 1st, 2009 @ 9:44am

    Re: Re: Nonsense

    What kind of BS is that ?

    defensive patent, offensive patent, blah, balh, blah

    For your information, punky, patent can be valid or invalid. Period.
    Also, patent is a property so it can be "defensive" first and "offensive" after it changes the owner.

    Kinsella is full if shit

     

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  9.  
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    Dark Helmet (profile), Oct 1st, 2009 @ 9:47am

    Re: Re: Re: Nonsense

    I'm confused. Are you suggesting that there is no such thing as a patent/IP attorney who focuses on defending firms from patent suits?

    It doesn't just have to about whether a patent is valid or invalid. Couldn't a patent attorney also be utilized by defense in a lawsuit to prove the defendent didn't infringe upon a patent?

     

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  10.  
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    GregSJ (profile), Oct 1st, 2009 @ 9:54am

    Law & Economy

    For a great overview of the concepts of Economics and Patent law I highly recommend David Friedman's Book Laws Order: What Economics Has to Do with Law and Why It Matters which he has made available online here: http://daviddfriedman.com/laws_order/index.shtml (specifically chapter 11 on IP)

     

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    GregSJ (profile), Oct 1st, 2009 @ 9:56am

    For a great overview of Economics and Patent law I highly recommend David D. Friedman's book Law's Order: WWhat Economics Has to Do with Law and Why It Matters

     

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    dorp, Oct 1st, 2009 @ 10:09am

    Re: Re: Re: Nonsense

    Patent is intellectual property, durak. At least get your definitions straight, if you can't get the logic.

     

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    Dark Helmet (profile), Oct 1st, 2009 @ 10:09am

    Nice

    I also enjoy how Gene completely ignored your comment. Although I will say that, aside from occasionally attempting to play the victim to throw the debate, he's relatively congenial in the discussion.

     

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  14.  
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    Mike Masnick (profile), Oct 1st, 2009 @ 10:09am

    Re: Gene Quinn's Challenge

    I believe Kinsella has already accepted that challenge, but sure I'll accept that challenge as well. I'd be more than willing to debate him as well, if we were ever in the same place.

     

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    dorp, Oct 1st, 2009 @ 10:11am

    Re: Gene Quinn's Challenge

    That's idiotic. So why doesn't he come out to all the patent discussions out there himself? Is he afraid to? Is he that much of a coward that he needs something setup for himself alone and is afraid to wade into "dangerous" waters of the existing dialogue? Pathetic.

     

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  16.  
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    angry dude, Oct 1st, 2009 @ 10:11am

    Re: Re: Re: Re: Nonsense

    Dorp ??

    Is that a foreign word for "retarded fuck" ?

    Do you homework, mudilo

     

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    Dark Helmet (profile), Oct 1st, 2009 @ 10:12am

    Re: Re: Gene Quinn's Challenge

    "I believe Kinsella has already accepted that challenge, but sure I'll accept that challenge as well. I'd be more than willing to debate him as well, if we were ever in the same place."

    Why not just open up a hosted 3rd party site temporarily, on Blogspot for instance, and do it there?

    Waiting for the throwdown suck...

     

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  18.  
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    LoL, Oct 1st, 2009 @ 10:16am

    Video FTW!

    Make it on video please.

     

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  19.  
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    Anonymous Coward, Oct 1st, 2009 @ 10:20am

    Re: Re: Re: Re: Nonsense

    "Patents are commonly referred to as intellectual property"

    Fixed that for you.

    Both patent law and copyright are meant to better society by advancing science and the useful arts. They are regulatory laws by nature.

     

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    6 (profile), Oct 1st, 2009 @ 10:34am

    I don't know man, I'm against Quinn in every conceivable way (and am banned from his page for supposedly telling his customers to not hire him), but I'm not convinced of your position. Copying, in the world of manufacturing does actually have value. Significant value. This isn't the world of infinite goods which you are so fond of speaking about and which I more or less agree with you about. This is about actually getting your hands dirty, buying wood, metal and plastic etc. and making things.

    It's a different ball game, and I believe that there may still be room for patents to play a useful role in promoting those manufacturing arts.

    As an aside let me make you aware that you and Eugene are using "innovation" differently. He uses "innovation" to mean "inventions" generally. You use "innovation" to meant bringing products to market in useful ways and with useful features (so far as I can tell, or something close to that). You need to get your dictionaries straight before you continue to talk to him.

    Still, obviously the monopoly is bad for the market as a whole, but that doesn't mean that disclosed inventions weren't advanced. And in manufacturing arts, those disclosures (enabling copying) do actually have significant value in and of themselves, not just because you set up a monopoly rent.

    This of course does not hold true as much in software and business methods. And that is one reason why I oppose such patents vehemently.

     

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  21.  
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    dorp, Oct 1st, 2009 @ 10:38am

    Re:

    Aspirin can be made by a large number of companies, yet which company sells the most?

