What If The Very Theory That Underlies Why We Need Patents Is Wrong?

from the collaborative-innovation-at-work dept

Scott Walker points us to a fascinating paper by Carliss Y. Baldwin and Eric von Hippel, suggesting that some of the most basic theories on which the patent system is based are wrong, and because of that, the patent system might hinder innovation. Obviously, we've pointed to numerous other research papers and case studies that suggest that the patent system quite frequently hinders innovation, but this one approaches it from a different angle than ones we've seen before, and is actually quite convincing. It looks at the putative theory that innovation comes from a direct profit motive of a single corporation looking to sell the good in market, and for that to work, the company needs to take the initial invention and get temporary monopoly protection to keep out competitors in order to recoup the cost of research and development.

The problem is that while this is certainly true sometimes, in many, many, many other cases -- it's not the way it works at all. Instead, the paper goes through a whole bunch of studies suggesting that quite frequently innovation happens through a very different process: either individuals or companies directly trying to solve a problem they themselves have (i.e., the initial motive is not to profit directly from sales, but to help them in something they were doing) or through a much more collaborative process, whereby multiple parties all contribute to the process of innovation, somewhat openly, recognizing that as each contributes some, everyone benefits. As the report notes:
This result hinges on the fact that the innovative design itself is a non-rival good: each participant in a collaborative effort gets the value of the whole design, but incurs only a fraction of the design cost.
But, of course, patents are designed to make that sort of thing more difficult, because it assumes that the initial act of invention is the key point, rather than all the incremental innovations built on top of it that all parties can benefit from. In fact, the report points to numerous studies that show, when given the chance, many companies freely share their ideas with others, recognizing the direct benefit they get. This flies in the face of (unsubstantiated) claims by patent system supporters that the patent system is needed to disclose and share inventions. In fact, the evidence suggests that in many cases, firms will willingly share that information anyway (for a variety of reasons detailed in the report) without requiring the "prize" of a monopoly right to do so.

Even more importantly, the paper finds that due to technological advances and the ability to more rapidly and easily communicate and collaborate widely, these forms of innovation (innovation for direct use as well as collaborative innovation) are becoming more and more viable across a variety of industries, which in the past may have relied more on the old way of innovating (single company innovative for the profit of selling that product). And, in fact, because of the ease of communication and collaboration these days, there's tremendous incentive for those companies that innovate for their own use to collaborate with others, since the benefit from others improving as well help improve their own uses. Thus, the overall incentives are to move much more to a collaborative form of innovation in the market. That has huge implications for a patent system designed to help the "old model" of innovation (producer inventing for the market) and not the increasingly regular one (collaborative innovation for usage).

Of course, no one is saying that producer-based innovation (company inventing to sell on the market) doesn't occur or won't continue to occur. But it is an open policy question as to whether or not our innovation policies should favor that model over other models -- when evidence suggests that a significant amount of innovation occurs in these other ways -- and that amount is growing rapidly.

The paper points out that the "devil's bargain" of granting monopoly rights in order to create incentives for producer-driven innovation makes less and less sense:
The work in this paper and that of many others, suggests that this traditionally-struck 'devil's bargain' may not be beneficial. First, there is increasing evidence that intellectual property protection does not increase innovation. As we saw in section 2.2, studies carried out over 40 years do not find that firm managers are inclined to increase their innovation investments due to the availability of patent grant protections. There are also many examples in which strong intellectual property rights may have impeded subsequent progress (Dosi, Marengo and Pasquali, 2006; Merges and Nelson, 1994). Indeed, recent empirical work has actually shown a negative relationship between patenting and subsequent progress in both biotechnology (Murray and Stern 2007) and software (Bessen and Meurer 2008). Second, the ascendent user and open collaborative innovation models that we have discussed in this paper mean that alternatives that are open by participants' free choice -- and to the economic benefit of those participants -- are now ascendent alternatives to the traditional, closed producer innovation model. And openness, as we noted above, increases social welfare, other things equal.
The paper concludes with some policy recommendations, seeking to have the government look for ways to encourage more collaborative and open innovation, such as by supporting more open licensing programs directly (such as open source licenses), though I'm not sure what specific support the government really needs to do there. It also suggests that net neutrality actually plays into this as well -- as one of the reasons why there is greater collaboration is that a neutral network infrastructure made that possible. Removing network neutrality could limit the ability to collaborate, and because of that, the social benefit found from such collaborative projects. Again, I'm not convinced that any ISP would go so far as to restrict communication to that level, but it is an interesting note.

Either way, it's yet another study that suggests our patent system is tremendously obsolete in terms of actually promoting the progress, and is set up in a way that favors a concept of innovation and invention that may not be how the world actually works.


Reader Comments (rss)

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  1.  
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    Ima Fish (profile), Apr 15th, 2010 @ 7:54am

    "the patent system might hinder innovation"

    What was the most amazing invention of the last century? The transistor. The first patent regarding the transistor was filed in 1925. The second patent was filed in 1934. The third was in 1947.

    However, the father of the transistor, William Shockley, the guy who actually got it to work and made it useful. The guy who rolled up his sleeves and actually made it commercially viable. The guy who actually laid the foundation for what is now called Silicon Valley... had absolutely no patent on it.

    Exactly how did those patents help innovation when the true innovator, i.e., the guy who got it to work, was not "incentivized" by the patent system at all?

     

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    Dark Helmet (profile), Apr 15th, 2010 @ 7:56am

    Thoughts...

    "But, of course, patents are designed to make that sort of thing more difficult"

    Doesn't the patent system smack of someone taking a messy, convoluted, nuanced problem and throwing an overly simplistic solution at it? I imagine that invention and innovation both can happen in a myriad of ways. Why do we have only one tool to use? It seems to me that there are two ways to do this: either you have many tools/avenues to apply to invention/innovation, or you have none and let the chips fall where they may.

    It also seems obvious to me that you can't do the first option because our government agencies, due to large population IMO, can't handle nuance and subtlelty. That leaves us with the nothing option, which we also can't trust a government built on bueracracy that only knows how to get bigger to implement.

    I just don't see how we get from point A to point B....

     

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    Logo, Apr 15th, 2010 @ 8:22am

    Indie Games are a great example for this

    The way this article reads reminds me a lot of the independent game scene. The indie scene is seeing tons and tons of innovation and all of it comes from people trying to solve their own problems, sharing the solution to their problems, or collaborating together. As a result there's an overabundance of great tools, libraries code snippets, and other resources for people.

    Maybe it's success is not quite applicable to other industries, but it still seems to be a good example of what the article was getting at.

     

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    mike42 (profile), Apr 15th, 2010 @ 8:26am

    Open source software

    If a monopoly was truly necessary for invention and innovation, and such things existed in software, then there would be no Linux, no open source anything. The very existance of such projects (and many research projects are open source) is proof enough to any reasonable person that there is no need for patents in general, and certainly not for software.

     

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    DH's love child, Apr 15th, 2010 @ 8:39am

    Re: Open source software

    In the US, at least, it does exist. It's just that Open Source chooses to work outside the restrictive framework of the patent/copyright jungle.

     

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    Crosbie Fitch (profile), Apr 15th, 2010 @ 8:49am

    Correlation != Causality

    "Because we did have patents throughout the industrial revolution, they must therefore have been critical in enabling the industrial revolution"

    So, without patents the industrial revolution would never have occurred...

    Better keep them on the statute books then eh?

    Just to be safe.

     

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    Anonymous Coward, Apr 15th, 2010 @ 9:10am

    Re:

    According to Wikipedia (I know), Shockley received a patent in 1951.

     

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    Anonymous Coward, Apr 15th, 2010 @ 9:14am

    So many comments on articles such as this and referenced studies. So little familiarity, if any, with what transpires during the process of "invention", as well as the decision-making process used to determine how best to protect, if at all, resulting "inventions".