     

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  22.  
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    Jim O (profile), Oct 1st, 2009 @ 10:48am

    Re:

    I think 6 makes a good point. I don't think Mike would argue that all inventor's rights should be removed, just as I doubt Quinn would argue that rights should be granted infinitely. The line is somewhere in between, so the debate is about where to draw it.

    I think that if a debate were to proceed that both parties should take extra care to clearly define the point they are trying to make and the differences between stances. If only so that us n00bs can follow along.

    I would actually pay money to watch that debate.

     

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  23.  
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    PT (profile), Oct 1st, 2009 @ 10:51am

    Re: Gene Quinn's Challenge

    What an interesting idea! And there's no need to go far afield or far back in time for examples, because there is recent history here in the USA that perfectly illustrates the point.

    Until about 1970, the USPTO would not grant a US patent on a gaming (as in gambling) device, on the grounds that such were "not useful". I'm particularly thinking of slot machines. That didn't seem to harm innovation, and in spite of the fact that slots were illegal in 49 states, by the 1930s there were more than a dozen companies in the business, all copying each others' designs and innovating furiously to get ahead. Anyone who can be bothered to research it will be amazed at the variety, beauty and technical sophistication that resulted both from competition and from attempts to get round the law. After the federal crackdown in 1951 it got even hotter, with more novel designs appearing in the 1960s than any other period.

    That all changed once gaming patents started to be granted. One company in particular started ruthlessly using patents to drive its competitors out of the US market and if possible, entirely out of business. In the process, it acquired so much wealth and power that when any innovation did appear on the horizon, it could immediately take it for itself and lock it up. The result after a decade or two was a monoculture of gaming machines, differing only in the color of the glass. A glance at this company's annual report shows that even today, years after its most innovation-stifling patent expired, it still makes half its gross profit from patent licensing fees.

    Of course, this couldn't have happened without assistance from the USPTO. A researcher might care to make a list of the examiners' names that appear against this company's portfolio - it's not a long list. As an example of the diligence applied to its applications, check out Patent 6280318, whereby it was granted (in 2001) exclusive rights to use a fan to cool a cabinet of electronics.

     

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  24.  
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    Patent Attorney, Oct 1st, 2009 @ 10:56am

    Re: Nonsense

    This is utter hogwash. I'm a young patent attorney, and I hate the patent system, but I've got substantial debt to pay off, and, guess what? Before taking on the system, I'd like to have a nice bankroll. Supporting a family in New York is Damn Expensive (private school, rent, taxes, etc.), and I'd like to have my financial future secured before I go on a crusade to take down the system that pays me handsomely. Your analogies, "nonsense," are worthy of an eighth grader.

    "If it was fun, they wouldn't call it work." Is there no one else who hates their job but stays at it because it pays the bills? Like, say, repo men? Tech support staff? McDonalds employees? And, by the way, I bet there are more vegetarian McDonalds employees working there because they need the money than you could shake a stick at.

    I'd love to represent noble causes 24/7, but guess what else? Noble causes pay shit. Law school is $50,000 a year. My undergrad was $45,000 a year. A one bedroom apartment in Manhatan is well over a million dollars. Private school is about $20,000 a year. A fucking Budweiser is $6.

    When I've got my own money I'll take on the system; until then, I can sleep well at night being a late 20something making close to $200,000 a year doing something I think is less than entirely noble -- experience, by the way, which will be invaluable when I do inevitably switch sides.

     

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  25.  
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    Gene Quinn, Oct 1st, 2009 @ 10:59am

    Re: Re: Gene Quinn's Challenge

    Mike-

    I am happy to debate you any time, any where. Stephan has agreed to an Internet debate, and I am happy to do the same with you. No need for us to be in the same place at the same time. Of course, I suspect the same place, same time caveat was your way of acknowledging that you have no interest in such a debate.

    I am more than happy to educate you as to why you are wrong and I am correct. So if you are not afraid of being exposed, lets do it!

    -Gene

     

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  26.  
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    Gene Quinn, Oct 1st, 2009 @ 11:06am

    Re: Re: Gene Quinn's Challenge

    PT-

    There is plenty of US evidence to the contrary, and there is no need to rely on a single anecdote in a narrow field like gaming. In the US for generations patents were not respected, and when obtained were unenforceable because most judges never saw a patent that was valid. That changed when Congress created the United States Court of Appeals for the Federal Circuit in the early 1980s, and that has lead to tremendous patent activity, innovation, expansion of the economy and job creation across the board in an unprecedented manner.

    So you are more than welcome to believe you are correct, but the evidence is overwhelmingly against you, and throughout history it is overwhelmingly against you.

    By the way, what allows companies to push others out of the market is a well developed patent strategy. Those who do not like patents and are philosophically opposed do get pushed out because they have no business sense. With such shortsighted approach to innovation those who allow themselves to be pushed out can hardly be of concern. Those who are so naive would never have achieved success. They are to busy complaining about others using the laws and rules and feeling sorry for themselves than they are succeeding.