    It would be a pleasant surprise indeed if an academic would just once quit relying so slavishly on the published works of his/her colleagues, and instead take a trip over to an R&D lab and see how work is done in the world outside academia. Who knows? Perhaps they might learn that the foregoing processes are much more extensive and nuanced than their publications suggest.

    BTW, there are many valid and useful reasons to file a patent application besides ultimately securing a patent. For example, there are situations that arise on occasion where one who has no need for a patent files an application anyway because of the beneficial effect it may have to deal with other areas of law that can inhibit free disclosure of an invention to the world at large. These include, inter alia, overcoming limitations associated with the Export Administration Act and the Arms Export Control Act, two bodies of law that constrain free disclosure of certain activities relating to US national security interests pending review by either the Department of Commerce or the Department of State.

     

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    Anonymous Coward, Apr 15th, 2010 @ 9:27am

    Re:

    Good job spending 3 paragraphs saying absolutely nothing to refute the post or the references.

     

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    Free Capitalist (profile), Apr 15th, 2010 @ 9:38am

    What AC said...

    It would be a pleasant surprise indeed if an academic would just once quit relying so slavishly on the published works of his/her colleagues, and instead take a trip over to an R&D lab and see how work is done in the world outside academia. Who knows? Perhaps they might learn that the foregoing processes are much more extensive and nuanced than their publications suggest.


    100% Agree.

    IMHO the proofs and practices of academia are largely masturbatory, and entirely overrated as a primary (sometimes solely recognized) source of useful advisory and educational services. Then again, I'm biased from personal experience against the collegiate and lower educational systems in place.

    True learning happens in the "doing", as does innovation. Theory can get you to the doorstep, but you have to be willing to throw it out from there.

     

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    Ima Fish (profile), Apr 15th, 2010 @ 9:39am

    Re: Re:

    My comment was actually a repeat from last year. At the time I didn't find anything, but now that you've got me to look again I've found this.

    Damn, I hate when a great idea is destroyed by the truth!

     

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    Free Capitalist (profile), Apr 15th, 2010 @ 9:39am

    Re:

    Oops, I replied to this comment in a new thread. I was running on theory alone.

     

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    JMG, Apr 15th, 2010 @ 9:48am

    Re:

    So many comments on articles such as this and referenced studies. So little familiarity, if any, with what transpires during the process of "invention", as well as the decision-making process used to determine how best to protect, if at all, resulting "inventions".

    Ok, quick question for you in light of this statement: which is more difficult, the invention of a new device/concept/idea or the execution of a device/concept/invention? Let me tell you how I'd answer that. I can come up with ideas and devices all day long (cures for diseases, gadgets to help in the kitchen, teleportation booths), but making these concepts into real products that work in the real-world are much more difficult due to costs, unforeseen issues, related technical problems, and so on. My point is that invention isn't exactly the end-all of progress, and patenting inventions doesn't always (if most of the time) promote progress.

     

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    Anonymous Coward, Apr 15th, 2010 @ 9:50am

    Scratching itches

    either individuals or companies directly trying to solve a problem they themselves have ...


    Exactly. In software development it is often said that the best innovations in software come about because of developers scratching their own itch.

    Engineers want to solve problems. That's what we like to do. It is in our nature to do it. We don't need arcane legal incentives to innovate, just give us an interesting problem to attack, and we will eagerly go about devising a solution.

    This is precisely why the open source model gets results.

     

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  15.  
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    Anonymous Coward, Apr 15th, 2010 @ 9:52am

    Re: Re: Re:

    IIRC, Shockley was a named inventor on several patents directed to "transistors". In at least one instance he got into a "fight" with two persons at Bell Labs, with Shockley absolutely insisting that he be named on the patent.

     

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    NAMELESS.ONE, Apr 15th, 2010 @ 10:02am

    just keep on tlaking aobut it is all i have to say

    by time you Americans get it, it will be too late

     

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  17.  
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    greg.fenton (profile), Apr 15th, 2010 @ 10:04am

    Re:

    Sorry, which R&D lab is it that these fellows should travel to in order to see "the real world"? Where is this one concept of a "real world R&D lab" defined? What is a "real world R&D lab"?

     

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  18.  
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    Dark Helmet (profile), Apr 15th, 2010 @ 10:11am

    Re: just keep on tlaking aobut it is all i have to say

    I'm about as anti-war as can be, but I'm seriously considering starting a petition to invade Canada, just to shut you up....

     

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  19.  
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    Anonymous Coward, Apr 15th, 2010 @ 10:31am

    what if the underlying reason to have techdirt is wrong?

     

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  20.  
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    Anonymous Coward, Apr 15th, 2010 @ 10:34am

    Re:

    That doesn't even make sense. NAMELESS.ONE makes more sense than you and that's saying a lot.

     

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  21.  
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    Anonymous Coward, Apr 15th, 2010 @ 10:50am

    Re: Re:

    Even limiting their travel to just the labs at MIT would be an eye-opening experience.

    Then they could travel to business units that take the R&D workproduct, prototype it, productize it, support it, market it, and distribute it. During their travel they would also be well advised to mosey over to those responsible for financial matters, business plan development, etc.

    It is not an easy task to start at the beginning of the process and work their way to the end, but one that if done would surely have an influence of the "antiseptic" views so many in academia seem to have when it comes to the nitty gritty of developing a product.

     

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  22.  
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    Anonymous Coward, Apr 15th, 2010 @ 10:50am

    Re: Re:

    the question is valid. if copyright is actually okay and patents make sense why have techdirt? i think this post is a poor attempt at self justification. the masnick is really losing his grip.

     

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  23.  
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    Kirk (profile), Apr 15th, 2010 @ 11:01am

    Re:

    "BTW, there are many valid and useful reasons to file a patent application besides ultimately securing a patent..."

    These are all excellent justifications for applying for a patent. I have no beef with the peripheral objectives that you listed nor with the act of applying for a patent and I have no desire to see those mechanisms taken away. Thus, I would be greatly in favor of the patent office continuing to take patent applications as long as they never issued any patents.

     

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  24.  
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    Anonymous Coward, Apr 15th, 2010 @ 11:11am

    Dear AC:
    You say:

    It would be a pleasant surprise indeed if an academic would just once quit relying so slavishly on the published works of his/her colleagues, and instead take a trip over to an R&D lab and see how work is done in the world outside academia. Who knows? Perhaps they might learn that the foregoing processes are much more extensive and nuanced than their publications suggest.

    Actually, in addition to being an academic, I have a mechanical engineering degree, have been a professional product developer, have been in a lot of labs, have participated in startup firms - and even have patents! Feel free to gracefully recant your ad hominum argument at your leisure! :)

    Patents have numerous bad effects that tend to offset the fact that they incentivize SOME innovation investments. Take a look at Chapter 8, pp 112 - 115 in my 2005 book "Democratizing Innovation" for a brief overview of this. You can get a free download under a creative commons license from my MIT website http://mit.edu/evhippel/www/books.htm

     

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  25.  
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    Eric von Hippel, Apr 15th, 2010 @ 11:13am

    Whoops - forgot to post my name - comment 24 was actually by Eric von Hippel

     

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  26.  
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    heimp, Apr 15th, 2010 @ 11:25am

    Oh man, the drug companies would nuke us from space if we tried to improve the patent system...

     

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  27.  
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    Anonymous Coward, Apr 15th, 2010 @ 11:52am

    Re: Re: Re:

    The question is not vaild. Saying so does not make it so.

     

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  28.  
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    Nick Datesh (profile), Apr 15th, 2010 @ 12:03pm

    devil's bargain

    I think the devil's bargain in patents is the exchange of the monopoly for the disclosure of the invention.