    -Gene

     

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  27.  
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    Gene Quinn, Oct 1st, 2009 @ 11:11am

    For the record

    Just for the record, this all started because I observed that if you are an inventor or business building on unique technology it is rather silly to hire a patent attorney who thinks that 0 years of patent term is appropriate. So I never said patent attorneys couldn't or shouldn't question the patent system. I think it is safe to say that I am the single loudest and most vocal critic of the Patent Office and the US patent system. I just don't think patents are bad, evil or immoral.

    Anyone that doubts this I invite you to read my website. My positions have been mischaracterized, which is a common tactic by those who do not really care to discuss the issues in an open and honest way.

    I do have tremendous respect for Stephan Kinsella. His willingness to engage in a debate over the Internet is to be admired. It is sad that out of all of those who disagree with me, call me names and think me to be foolish he is the only one who has accepted my challenge. I suspect he will be the only one who accepts, which speaks volumes for those of you who belittle me and refuse to step up to the plate. I may disagree with Kinsella, but his is to be respected and admired for putting his beliefs on the line in what will hopefully be a good, albeit spirited exchange.

    -Gene

     

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    Dark Helmet (profile), Oct 1st, 2009 @ 11:28am

    Re: For the record

    Gene, I'm probably the dumbest person on this site, so please excuse me if I speak in layman's terms with some questions/remarks:

    "I observed that if you are an inventor or business building on unique technology it is rather silly to hire a patent attorney who thinks that 0 years of patent term is appropriate."

    I simply don't understand what one has to do with the other. If a patent attorney can effectively seperate his personal feelings with his business (and shouldn't, really, pretty much EVERYONE do that?), then it shouldn't make any difference. If he's an effective patent attorney, and I haven't seen anything to suggest that he isn't (court case record, pro/con experiences with him, etc.), then this simply feels like a personal attack. I understand that might not be how you meant it, but unless you truly believe that Kinsella cannot separate his personal feelings from the system in which he operates...I just don't get it.

    "I just don't think patents are bad, evil or immoral."

    Well, hell, I don't speak for the majority, probably, but I don't think any of those things either, if kept EXTREMELY limited. There are times when short patents make sense to ensure an inventor is allowed to be the first to market. But truly, there is no reason I can fathom why that term should be anything beyond a year or two. There is no duty to inventors to provide them a monopoly until they recoup costs and get in the black. There's also no reason that a patent that isn't used within a year of issue should EVER be enforced, imho. You take those two suggestions, while KEEPING that limited patent system, and I think you simultaneously protect inventors (societal benefit), encourage them to USE their inventions in the market (societal benefit), and kill off patent trolls (societal benefit).

    I'd be interested in hearng your opinion on that. FYI, I am also going to spend some time reading your site over the next few days.

    "I do have tremendous respect for Stephan Kinsella."

    Frankly, to the lay observer, you didn't show it and it didn't look like it. Sorry.

     

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  29.  
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    Mike Masnick (profile), Oct 1st, 2009 @ 11:28am

    Re: Re: Re: Gene Quinn's Challenge

    I am happy to debate you any time, any where. Stephan has agreed to an Internet debate, and I am happy to do the same with you. No need for us to be in the same place at the same time. Of course, I suspect the same place, same time caveat was your way of acknowledging that you have no interest in such a debate.

    Um, Gene, why would I have spent all this time proving you wrong if I had "no interest in such a debate"?

    Geeze.

    In the meantime, if you want an internet debate, why not try actually responding to what I wrote above? The debate is happening now, but somehow you're not participating.

    My reason for saying that "if we're in the same place" is that I'm pretty busy and have no interest in traveling anywhere just to have a debate with someone who ignores the evidence and then brushes it off as "biased academics". That doesn't seem productive.

    I am more than happy to educate you as to why you are wrong and I am correct. So if you are not afraid of being exposed, lets do it!

    Again, go right ahead. The comments are open and I'm eagerly awaiting your "proof." I already presented a lot of proof above that you are incorrect, and I haven't seen you refute any of it yet.

     

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    Tor (profile), Oct 1st, 2009 @ 11:31am

    Re: Re: Re: Nonsense

    A thought experiment: let's say that we didn't have any laws or police protection from unjustified violence directed against us. That would probably lead to two things:

    1) scared people would probably employ guards
    2) a few people would probably use mafia methods like threatening people if they don't pay up

    I would argue that these two are morally quite different. Now compare this to the patent situation. If we have laws that allow offensive behaviour, many will try to defend themselves since it's in their self-interest. I don't find that behaviour very offending or surprising. Let's direct our attention at the system itself.

     

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  31.  
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    Geof, Oct 1st, 2009 @ 11:39am

    Stunning anti-intellectualism

    Would you please stop reading studies and look at history! Studies are done by academics with an agenda, are based on thought experiments, do not take into consideration important factors and are preconceived in order to come out with a particular answer.