     

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  29.  
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    Hephaestus (profile), Apr 15th, 2010 @ 12:17pm

    Re: Correlation != Causality

    "Because we did have patents throughout the industrial revolution, they must therefore have been critical in enabling the industrial revolution"

    I have to point out several minor things ....

    The invention of the wheel, bow, telescope, printing press, aqueducts, saddles for horses, the gun, the roman arch, boats, the metal forge, lost wax molding, the lathe, the drill, the drill press,

    oh and also

    The bronze age
    The Iron age

     

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  30.  
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    steve, Apr 15th, 2010 @ 12:18pm

    what did the inventor get

    I used to work at panasonic mobile and every day walked past this wall of patents, after a while I asked what did the inventor of that patent get, they told me nothing. Years of hard work and extra hours and nothing extra =[

    Some of these patents were so simple was laughable that they had been granted in the first place.

    This was the thing that turned me against patents many years ago

     

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  31.  
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    Crosbie Fitch (profile), Apr 15th, 2010 @ 12:22pm

    Re: Re: Correlation != Causality

    Incidentally, I should have said Correlation!=Causation.

    But, I get the idea you recognise innovation thrives on the liberty to copy and improve, not on the suspension of that liberty (by the privilege of patent).

     

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  32.  
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    Hephaestus (profile), Apr 15th, 2010 @ 12:24pm

    Re: Re: just keep on tlaking aobut it is all i have to say

    Why invade? Since you are up near the border just walk across if you get stopped the axe handle is your walking stick. I mean who is going to stop you the mounties?

     

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  33.  
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    Dark Helmet (profile), Apr 15th, 2010 @ 12:28pm

    Re: Re: Re: just keep on tlaking aobut it is all i have to say

    "Why invade? Since you are up near the border just walk across if you get stopped the axe handle is your walking stick. I mean who is going to stop you the mounties?"

    Simple. If I walk across the border and kill a Canadian, it's murder. If my government crosses the border and kills hundreds of them in Operation: It's About, Not Ah-Boat, Eh?, then it's justly patriotic.

    Didn't you pay attention to the last decade?

     

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  34.  
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    Hephaestus (profile), Apr 15th, 2010 @ 12:49pm

    Re:

    Actually they would have more of a problem if you set up an NGO and make its mission statement something along these lines.

    Bob International NGO (hereafter refered to as BINGO).

    The Charter of BINGO

    - The creation and distribtion of low cost, high quality pharmaceuticals for all people in all nations.
    - Research, development, and clinical trials of open source drugs.
    - The creation and distribution of pharmaceutical reasearch data, clinical data to accelerate nation state based drug trials and approval.
    - The sharing of all research data to speed drug development.
    - Creation of global standards for quality.
    - Creation of a global clearing house for reporting drug interaction and ill effects.
    - Opening all research data on all pharmaceuticals to the public for inspection and verification.

    -etc

    That is how you piss off the pharma industry and get them to try and nuke you from orbit, take the profits away.

     

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  35.  
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    Hephaestus (profile), Apr 15th, 2010 @ 12:53pm

    Re: Re: Re: Re: just keep on tlaking aobut it is all i have to say

    "Didn't you pay attention to the last decade?"

    Sure i did I just didnt want to get the US wrapped up in another quagmire like the middle east. Thinking on it, this is canada we are talking about they would surrender faster than the french. ;)

     

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  36.  
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    Steve R. (profile), Apr 15th, 2010 @ 1:54pm

    Anecdotal Proof

    The simple fact that people have innovated without patents constitutes an ample dynamic demonstration that the theory underlying the need for patents is flawed.

    While I can sympathize with the need to grant innovators and content producers with a limit privilege to derive monopoly rents, the "problem" with patent law today is that this limited privilege is morphing into a perceived perpetual property right covering ever greater scope.

    Naturally those in favor of so-called intellectual property produce distorted pseudo-scientific proof validating patents as legitimate. Regretfully the court system and the public overall have wrongly acquiesced to "intellectual property" as being real.

     

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  37.  
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    Darryl, Apr 15th, 2010 @ 2:02pm

    It's amazing how patents stifle innovation!!!!!!!

    Yes, look at the transistor, it's amazing just how much the advancement of silicon, solid state technology has been stifled by patents !!!.. I mean were still in the dark ages with silicon technology right.... oh wait !!!!..

    Lets compare the developments in hardware, and solid state technology to the state of the art in software.

    UNIX, and C programming languages come from the 60's and really lets face facts. Not that much has changed in the state of the art of software in the past 50 years.

    Only small incremental changes at best, software is still in the dark ages, the era of valves, glowing heaters, anodes and cathodes.

    And the advances in solid state technologies, how many transistors can be placed on a single silicon substrate these days. Billions, or millions of VERY HIGH SPEED solid state devices. That have to spend their entire lives using software that has progressed very little comparatively in the last 50 years..

    Lets look at some other technologies that have greated helped mankind. Say the drug industry, in the past 50 years massive progress in medical science has occured. Even with patents.. Go figure....

    What about motor cars, planes, TV's, videos, DVD's, radio, the list is endless, humans working within the law and creating inventions, and patents and advancing technology.

    If that was not the case, then the patent on the transistor would have stiffled innovation, and we would not see the massive progress that we have seen.

    So please, explain what area's of technology or human progress has been EVER stiffled by innovation ???

    The only area that is complaining about innovation, is an industry renounded for it's LACK of innovation. This is prabably due to the great willingness to just use stuff other people have allready come up with... Rather than use you're brain the advance the state of the art.

    Until the software industry moves into the 21st century, and starts to even come close to the advancements in the solid state and technology industries. You just look lame at trying to game the system. to get the right to take stuff you think is usefull...

     

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  38.  
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    Fentex, Apr 15th, 2010 @ 3:06pm

    Precision

    When reading phrases such as "actually quite convincing" distract me and make me feel the author is unsure and tentative about their point.

    I would like the superfluous words removed, and the statemet simplified, clarified and strengthened, thus:

    "this one approaches it from a different angle than ones we've seen before, and is actually quite convincing"

    ...might be better as...

    "this one approaches it from a different angle than ones we've seen before, and is convincing".

    I'm told by some this makes language more combative and aggressive. If so I still would prefer the clarity of expression and concentration on the idea.

     

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  39.  
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    Anonymous Coward, Apr 15th, 2010 @ 4:29pm

    Re: It's amazing how patents stifle innovation!!!!!!!

    Who are brain?

     

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  40.  
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    Anonymous Coward, Apr 15th, 2010 @ 5:11pm

    Re:

    There are "ad hominem" references, and then there are "AD HOMINEM" references. Mine was, if at all, the former, but in major part my concern was due to the implication one might garner from the article that collaborative innovation is relatively new vis a vis proprietary innovation. Perhaps one of the reasons for collaborative innovation to not be as well known is that antitrust law tends to disincentivize collaboration under certain circumstances.

    Moreover, the suggestion that somehow a patent is an "innovation stifler" is something that I have never seen in my many years of law practice. While I cannot dismiss the possibility that "stifling" may arise, it is a rare case indeed where one happens upon a true groundbreaking invention that has broad, generic overtones pertinent to one or more industries.

    Merely by way of suggestion, you and your co-author might wish to consider in the future adding yet another person to your team; namely, an individual (non-academic) who has "been there, done that" in all aspects pertaining to patent law across a wide variety of industries and clients of all sizes. I have studied many papers over my career that were directed to economic analyses of the patent system and draw negative inferences. While they invariably raise many good points, they all in my view suffer from the fact that analysis is made at a "macro" level, in contrast with what happens on a day to day basis within industry wherein decisions are made at a "micro" level. To overlook this distinction is to focus on the general to the exclusion of the specific.

     

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  41.  
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    Anonymous Coward, Apr 15th, 2010 @ 5:37pm

    Re:

    Curious why your book is licensed with derivative works limitation.