    Wow. This looks to me like another instance of knee-jerk anti-intellectual I Know (Just KNOW) How Things Are Don't You Dare Confuse Me With Reason Or Evidence getting way out of hand. What he’s doing here is basically dismissing the whole of scientific method.

    He claims that, unlike just about any other area of study or scientific endeavor, “there are no facts or legitimate arguments that can be made to counter what I am saying.” “The facts are clear, no studies are necessary.” So what are those facts? He writes, “because India has become a major player over the years Indian law was changed to protect pharma.” Uh, I don’t think putting the effect before the cause shows the point he’s trying to make. Never mind: “Everyone,” he says, “acknowledges that Bayh-Dole is the most successful piece of legislation in the post World War II era.” Really? Is that a fact? Should we resolve the issue of the effectiveness of patents with a popularity contest? He is playing a rhetorical game, asserting his claims are “fact” while contrary claims are mere “studies.”

    Instead of actually reading and critiquing studies he dismisses them simply because they are studies. He only makes the assertion that they are biased: he doesn't actually provide any evidence. Maybe that would be contrary to his anti-academic position. What he does say is this (a “thought experiment”):

    These same folks that look at studies will . . . point out that when something is funded by industry . . . it should be taken with a grain of salt. Yet, when those with an anti-patent agenda do a study that concludes patents are bad . . . they are hailed as heroes for conducting truly independent and impartial research

    Yes indeed, human beings have interests and agendas. But it’s not enough to say everyone has a bias and stop there - otherwise, how would we every come to any conclusions about anything? We need to see what that specific bias is and take it into account. What are the agendas of the researchers he dismisses? Are they all the same? Can we find evidence that they affect the results of the studies? If so, what are the actual problems with the research? This is rather important. A lot of academics spend a lot of time looking at just this kind of thing and also - get this - using their expertise to critique each others’ work. Apparently that doesn’t matter when you are privileged to be in position of “the facts.”

    For goodness sake, you can’t just ignore research because you don’t like the person doing it. You actually have to look at the research! If I say 2+2=4 I’m not wrong because you don’t like me or don’t trust me; if I say 2+2=3 I’m not right because you do. Sure, take that into account. Be suspicious. Then you actually need to do the math. What he’s doing here is giving an excuse for why he doesn’t think he should have to.

     

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  32.  
    icon
    Tor (profile), Oct 1st, 2009 @ 11:59am

    Re: Re: Re: Gene Quinn's Challenge

    Gene Quinn wrote: "By the way, what allows companies to push others out of the market is a well developed patent strategy. Those who do not like patents and are philosophically opposed do get pushed out because they have no business sense. With such shortsighted approach to innovation those who allow themselves to be pushed out can hardly be of concern. Those who are so naive would never have achieved success. They are to busy complaining about others using the laws and rules and feeling sorry for themselves than they are succeeding."

    Wow, that's an amazing view on the purpose of patents and it's overall place in the market economy. So fitness in the marketplace is somehow measured by the extent to which you employ methods to limit your competitions rather than winning on your own merits?

     

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  33.  
    icon
    Richard Corsale (profile), Oct 1st, 2009 @ 12:03pm

    Re: Re: Nonsense

    I hope this comment doesn't surface when you do "switch sides". Your new message would sound hypocritical, as opposed to a spontaneous epiphany.

    Remember, the Internet never forgets...

     

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  34.  
    identicon
    Jackie Hutter, Oct 1st, 2009 @ 12:04pm

    A patent attorney's response

    As a "recovering patent attorney" I don't think there is anything inconsistent about questioning the value of patents and how they affect innovation. As we learned in law school, the truth in any particular situation truth depends on the context. So, it is true that patents can harm innovation, and it is also true that patents can be critical for innovation. In other cases, patents don't matter one little bit to innovation. The devil is in the details, of course. It does all a disservice to make unsupported generalizations about the value or lack thereof of patents without looking at the facts of the particular situation.

    We must remember that patent attorneys get paid for getting patents, thus we are predisposed to be on the side of patenting. As such, for someone who makes a living in the patent business, it is a bit like "the fox guarding the henhouse" to suggest that patents are the end-all, be-all of innovation. In truth, however, most innovators would do what they were doing even if patents did not exist. It is also true that most patents end up being worthless (except to patent attorneys) because they do not protect a product or technology that is currently or potentially in the marketplace. For successful innovations with long shelf lives, patents are critical. For innovation failures or protects with a limited sales cycle, not so much. And, where an important innovation is covered by broad patent rights, it can be argued that patents "harm" (or at least slow down) innovation. In short, everyone is right in their own way, depending on what we are talking about.

    And, speaking of history, it would help to remind everyone that the reason the US patent system exists is to spur innovation by promoting disclosure. The quid-pro-quo for this disclosure was "exclusive rights for a limited time." Over the years, this disclosure policy effectively became co-opted by perspective that patents are more importantly a property right. So, I get why people say patents "harm" innovation, but we need to also understand that today the disclosure policy of patents is more possible than ever before because of the internet. Those who are vehemently "anti-patent" need to recognize that you may not even know about the innovation that is allegedly being "harmed" if the patentee hadn't filed the patent application in the first place.

     

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  35.  
    identicon
    PT, Oct 1st, 2009 @ 12:08pm

    Re: Re: Re: Gene Quinn's Challenge

    Gene Quinn wrote By the way, what allows companies to push others out of the market is a well developed patent strategy. Those who do not like patents and are philosophically opposed do get pushed out because they have no business sense. With such shortsighted approach to innovation those who allow themselves to be pushed out can hardly be of concern. Those who are so naive would never have achieved success.

    Now you've just convinced me you haven't got a clue what you're talking about.

     

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  36.  
    icon
    Chronno S. Trigger (profile), Oct 1st, 2009 @ 12:15pm

    Re: Re: Re: Re: Gene Quinn's Challenge

    That's exactly what he's saying. He's saying that the person who creates something and tries to make the best of it is less worthy of success than the guy who takes the same idea, patents it, and then forces the first person out of business, all without producing the patented item.

     

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  37.  
    icon
    weneedhelp (profile), Oct 1st, 2009 @ 12:17pm

    Re: Re: Nonsense

    "When I've got my own money I'll take on the system; until then, I can sleep well at night being a late 20something making close to $200,000 a year doing something I think is less than entirely noble -- experience, by the way, which will be invaluable when I do inevitably switch sides."

    No you won't. By the time you have your own money, your greed level will overcome your conscience. Your comment proves that. Take your 200k and stick it. Sleep well on your pile of money, because you have no morals.

    By your logic, you cannot gain "valuable" experience unless being paid a huge salary? So sad.

     

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  38.  
    icon
    Richard (profile), Oct 1st, 2009 @ 12:18pm

    Re: Re: Re: Gene Quinn's Challenge

    By the way, what allows companies to push others out of the market is a well developed patent strategy.

    What you are saying here is
    "Patent expertise trumps technical innovation, business skill, customer relations, marketing and good financial management."

    If business was a sport and the rules created such a lopsided dependency on something that ought to be a side issue they would be changed very quickly.

     

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  39.  
    identicon
    angry dude, Oct 1st, 2009 @ 12:27pm

    Re: Re: Nonsense

    switch sides ???

    you wanna become one of techdirt or slashbot punks ?

    Apparently drinking too much budweiser severely affected your mental ability

    Do you have something better in mind to replace patent and copyright system ?

    Just don't spew nonsense like "sharing knowledge is mutually beneficial", "first-mover advantage" blah blah blah

    This is a dog-eat-dog jungle called capitalism, pal
    Live with it

    othewise MickyD is hiring

     

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  40.  
    icon
    Richard (profile), Oct 1st, 2009 @ 12:31pm

    Re:

    Still, obviously the monopoly is bad for the market as a whole, but that doesn't mean that disclosed inventions weren't advanced. And in manufacturing arts, those disclosures (enabling copying) do actually have significant value in and of themselves, not just because you set up a monopoly rent.


    The major selling point of patents is supposed to be that they encourage inventors to disclose their inventions in return for the monopoly. Unfortunately they still have the option of retaining secrecy if they wish. The result is that if an idea is really non-obvious and can be kept secret then it is kept secret.

    The obvious ideas get patented along with the ideas that have to be disclosed anyway to sell the product.

     

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  41.  
    icon
    Chronno S. Trigger (profile), Oct 1st, 2009 @ 12:46pm

    Re: Re: Re: Nonsense

    As much as I know it's pointless to argue with you:

    Patents are more anti-capitalism, since it provides a government granted monopoly to one person in the market.

     

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  42.  
    icon
    weneedhelp (profile), Oct 1st, 2009 @ 12:47pm

    Re: Re: Nonsense

    "Tech support staff"
    Thats what I do and, no I would not stay somewhere where I was not happy, or treated me wrong. Aww so sad, you could send your kid to a public school for free. Even better, move somewhere less expensive. You CHOOSE to live in Manhattan. You CHOOSE to send your kid to a private school.

    "I can sleep well at night being a late 20something making close to $200,000 a year doing something I think is less than entirely noble"
    YES, its called selling out. So you are fine with being a lair now, but by some miracle, in a few years or so you will "switch sides"?

     

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  43.  
    icon
    weneedhelp (profile), Oct 1st, 2009 @ 12:53pm

    Re: Re: Re: Nonsense

    No matter what side of the argument you
    are on, you always find people on your
    side that you wish were on the other.

     

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

  44.  
    icon
    Stephan Kinsella (profile), Oct 1st, 2009 @ 1:56pm

    Re: For the record

    "if you are an inventor or business building on unique technology it is rather silly to hire a patent attorney who thinks that 0 years of patent term is appropriate."