     

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  42.  
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    Anonymous Coward, Apr 15th, 2010 @ 8:47pm

    Re:

    "Bell Lab attorneys soon discovered that Shockley's field effect principle had been anticipated and patented in 1930 by Julius Lilienfeld"

    In other words, no one bothered to continue to work on the problem UNTIL after the patent expired. Typical example of how patents only hinder innovation. Those who originally got the patent neglected it and no one else was allowed to work on it until after the original patent expired.

     

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    Anonymous Coward, Apr 15th, 2010 @ 8:47pm

    Re: Re:

     

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  44.  
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    Anonymous Coward, Apr 15th, 2010 @ 8:48pm

    Re: Re:

    Chances are, if it weren't for the original patent, this thing would have been solved long before as others wouldn't be afraid to work on it in fear of infringement. More examples of why patents need to go away.

     

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  45.  
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    Anonymous Coward, Apr 15th, 2010 @ 8:51pm

    Re: Re: Open source software

    Which is nonsense, it shouldn't have to. Lets just eliminate patents and copywrongs altogether.

     

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  46.  
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    Anonymous Coward, Apr 15th, 2010 @ 8:55pm

    Re:

    "For example, there are situations that arise on occasion where one who has no need for a patent files an application anyway because of the beneficial effect it may have to deal with other areas of law that can inhibit free disclosure of an invention to the world at large."

    What? Why would someone pay money to file a patent for the sake of disclosure when all they have to do is post what they want to post on some blog or something. And if they want to prove that it's theirs they can digitally sign it and the blog will timestamp or whatever can timestamp it. I know, what a miracle.

    Other areas of law that can inhibit free disclosure? What the heck is that supposed to mean and how does that even relate to patents? You mean like trade secrets? If anything, wouldn't that be an argument against trade secrets and not an argument for patents.

    You make no sense, I'm not even sure what you're trying to say.

     

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  47.  
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    Anonymous Coward, Apr 15th, 2010 @ 8:59pm

    Re: Re: Re:

    No one is saying that developing a product is necessarily cheap, just that the development of products shouldn't be monopolized and that the acquisition of patents tend to restrict the public from voluntarily crowdfunding the development of a product because they have to worry on who has a patent on what and the legal dynamics will end up costing more than the cost of innovation. We're just saying that there are other ways to do it and patents aren't necessary and the evidence suggests that they cause much more harm than good. They also lead to plenty of fraud, as Adam Smith points out.

     

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  48.  
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    Anonymous Coward, Apr 15th, 2010 @ 9:20pm

    Re: Re: Re:

    If nothing else, to help people find the correct position and learn how to defend it. It helps you think about the criticisms of your position more thoroughly and develop a more compelling response and it helps you appreciate the justification for your position and it might help you truly learn why your position is correct and it may help you develop more specific positions within your broader position that may help us develop a better system and learn how to better implement the general principles of your position.

    Well, so far none of that happened as techdirt has been around for quite a while and IP maximists are still unable to justify the existence of IP. But if your position is correct at least we're encouraging you to find a way to justify it, and that in and of itself is good justification to have techdirt.

     

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  49.  
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    Anonymous Coward, Apr 15th, 2010 @ 9:28pm

    Re: devil's bargain

    Then explain why Microsoft has all sorts of patents yet their software is still closed source.

    I would much rather keep their inventions than to have a patent tell me what I can and can't independently invent. Saying that "the exchange of the monopoly for the disclosure of the invention" simply means that in return for them telling me what not to do I will not do what they told me not to do. When they tell me what not to do they must disclose to me what I can not do. That's not a bargain, it's an infringement of my rights.

     

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  50.  
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    Anonymous Coward, Apr 15th, 2010 @ 9:29pm

    Re: Re: devil's bargain

    errr. I would much rather have them keep their inventions * ...

     

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  51.  
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    Anonymous Coward, Apr 15th, 2010 @ 9:34pm

    Re: Re:

    "Perhaps one of the reasons for collaborative innovation to not be as well known is that antitrust law tends to disincentivize collaboration under certain circumstances."

    This makes no sense, patents themselves are a government sanctioned trust which defeats the alleged purpose of anti trust laws to begin with even moreso. Of course that's not to say that the reason you mention doesn't indeed stop collaborative innovation being that our broken legal system doesn't make any sense and might very well end up somehow using anti trust laws to stop it.

     

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  52.  
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    Anonymous Coward, Apr 15th, 2010 @ 9:43pm

    Re: It's amazing how patents stifle innovation!!!!!!!

    "Yes, look at the transistor, it's amazing just how much the advancement of silicon, solid state technology has been stifled by patents !!!"

    You mean like the fact that advancement didn't occur until after patents have expired and the fact that patents, by and large, have been unenforced in these areas and most technological companies either cross license them (which merely negates their purpose) or holds them for defensive purposes (which does the same thing).

    "UNIX, and C programming languages come from the 60's and really lets face facts. Not that much has changed in the state of the art of software in the past 50 years. "

    Java among many other improvements. What are you talking about, not much has changed, plenty has changed.

    "What about motor cars, planes, TV's, videos, DVD's, radio, the list is endless, humans working within the law and creating inventions, and patents and advancing technology."

    What about them. Face it, cars haven't changed much, they maybe a little more fuel efficient but not all that much more. Oh sure, they break down more and cost more to repair (thanks to broken laws that allow car manufacturers to artificially make the process more expensive by locking in their computers) but other than that I don't see all that much more improvement. and airplanes are basically the same.

    and sure, some things have improved, but no one is arguing that patents completely stop innovation.

     

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  53.  
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    wazoox, Apr 16th, 2010 @ 12:23am

    Re: Thoughts...

    > Doesn't the patent system smack of someone taking a messy, convoluted, nuanced problem and throwing an overly simplistic solution at it?

    Actually it's got the smell of ancient monopoly privileges granted by the King to chosen people. Unsurprisingly, because it's just a 18th century evolution of this medieval system.

     

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  54.  
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    Anonymous Coward, Apr 16th, 2010 @ 1:08am

    I only scanned the comments, so forgive me if I'm repeating what others have said, either explicitly or implicitly. Whether or not patents and copyrights stifle innovation is fine material for cocktail party/coffee break discussions, but ownership of intellectual property is about maintaining established income streams. Like practically everything else, it's all about the money. Those of you who read book seven of the Harry Potter series might remember Bill Weasley explaining to Harry that Goblins, who were known for their unique ability to work metals into jewelry and other valuable items, believed that everything they made was subject to lease, not sale. Consequently, when someone "bought" a Goblin-made item, while the purchaser might be allowed use of the item for life, he or she was not entitled to pass it on to his own her heirs unless further compensation was presented to the "true owner." We've yet to impose such restrictions on jewelry or other tangibles, but our copyright/patent laws certainly come pretty close to the Goblin concept.

     

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  55.  
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    Anonymous Coward, Apr 16th, 2010 @ 5:44am

    Re:

    "It would be a pleasant surprise indeed if an academic would just once quit relying so slavishly on the published works of his/her colleagues, and instead take a trip over to an R&D lab and see how work is done in the world outside academia."

    Oh yes, lets just ignore the massive evidence, scientists, and engineers that disagree with you, the ones who actually do the R&D, and instead pay attention to lawyers, lobbyists, politicians, and corporate administrators, those who unfairly benefit from these broken laws and have a conflict of interest in the matter. This makes perfect sense as their opinion would somehow be more valid.

    Many academics have worked in labs both in their academic career and in their private sector career. and why do you assume that academics have never stepped in a lab during their research? It's mostly those who do work in R&D labs and those who actually innovate that seem to be more likely to disagree with things like patents and it's those who simply litigate that want to maintain it.