    This is idiotic. The patent lawyer's normative beliefs about the patent system have nothing to do with his competence at navigating in that system. Clients want competence.

    "So I never said patent attorneys couldn't or shouldn't question the patent system."

    Well, you think no one should hire them, so they wouldn't be patent attorneys very long, would they?

    "I think it is safe to say that I am the single loudest and most vocal critic of the Patent Office and the US patent system."

    uh, no it's not.

     

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  45.  
    icon
    Richard (profile), Oct 1st, 2009 @ 2:24pm

    Re: A patent attorney's response

    For successful innovations with long shelf lives, patents are critical.

    Can you give an example of this?

    but we need to also understand that today the disclosure policy of patents is more possible than ever before because of the internet. Those who are vehemently "anti-patent" need to recognize that you may not even know about the innovation that is allegedly being "harmed" if the patentee hadn't filed the patent application in the first place.

    In my experience as academic researcher and industrial developer in physics and in computing I would say that the kind of disclosure provided by patents is pretty much worthless.

    They are written in an incomprehensible legalese which seems to be designed to stake out a claim without allowing you to understand what is being claimed.

    The communication mechanisms that do count are peer reviewed conferences and journals. The papers in them very rarely reference patents because there is so little of value there. Most patents would be rejected from the top journals and conferences for being inadequately innovative.

    From a research point of view the patent system is a backwater.

     

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  46.  
    icon
    anymouse (profile), Oct 1st, 2009 @ 4:58pm

    If only this were reality...

    "but we need to also understand that today the disclosure policy of patents is more possible than ever before because of the internet."

    BUT those damn patent attorneys are also hellbent on getting 'willful infringement' claims (gotta love those 3x fines for doing nothing), so most companies that do R&D specifically FORBID their employees from reviewing similar or related patents to avoid being sued for what is probably an obvious idea in the first place.

     

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  47.  
    identicon
    Lawrence D'Oliveiro, Oct 1st, 2009 @ 6:52pm

    Re: A patent attorney's response

    Jackie Hutter wrote:

    As we learned in law school, the truth in any particular situation truth depends on the context.

    But was that only true in the context of law school, or does it somehow apply in other contexts as well?

     

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  48.  
    identicon
    Benefacio, Oct 1st, 2009 @ 7:17pm

    Re: Re: For the record

    "If a patent attorney can effectively seperate his personal feelings with his business (and shouldn't, really, pretty much EVERYONE do that?)"

    All the successful people I have talked to or read about contributed a large part to enjoying what they were doing to achieve success. If you are not personally invested in your own success how can you expect to succeed? After 30 years in the workforce I have done plenty of work I did not enjoy. I finally figured out what I enjoy doing and am more successful than I have ever been; and happy to boot!

    I agree with Mr. Quinn on this, it IS silly to hire an attorney that does not believe you should win, much less can win.

     

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  49.  
    identicon
    Lawrence D'Oliveiro, Oct 1st, 2009 @ 7:40pm

    Re: Challenge to Gene Quinn

    Gene Quinn claimed:

    There is plenty of US evidence to the contrary, and there is no need to rely on a single anecdote in a narrow field like gaming. ...when Congress created the United States Court of Appeals for the Federal Circuit ... that has lead to tremendous patent activity, innovation, expansion of the economy and job creation across the board in an unprecedented manner.

    Do you have any examples, references or citations to back up your claim? Any studies, even? Oh wait—you’ve already admitted that all the studies show the opposite.

    But why can’t you conduct your own study? All you’ve got to do is abide by the same standards of research as everybody else. In particular, document your sources, so others can verify your conclusions.

    Are you up to it?

     

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  50.  
    icon
    Derek Kerton (profile), Oct 1st, 2009 @ 8:14pm

    Re: Nonsense

    Then you don't think very thoroughly.

    And my statement there is a testable hypothesis. The fact that he does have clients supports it.

     

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  51.  
    icon
    Derek Kerton (profile), Oct 1st, 2009 @ 8:23pm

    Re: Re: Re: Gene Quinn's Challenge

    Gene,

    You keep acting like Masnick or Kinsella would be afraid to debate you when the immediate evidence is to the contrary. How you flatter yourself!

    Don't you think you should change that belief when they both readily accept the debate challenge...after having already de facto accepted the challenge by debating you in their (and your) blogs.

    I mean, with such a poor grip on the "obvious", and the VERY recent "history", are you credible to talk about which IP system is obviously superior, or the lessons of history?

     

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  52.  
    icon
    Derek Kerton (profile), Oct 1st, 2009 @ 8:49pm

    Re: Re: Re: Gene Quinn's Challenge

    Gene,

    A "single anecdote" would be an example like an inventor client of yours who said that patents incentivized him to invent. And I believe you did drop that exact single anecdote on your blog. But as you mention here, an isolated anecdote is utterly worthless in debate. Studies of n=1 don't offer rigorous conclusions.