     

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  56.  
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    Anonymous Coward, Apr 16th, 2010 @ 7:03am

    Re: Re:

    I suggest you read the sentence that follows the portion you quote for an example.

     

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  57.  
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    Anonymous Coward, Apr 16th, 2010 @ 8:12am

    Re: Re: Re:

    "These include, inter alia, overcoming limitations associated with the Export Administration Act and the Arms Export Control Act, two bodies of law that constrain free disclosure of certain activities relating to US national security interests pending review by either the Department of Commerce or the Department of State."

    Yes, this wouldn't be an argument for patents, they would be an argument against these kinds of laws. and to the extent that patents are used to disclose something against these laws wouldn't that simply mean that patents themselves break these laws? Unless you claim patents are somehow exempt from these censoring laws. But that makes no sense, that just means we have laws that force people to patent a good idea instead of just releasing it without patents and the effect is the same with respect to the serving the alleged purpose of these other laws. Instead, why not make it so that people can release such information without patents, wouldn't that make more sense? None of what you say is an argument for patents, it's an argument against these other censoring laws.

     

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  58.  
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    staff, Apr 16th, 2010 @ 8:17am

    opponents

    Ever notice how these opponents of the patent system have never actually used it?

    Patent reform is a fraud on America. It is patently un-American.
    Please see http://truereform.piausa.org/ for a different/opposing view on patent reform.

     

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  59.  
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    Ronald J Riley (profile), Apr 16th, 2010 @ 8:55am

    Shockley was a patented inventor.

    Typical TechDIRT drivel.

    It is normal for inventors to build on the work which proceeded them as happened in this case. The point of the patent system to to get people to teach their invention and that is what happened in this case.

    New companies are built all the time on the basis of their patent protected inventions. Look at how big thieving transnational corporations are being brought to their knees again and again by inventors. Hell, all they can do is whine about mythical trolls, than and buy KY by the case.

    Ronald J. Riley,

    Speaking only on my own behalf.
    President - www.PIAUSA.org - RJR at PIAUSA.org
    Executive Director - www.InventorEd.org - RJR at InvEd.org
    Senior Fellow - www.PatentPolicy.org
    President - Alliance for American Innovation
    Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
    Washington, DC
    Direct (810) 597-0194 - (202) 318-1595 - 9 am to 8 pm EST.

     

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  60.  
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    Anonymous Coward, Apr 16th, 2010 @ 9:02am

    Re: Shockley was a patented inventor.

    New companies are destroyed all the time on the basis of other's patent protected inventions. Look at how small thieving inventors are being brought to their knees again and again by transnational corporations. Hell, all they can do is whine about mythical trolls, than and buy KY by the case.

     

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  61.  
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    Ronald J Riley (profile), Apr 16th, 2010 @ 9:03am

    Patents are not issued for ideas

    A patent teaches how to solve a specific problem or range of problems.

    Ronald J. Riley,

    Speaking only on my own behalf.
    President - www.PIAUSA.org - RJR at PIAUSA.org
    Executive Director - www.InventorEd.org - RJR at InvEd.org
    Senior Fellow - www.PatentPolicy.org
    President - Alliance for American Innovation
    Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
    Washington, DC
    Direct (810) 597-0194 - (202) 318-1595 - 9 am to 8 pm EST.

     

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  62.  
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    Anonymous Coward, Apr 16th, 2010 @ 9:04am

    Re: opponents

    Ever notice how opponents of the patent system back up their arguments with facts and those for the patent system just make shit up?

     

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  63.  
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    Anonymous Coward, Apr 16th, 2010 @ 9:29am

    Re: Re: Re: Re:

    Patents are not exempt from these laws under US law. In fact, US patent law is structured such that it is consistent with export control laws. Every patent application that is filed is initially reviewed with export control laws in mind. Those that potentially implicate export controlled subject matter are then more closely reviewed by a board within the patent office that determines whether or not the subject matter is of such national security significance that its disclosure must be maintained under security controls.

    One advantage of using the patent system for inventions such as these is that the review occurs in a relatively quick fashion (no greater than 6 months), whereas conventional review by either the Department of Commerce or the Department of State (which relies heavily on the Department of Defense) almost invariably take significantly much more time.

     

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  64.  
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    Anonymous Coward, Apr 16th, 2010 @ 9:30am

    Re: Patents are not issued for ideas

    No, a patent simply limits my ability to solve a problem. No one looks to patents to solve problems, to the extent that they look for patents it's only to avoid infringement litigation.

     

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  65.  
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    Ronald J Riley (profile), Apr 16th, 2010 @ 10:26am

    Re: Re: Patents are not issued for ideas

    "No one looks to patents to solve problems"

    This is simply not true. When I produce an invention the very first thing I do is look at prior art. The reason is that I find that studying what others have invented tells me what the scope of my invention might be and even more important it suggests to me how to make the invention broader. Note I said suggests and not tells me but studying the art area kindles additional inventions.

    Ronald J. Riley,

    Speaking only on my own behalf.
    President - www.PIAUSA.org - RJR at PIAUSA.org
    Executive Director - www.InventorEd.org - RJR at InvEd.org
    Senior Fellow - www.PatentPolicy.org
    President - Alliance for American Innovation
    Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
    Washington, DC
    Direct (810) 597-0194 - (202) 318-1595 - 9 am to 8 pm EST.

     

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  66.  
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    Ronald J Riley (profile), Apr 16th, 2010 @ 10:57am

    Ability to solve a problem

    "No, a patent simply limits my ability to solve a problem."

    It sounds to me like your problem solving abilities are self limited, or maybe genetically limited.

    Ronald J. Riley,

    Speaking only on my own behalf.
    President - www.PIAUSA.org - RJR at PIAUSA.org
    Executive Director - www.InventorEd.org - RJR at InvEd.org
    Senior Fellow - www.PatentPolicy.org
    President - Alliance for American Innovation
    Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
    Washington, DC
    Direct (810) 597-0194 - (202) 318-1595 - 9 am to 8 pm EST.

     

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  67.  
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    Anonymous Coward, Apr 16th, 2010 @ 12:26pm

    Re: Ability to solve a problem

    "It sounds to me like your problem solving abilities are self limited, or maybe genetically limited."

    No, they are externally limited by patents.

     

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  68.  
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    Anonymous Coward, Apr 16th, 2010 @ 12:28pm

    Re: Re: Re: Patents are not issued for ideas

    "When I produce an invention the very first thing I do is look at prior art."

    Saying that people look to prior art is not the same as saying that people look to patents. People can look at prior art without looking to patents, and they do.

     

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  69.  
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    Kirk (profile), Apr 16th, 2010 @ 12:52pm

    Re: opponents

    Ever notice how those opposed to offshore tax shelters have never actually used one?

    I assume you meant to imply ignorance or the usual patent system defense of "they're just jealous."

    I have a simpler explanation:

    Why would someone use a system they oppose?
    (that was rhetorical, Lonnie)

     

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  70.  
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    Anonymous Coward, Apr 16th, 2010 @ 3:39pm

    Re: Re: Re: Patents are not issued for ideas

    "When I produce an invention the very first thing I do is look at prior art."

    Didn't we already establish that you're not an inventor, you're a fraud. You complain about Google's innovations when in fact those that started google and those that work for google are engineers and computer science majors and you're just an idiot who thinks that most people consider obvious is patent worthy.

    The fact is that anyone can sit around and come up with ideas all day long, as another poster has pointed out, it's cheap and easy. Now implementing an idea costs a lot more. You're nothing but a parasite to society, you think of all sorts of very obvious ideas that no one needs you for and you simply declare that you deserve a monopoly on them. The world would be a better place without people like you.

     

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  71.  
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    Anonymous Coward, Apr 16th, 2010 @ 3:41pm

    Re: Re: Re: Re: Patents are not issued for ideas

    ... and computer science post graduates * ...