    The game machine case is not a simple anecdote. It's a real-world test of your pro-patent hypothesis which occurred over years in the marketplace with multiple people, companies, products, and measurable results. And, like most similar studies, it indicates you are wrong.

    You have an uncanny knack for cognitive dissonance - the ability to ignore arguments that don't support your worldview. You also continue to write about this "plenty of evidence to the contrary" sans EVER actually offering any of it. DO YOU UNDERSTAND THAT WE MIGHT ENJOY IT IF YOU BACKED THAT UP JUST ONCE? Saying: "that has led to tremendous patent activity, innovation, expansion of the economy, and job creation" is not evidence. That is your opinion. The evidence is overwhelmingly against YOU. The system, however, is in full support of you. This is why we are upset.

    Well, that addresses your first paragraph. In your second paragraph, I go from thinking you are a little dumb to just thinking you are an arrogant prick. You actually argued that? Get ready to see that quoted around a fair bit. That is a few lines of grade A Interwebs fool's gold.

    In your opinion the best innovators, the best businessmen are those that hide between the legs of Daddy government when competition comes out to play? Good businesses are not built on innovation and getting great products to market, but instead are reliant on good artificial monopolies -- hey, helped along by people like you. Yep, YOU are the heart and soul of American innovation. And those foolish enough not to turn to you, but instead hope they can win in the marketplace, those guys deserve to be flushed down the drain. Such self-aggrandizing, misguided hogwash!

    And tautologican nonsense, too: The system is good, because those that work the system do well. And therefore, the rest are just losers and deserve their job in fast food. If it wasn't clear before why you should never, ever have a role in setting policy, I think you just nailed it down.

    At least Angry Dude can be funny.

     

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  53.  
    icon
    Derek Kerton (profile), Oct 1st, 2009 @ 9:03pm

    Re: Re: Re: For the record

    You do understand that there are different sides to any patent lawsuit right? Here's two:

    - A firm will be sued out of existence in our current system if they don't have some patents with which to threaten back, thus, they seek a defensive patent portfolio. A laywer is needed.

    - A firm is sued for infringing a patent, when the patent is overly broad, or wasn't very innovative. They need to defend themselves or try to invalidate the patent. A lawyer is needed.

    - An investor is looking to invest in firm, and wishes to know the value of the IP portfolio. Or perhaps they worry that the firm my be attacked with IP. They might want to consult a patent attorney.

    - A firm is inventing and building a product for market. They may want to know if that product crosses any imaginary property owned by another person. A patent attorney comes in handy.

    OK, so I said two and typed four in about 4 minutes. You see how --even if Kinsella never worked in a pro-patent capacity-- he could still remain quite busy in law practice?

    And figure that maybe, just maybe, Kinsella can separate his personal beliefs, and give his clients good advice despite his politics. He could tell a client how to file a strong patent, then. If Kinsella is a Libertarian, should he not be allowed to give legal advice for Democrats? If a criminal lawyer is against murder, should he then not be able to defend those accused of murder?

    Why doesn't Mr. Quinn understand that there are roles for anti-IP patent lawyers, and why doesn't he understand that people can work for their clients even if they don't share the same policy preferences? THAT's the kind of lawyer I'd be reticent to hire. I'm not looking for a cheerleader, I'm looking for competent counsel.

     

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  54.  
    identicon
    Luci, Oct 1st, 2009 @ 9:57pm

    Re: Re: Re: Nonsense

    Nah, I'll stick to disability so you can keep paying my mortgage. Nothing wrong with being a Techdirt punk. We get entertained on a daily basis by idjits like you.

     

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  55.  
    identicon
    Scared, Oct 2nd, 2009 @ 6:25am

    On the topic of how much people don't understand about patents, I was watching a show on TV the other night, I had missed the beginning but I gather the topic was the patenting of genes, for use by pharma to make medicine. The guy from a major pharma company who's name (both guy and company) actually said, and I quote directly here "Without patents there would be no medicine." I would be terrified to find out that I live in a world where nobody would cure any illness if they couldn't make a buck out of it.
    The show was on 2 night ago on Australian ABC TV if any fellow aussies caught it and can remember more details.

     

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  56.  
    identicon
    Gene Cavanaugh, Oct 2nd, 2009 @ 12:26pm

    Patents can't help small inventors?

    Mike, you are becoming more and more reasonable (or centrist, or ???), and I am very encouraged.
    For my part, you have changed my mind and improved my understanding dramatically. I now wholeheartedly support your condemnation of the patent system as it is presently (ab)used.

    So, I ran a purely unscientific, limited study. A few of my clients (remember, I represent ONLY small entities, because I am disgusted with large entity ("defensive" patent) abuses - in fact, I see the whole thing as totally abusive, in place to gain large campaign "donations" for politicians), and got the following:

    Nearly all the small entities I represent say that they would NOT expose their ideas to the public without patent protection (and some of them have the "ideas of the future", remember, nearly ALL "breakthrough" ideas come from small entities). They point out that better financed, better known competitors would "skim the cream" (steal any idea worth the effort of developing) if they didn't have IP protection. I know of cases in the past where ideas that were of great importance were suppressed, and therefore took many, many years before they were known, for this reason.

    Be honest; if you had a breakthrough, "killer" idea, would you spend thousands of dollars of your own money to bring it to the market (VCs, generally, don't fund true breakthroughs, only improvements like Google) if you knew some better heeled and more powerful person would take it from you before you could get your money back? To me, that is the same thing as asking if you are stupid - and I know you are not.

     

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  57.  
    identicon
    Steven Haddock, Oct 3rd, 2009 @ 5:37pm

    Trade secrets

    One of the arguments made to us when I was studying intellectual property was that patents encourage innovation by preventing innovators from trying to save and enforce trade secrets instead. However, would strong trade secrets law do more for innovation than patents? Trade secrets obviously don't stay secret very long. Once something is released into the market, it's pretty easy to figure out how it works. In addition, there are tons of examples of two innovators coming up with basically the same idea within a very short period of each other.

     

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  58.  
    identicon
    Scote, Oct 7th, 2009 @ 4:16pm

    Re: A patent attorney's response

    "And, speaking of history, it would help to remind everyone that the reason the US patent system exists is to spur innovation by promoting disclosure. The quid-pro-quo for this disclosure was "exclusive rights for a limited time." Over the years, this disclosure policy effectively became co-opted by perspective that patents are more importantly a property right."

    And there is one of the most important parts of the problem. Today, patents are carefully crafted to disclose nothing but claim everything. And even where there is disclosure, it is not a disclosure that is needed or useful for others to build on in the future.

    The idea behind patents was that people would keep trade secrets, which withheld innovation. The patent systems says, disclose your secret innovation and we'll give you a government monopoly for a limited time. Win win. But todays patents, especially software patents, are not useful disclosures. And most inventions couldn't be kept as trade secrets anyways since those secrets are generally about manufacturing processes rather than some easily discerned innovation or easily revere engineered technology in an end-user product. So, the system no longer serves its constitutional purpose. It is pretty stunning that Quinn doesn't get that.

     

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  59.  
    icon
    The Mad Hatter (profile), Oct 13th, 2009 @ 3:39pm

    Innovation

    As an aside let me make you aware that you and Eugene are using "innovation" differently. He uses "innovation" to mean "inventions" generally. You use "innovation" to meant bringing products to market in useful ways and with useful features (so far as I can tell, or something close to that).
    Now here is where you run into big problems. Gene doesn't understand technology, and argues that even the smallest change is patentable (for an example, propane has been used to fuel forklifts for years, from Gene's point of view a propane fueled go-kart would be patentable, where as I consider it obvious). Gene's idea of an invention is so broad that it's ridiculous. I was rather amused to find that his opinions on this are close to those of Ronald J. Riley of the Professional Inventors Alliance.
    Still, obviously the monopoly is bad for the market as a whole, but that doesn't mean that disclosed inventions weren't advanced. And in manufacturing arts, those disclosures (enabling copying) do actually have significant value in and of themselves, not just because you set up a monopoly rent.
    It doesn't mean that they "disclosed inventions" were advanced either, and that is the whole point of the Patent System. As to the value of the disclosures, what value do they have, and to who? In the United States the monopoly granted by an issued patent, is granted solely for the benefit of the citizens of the United States. If they are not getting any benefit from the patent, then the patent system is unconstitutional, and therefore illegal.

    And that is Mike's point. Either the patent system delivers a value to the citizens of the United States, or its unconstitutional.

     

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  60.  
    icon
    The Mad Hatter (profile), Oct 13th, 2009 @ 4:06pm

    But what if...

    But what if Patents are unconstitutional, as I believe they are? The U.S. Constitution reads:
    To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries
    If patents do not do this, then their legality under the Constitution is questionable.

     

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

  61.  
    identicon
    Harvey, Nov 19th, 2009 @ 9:56pm

    R&D

    If we didn't have patents, then anytime a company put out a new innovative product, other companies would be able to copy it identically and compete with the first company. This would destroy any incentive to do R&D to develop new products. You would instead just wait for someone else to put out the product and copy them. I think the writer has a problem with obviousness practice and not the concept of patents themselves.

     

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  62.  
    identicon
    David, Aug 25th, 2012 @ 12:51pm

    gene quinn, prick

    I found this after having a similarly illogical argument with Quinn, who understands not one iota of economics, and a very skewed reading of patent history. So, no I'm not crazy, Gene Quinn is one of the dumbest patent lawyers around who believes ideology substitutes for intellect. I feel sorry for him.

     

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


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