    ... and you're just an idiot who thinks that things that most people consider obvious are patent worthy. *

     

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  72.  
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    Gene Cavanaugh, Apr 16th, 2010 @ 4:55pm

    Patent system

    As an IP attorney, I will make three points:
    1. The IP system (especially copyrights, then patents, then trademarks) is SERIOUSLY broken. However, every commentator seems to ignore WHY this is so.
    The answer is campaign financing. It takes a huge amount of money to mount a serious campaign, and nearly all candidates have to get it from people who are protecting their business models (which are often obsolete, BTW).
    2. Going back to what the Founding Fathers intended (or some similar model) could encourage innovation. We know that because before there was such a system, innovation was often crushed by people protecting their business models; such as by opening competing companies just to drive the innovators out of business (like Carnegie did several times).
    3. Knee-jerk "fixes" are always a bad idea; you build on proven bases. True, many people do not innovate for money (one of my clients fits in that category, though he may go into business with his idea, after he has the protection he feels he needs to start showing it around). However, simply tossing something against the wall to see if it sticks is a very, very bad idea. For one thing, it got us into Iraq.

     

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  73.  
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    BearGriz72 (profile), Apr 16th, 2010 @ 6:12pm

    Re: Shockley was a patented inventor.

    Anybody surprised by RJR's veiwpoint (and as usual lack of actual evidence)?....

    Again at the risk of repeating Myself...

    Re: RJR - My Thoughts
    If You Want More Information

    Please DNFTT

     

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  74.  
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    Anonymous Coward, Apr 17th, 2010 @ 6:30am

    and the OP demonstrates another problem with patents. One company can get a patent on something after merely spending a little bit of money on doing one clinical trial on it and then they can effectively lock everyone else out from funding clinical trials on that product merely because they have a patent on it and others are afraid of infringement when, had it not been for patents, plenty of clinical trials would have naturally been done by others. To me, this alone is good justification to abolish patents.

     

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  75.  
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    Graham Colclough, Apr 17th, 2010 @ 6:37am

    Whatever the patent system was put there for, it surely is retained by greedy folk, coaxed and bamboozled by the legal profession to try to ensure that if money is made, or after money is evident, it is shared by as few as possible.
    Not the open collaborative innovative system that we really need to solve the big challenges that face us in our over populated world today.

     

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  76.  
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    Phil, Apr 17th, 2010 @ 1:16pm

    Business Reqs are BS

    Regarding "solving your own problems", I agree 100%. That is the way to true passion in your work, and brings out the best in most of us. Reminded me of the old Steve Yegge's old post called "Business Requirements are Bull#&%!". Kind of long, and contains adult language, but he is right on the money with his overall idea: http://steve-yegge.blogspot.com/2008/08/business-requirements-are-bullshit.html

     

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  77.  
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    jon, Apr 17th, 2010 @ 5:00pm

    Don't patents protect small inventors? If I spend half my savings developing an innovation and then the other half bringing it to market, don't I deserve some protection?

    A big company (think robber baron) could swoop in and use their economies of scale and supply chain resources to wipe me out, and I'd have nothing to show for it.

    Hence, the next idea I have goes no where and society is worse off (in a general sense).

    I agree the patent system is flawed, but the original intent as correctly described by the TechDirt author: "the putative theory that innovation comes from a direct profit motive of a single corporation looking to sell the good in market, and for that to work, the company needs to take the initial invention and get temporary monopoly protection to keep out competitors in order to recoup the cost of research and development. " is still a valid intent.

    The original paper authors said this: "And openness, as we noted above, increases social welfare, other things equal."

    But the trouble is that all things are NOT equal. Big companies can squash innovative small guys.

     

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  78.  
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    Mike Masnick (profile), Apr 17th, 2010 @ 11:28pm

    Re: Re: Re:

    It is not an easy task to start at the beginning of the process and work their way to the end, but one that if done would surely have an influence of the "antiseptic" views so many in academia seem to have when it comes to the nitty gritty of developing a product.

    So, clearly, then, you agree with my view (having brought many new products to market). And also you agree with the views of Bessen, since he spent many years in industry and brought many successful products to market.

    In fact, many of the studies we cite were done by "academics" who actually spent a great deal of time in industry and saw the problems of the patent system first hand.

    And, clearly, you agree with the author of this study, Eric von Hippel, who not only founded a company, but also has multiple patents to his name, that were used in the development of that company.

    So I find it odd that you would suggest that this is just the view of "academics" with no experience in the field. Even the simplest bit of research would prove you dead wrong.

     

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  79.  
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    Mike Masnick (profile), Apr 17th, 2010 @ 11:33pm

    Re: Re:

    Moreover, the suggestion that somehow a patent is an "innovation stifler" is something that I have never seen in my many years of law practice.

    Wait, wait, wait. Weren't you just the one saying that people should only comment on this issue if they had experience inventing products in the R&D lab. Yet, you admit that you are just a lawyer.

    So doesn't that mean that your comments here are invalid?

    While I cannot dismiss the possibility that "stifling" may arise, it is a rare case indeed where one happens upon a true groundbreaking invention that has broad, generic overtones pertinent to one or more industries.

    Based on your personal experience, suckling from the system to make money for yourself? Somehow, I prefer the actual evidence as found in over two dozen studies.

    You prefer weak anecdotes from a single party who abuses the system to his own advantage? Odd.

     

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  80.  
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    Mike Masnick (profile), Apr 17th, 2010 @ 11:35pm

    Re: opponents

    Ever notice how these opponents of the patent system have never actually used it?


    Uh, you did notice that the main author of the paper does, in fact, hold a bunch of patents.

     

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  81.  
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    Mike Masnick (profile), Apr 17th, 2010 @ 11:38pm

    Re:

    Don't patents protect small inventors? If I spend half my savings developing an innovation and then the other half bringing it to market, don't I deserve some protection?

    That's the story that's been told, but there is little evidence to show that it happens regularly. Truly innovative products are "protected" in being first to market and building up a reputation. Just "copying" a product -- even if done by a big company -- usually isn't enough.

    For example: IBM tried to "copy" Microsoft in the OS game and failed, despite massive differences in size. Microsoft tried to "copy" Google in the search game and failed, despite Microsoft having a ton more cash and being much bigger at the time it first entered the market.

    Copying by a big company usually isn't enough.

    A big company (think robber baron) could swoop in and use their economies of scale and supply chain resources to wipe me out, and I'd have nothing to show for it.

    And yet that rarely happens. But, if it does, it's called competition. If you can't compete in the market, why should you make the overall market worse off?

     

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  82.  
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    Anonymous Coward, Apr 18th, 2010 @ 9:26am

    Re: Re: Re: Re:

    Perhaps the "worst" academics who fall prey to "the system is broken and in dire need of repair" are those within law, almost (not all, but almost all) who have neither practiced this area of law nor stepped foot in a lab to follow the process that begins with the crafting of an invention and proceeds to the point where the invention is ultimately placed into a form where it is introduced into the marketplace (where it stands and either succeedes or fails).

    While there are obviously some academics who have experience with the above process, including a few of those upon whose publications you rely, my review of their CVs (which I do review each time I read the name of an author), they are clearly in the distinct minority. I daresay that such authors are in the distinct minority.

    My experience is not merely anecdotal as you may believe. My pre-law education in aeronautical and aerospace engineering (both undergraduate and graduate...USNA and USNPGS), with a long stint as a naval aviator. I entered the legal profession twelve years later. I have over the years of law practice talked about issues pertinent to the article with countless colleagues who are widely, geographically dispersed, who likewise have extensive backgrounds in R&D and all other facets of product development, and whose views almost invariably mirror my observations. Like me, they are not "just lawyers".

    As a lawyer I have spent countless hours working with R&D activities and studying what it involves and across a wide spectrum of technologies, ranging from what some would call the mundame to others that are classically cutting edge, high tech. I have done likewise with those charged with taking work from the R&D labs and placing such work in condition for manufacturing (what I term "productization"), the product support groups who craft the equipment needed to affect manufacture, the groups tasked with the responsibility of creating special test and other equipment needed for post-sale maintenance support, those tasked with marketing the resulting products, those tasked with oversight of the financials, as well as those tasked with crafting long range planning that in large measure look to the future for identifying upcoming customer needs that will serve as the guide for the type of R&D that will need to be performed in order to meet the future needs of customers.

    Suffice it to say that quite unlike most colleagues who tend to sit in their offices and wait to be contacted, I see no useful purpose served by such limited activity. I have always been of the mindset that the less time spent in an office, and the more time spent in close association with the actual "doers" is time far more productively spent.

    Re startups, in my many years of service within the defense industry I had occasion to note many, many technical advances that had application far beyond merely defense products. After several years of pulling my hair out over the myopic views of many within the industry I was able to finally convince them that their financial and business interests would be beneficially served by the introduction of such advances into non-defense applications. From this resulted the formation of a select group tasked with spinning out the technology to companies engaged in the manufacture and sale of products within the commercial marketplace. As one of the very few comprising this group, I oversaw the creation of startups into which technology was transferred, technical support in the form of contracted R&D, know how and show how was provided, broad rights granted, the initial startup management was identified and hired from commercial companies recognized as leaders in the field, VC investors were identified and brought on board, etc.

    While completely counterintuitive and anathema to virtually all of my colleagues, I was successful in convincing executive management of the technology provider that it must, if the startup is to succeed, resist the urge to insinuate itself into the operation of the startup and assume a totally hands off approach. Not only that, but I was also able to impress upon them that equity positions, which I only seldom recommended, were to be treated as merely passive investments.

    As a result of these endeavors approximately 8-10 startups were created throughout the country. Of these about half still operate as independent entities, with the remainder having been acquired by other commercial companies. While I am not at liberty to identify the names of these startups, I believe it is likely you are familar with several of them, and particularly those working in the field of MMW, IR, image and signal processing, cellular communications, and advanced metallurgy.

    Without a doubt you have heard repeatedly the names of military products associated with these and other technologies. All I did was recognize that these technologies had far wider applicability, that the company would never move in the direction of commercial applications, and that the transfer of these technologies to others who could benefit from these technologies within the commercial sector was an endeavor worth pursuing.

    If I have one regret it is that many of the most promising internal developments having application in the commercial sector were inextricably linked to major national security concerns such that their commercial promise will not be realized for some years to come. Hopefully, this will be sooner than later, for many of these will serve as important building blocks for a wide range of new products that will almost immediately redefine state-of-the-art.

    If nothing else, I hope you at least take away from the above that when dealing with me you are not dealing with an "IP maximist" as so many here seem want to associate with anyone who has ever dealt with IP law. You are dealing with one who adheres to be belief that the law is but a tool that should be used, if at all, judiciously and sparingly.

     

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  83.  
    identicon
    Ex Pat, Apr 18th, 2010 @ 11:42am

    Patents

    Patents are not perfect, but patent applications are necessary to give investors the incentive to invest money in an invention. Otherwise we have to hope that our present group of large companies will innovate. We know that most of the time they use their money to keep their competitors out of their market. If they innovate at all, they are the exception.

    Patents are the life blood of the small inventors.

     

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  84.  
    identicon
    Roger Toennis, Apr 18th, 2010 @ 3:34pm

    Re: It's amazing how patents stifle innovation!!!!!!!

    Bravo! Agree completely. The SW industry is pathetic actually making itself better at producing SW.

    The patent system absolutely has flaws. We should fix them and "not throw the baby out with the bathwater".

    I believe there is truth in your assertion that those that don't want to fix the system, and instead want to just throw it out wholesale, are intellectually lazy and not in fact innovators.

    One has to wonder if somewhere deep in the subconscious of "patent haters" they are drooling at the thought of being able to run around stealing other peoples ideas for their own benefit.

    Maybe since they know they aren't really innovators themselves they aren't worried about anyone stealing their ideas.

    The fact remains if a "small guy" comes up with something truly innovative and tries to get it going without some from of protection from big company vultures and patent troll vultures and non-innovative copycats he is going to get screwed as all three start stealing the idea form that small guy.

    All this BS about "productive collaboration" is horsesh**. IF a rich company or VC or troll sees a great idea out there they will throw tons of money at screwing the guy who wants to break into being an entrepreneur/innovator for the first time.

    Once you already have tons of money and can throw it at crushing the initial innovator because he is cash poor you, OF COURSE, are going to hate patents.

    The only people set to benefit from having no patent protection at all are people who have the hard cash to crush the little guy inventors before they can get going enough to build a business around their innovation.

    Classic greed. The rich wanting to get richer.

     

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  85.  
    icon
    Mike Masnick (profile), Apr 18th, 2010 @ 5:32pm

    Re: Patents

    Patents are not perfect, but patent applications are necessary to give investors the incentive to invest money in an invention.

    In theory. Except, in reality, the evidence suggests that's not true at all -- which was the whole point of this article, which you don't even bother to refute. That seems odd. Why make a blind assertion when the evidence says otherwise?

    Otherwise we have to hope that our present group of large companies will innovate.

    Again, the evidence suggests otherwise. If you look at industries in markets without patents vs. the same industries with patents, you find MORE companies and MORE new entrants in those without patents. Why? Because without patents the barriers to entry are lower, and there is more ability for new companies to enter the space. On top of that, because there are no gov't granted monopolies, the companies in the market need to KEEP innovating, rather than resting on the laurels of a single patent and holding back the rest of the market.

    Patents are the life blood of the small inventors.


    Again, the actual evidence suggests otherwise. If you have evidence to support your position, please present it. Otherwise, it's difficult to take you seriously.

     

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  86.  
    icon
    Mike Masnick (profile), Apr 18th, 2010 @ 5:32pm

    Re: Re: Re: Re: Re:

    I didn't ask for your resume.

    You falsely claimed that Eric had no actual experience and wat just an "academic." You were wrong.

    That was where you were supposed to apologize and admit you were wrong.

     

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  87.  
    identicon
    Anonymous Coward, Apr 18th, 2010 @ 6:52pm

    Re: Re: It's amazing how patents stifle innovation!!!!!!!

    "I believe there is truth in your assertion that those that don't want to fix the system, and instead want to just throw it out wholesale, are intellectually lazy and not in fact innovators."

    So those who agree with you are the innovators but those who disagree with you aren't? Wow, great logic.

    "One has to wonder if somewhere deep in the subconscious of "patent haters" they are drooling at the thought of being able to run around stealing other peoples ideas for their own benefit."

    It's not stealing, it's infringement. and to call it stealing is ignorant at best and most likely a result of intentional dishonesty. Why should we trust your moral judgment? and it's usually patent holders that fail to innovate, being that most patented products don't even make it to market. They just sit there either for defensive purposes, to sue anyone who does manage to innovate, for cross licensing purposes, or to prevent competitors from introducing a competitive product to market. That's not innovation, that's a waste of resources.

    "Maybe since they know they aren't really innovators themselves they aren't worried about anyone stealing their ideas."

    Or maybe it's that patent holders just want to make money off of the work of others by coming up with an idea (cheap, since anyone can sit around all day and come up with ideas) and wrongfully suing those who actually implement the idea.

    "The fact remains if a "small guy" comes up with something truly innovative and tries to get it going without some from of protection from big company vultures and patent troll vultures and non-innovative copycats he is going to get screwed as all three start stealing the idea form that small guy."

    Please don't confuse fact with unsupported made up speculation.

    "All this BS about "productive collaboration" is horsesh**. IF a rich company or VC or troll sees a great idea out there they will throw tons of money at screwing the guy who wants to break into being an entrepreneur/innovator for the first time.

    Once you already have tons of money and can throw it at crushing the initial innovator because he is cash poor you, OF COURSE, are going to hate patents.


    The only people set to benefit from having no patent protection at all are people who have the hard cash to crush the little guy inventors before they can get going enough to build a business around their innovation. "

    Except that patents seem to be wanted most by big corporations, especially large pharmaceutical corporations. I hardly trust the rich guy to tell everyone else what's in their best interest.

    and society also benefits a lot from the lack of patents just as well, being that now anyone can enter the market and produce driving prices down. It leads to more competition or at least the threat of competition upon a corporation ripping off customers. and much of the reason why we have these huge corporations that are too big to fail to begin with is because they have large patent portfolios, many of which cross license patents with each other, and they use their portfolios to keep newcomers out of the market.

    "Classic greed. The rich wanting to get richer."

    I agree, the rich people who want patents are selfish.

     

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  88.  
    identicon
    Anonymous Coward, Apr 19th, 2010 @ 7:11am

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

    1. You did not get my "resume" (actually, CV). You did a get a response to your dismissive "you are just a lawyer" remark.

    2. The author was involved in a private sector business many, many years ago. He even secured at startup a few patents (which I have read). After 3 or so years (plus about a 3 year stint as a consultant) he shifted gears from the private sector to academia, and has remained in academia ever since. My comment was directed to his current professional status, which has been academia since the early 70's (I flew P-3's out of Moffett in the early to mid-70's. That experience does not now translate into current expertise.)

     

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  89.  
    identicon
    Stephen Moratti, Apr 20th, 2010 @ 6:36pm

    Re: Re: Patents

    Reading the paper, it is clear that there are many different markets, products, innovators, etc. One point of the paper is that one size does not fit all. It may well be the patent system does not work well in one area (e.g. software) but does in another (pharmaceuticals).

    I am involved in a university start up at present. we are trying to raise 1.5 M for clinical trials and tox studies (just to clear phase 1 and 2). Without patent protection no investor would look twice.

     

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  90.  
    icon
    Ronald J Riley (profile), Apr 25th, 2010 @ 5:40pm

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

    When it comes to invention and the economics I find it hard to imagine anyone more wrong than Mike Masnick.

    Ronald J. Riley,

    Speaking only on my own behalf.
    President - www.PIAUSA.org - RJR at PIAUSA.org
    Executive Director - www.InventorEd.org - RJR at InvEd.org
    Senior Fellow - www.PatentPolicy.org
    President - Alliance for American Innovation
    Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
    Washington, DC
    Direct (810) 597-0194 - (202) 318-1595 - 9 am to 8 pm EST.

     

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  91.  
    icon
    Ronald J Riley (profile), Apr 25th, 2010 @ 5:43pm

    Re: Re:

    "What? Why would someone pay money to file a patent for the sake of disclosure"

    Because most disclosures are not enabling and would have no effect on the ability to get a patent.

    Ronald J. Riley,

    Speaking only on my own behalf.
    President - www.PIAUSA.org - RJR at PIAUSA.org
    Executive Director - www.InventorEd.org - RJR at InvEd.org
    Senior Fellow - www.PatentPolicy.org
    President - Alliance for American Innovation
    Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
    Washington, DC
    Direct (810) 597-0194 - (202) 318-1595 - 9 am to 8 pm EST.

     

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

  92.  
    icon
    Ronald J Riley (profile), Apr 25th, 2010 @ 5:48pm

    Re: Re: Re:

    "Wait, wait, wait. Weren't you just the one saying that people should only comment on this issue if they had experience inventing products in the R&D lab. Yet, you admit that you are just a lawyer."

    I would say that in most cases patent practioners are quite capable of producing inventions. They are not "just a lawyer".

    Ronald J. Riley,

    Speaking only on my own behalf.
    President - www.PIAUSA.org - RJR at PIAUSA.org
    Executive Director - www.InventorEd.org - RJR at InvEd.org
    Senior Fellow - www.PatentPolicy.org
    President - Alliance for American Innovation
    Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
    Washington, DC
    Direct (810) 597-0194 - (202) 318-1595 - 9 am to 8 pm EST.

     

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

  93.  
    icon
    Ronald J Riley (profile), Apr 25th, 2010 @ 6:01pm

    Re: Re: Patents

    Mike Masnick has never presented even one bit of credible evidence. Ronald J. Riley, Speaking only on my own behalf. President - www.PIAUSA.org - RJR at PIAUSA.org Executive Director - www.InventorEd.org - RJR at InvEd.org Senior Fellow - www.PatentPolicy.org President - Alliance for American Innovation Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel Washington, DC Direct (810) 597-0194 - (202) 318-1595 - 9 am to 8 pm EST.

     

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  94.  
    icon
    Mike Masnick (profile), Apr 25th, 2010 @ 8:26pm

    Re: Re: Re: Patents

    Mike Masnick has never presented even one bit of credible evidence

    I find this to be QUITE an amusing statement, considering that it comes on a post that's actually presenting incredibly credible evidence (this is somewhere around study number 40 that we've presented as such) AND because I've been asking Ronald to present a SINGLE study that presents his viewpoint and he has failed to do so.

    Quite curious.

    Ronald? We're waiting...

     

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  95.  
    identicon
    jon, Apr 27th, 2010 @ 5:22am

    you never hear about small inventors

    I think one reason you don't hear about small inventors getting their innovation stolen by big companies is because they are small guys and not news-worthy. If you don't hear about these cases, then it is easy to assume they don't happen.

    If you site examples of large company copying another large company's idea and failing, then you don't really address the point that small innovators are protected by patents.

    I think we need more info about the effect of patents on innovation within start-ups and smaller companies before a judgment can be made about the protection of innovation, or hindrance to innovation, that patents give. Not all industries are the same, and the cost of development is large in some fields.

    Re: The comment about competition - "And yet that rarely happens. But, if it does, it's called competition. If you can't compete in the market, why should you make the overall market worse off?"

    Competition is good if everyone starts at the same place, but if I invest a few hundred thousand (or a few million if I get financial backers), and then someone larger comes along and takes the idea, then they got something for free. Not fair competition is it?

    This recently happened with a small company that I developed a product for (as an outside consultant). They spent 2 years and about 800K USD developing, testing, and passing regulatory requirements for a chemical that did a fine job of solving a problem in their industry.

    They then said, "hey, maybe other people need this problem solved" and they were right. They started selling it. They attracted attention. A large international company in the space (whose name everyone knows if you work in this area), decided to come out with their own "version" and now it is a question for the legal courts. However, in the court of public opinion, everyone in the industry assumes the big company innovated the product and WE are the cheats.

    Why does this small company have even a prayer against the big company? Because they filed for a patent 2 years before the big company ever heard of this idea.

    The patent was recently allowed (my 20th ^_^) so the small company has a chance to protect their investment (if they can afford the legal fees that are inconsequential to the large company).

    If you haven't tried to innovate something and bring it to market, it's hard to understand how easy a big company can just take what you've developed and run with it.

    "Thank you very much!" - said the big company to the small one.

     

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  96.  
    identicon
    Stella, Jul 12th, 2010 @ 12:18pm

    Re: Open source software

    Hi Mike
    No one really said that NOTHING happens when we have a monopoly and/or patents in action. Our author just said that these things hinder innovation, because the innovator rarely sees a benefit within the current system.

    "Of course, no one is saying that producer-based innovation (company inventing to sell on the market) doesn't occur or won't continue to occur. But it is an open policy question as to whether or not our innovation policies should favor that model over other models -- when evidence suggests that a significant amount of innovation occurs in these other ways -- and that amount is growing rapidly. "

     

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  97.  
    identicon
    Stella, Jul 12th, 2010 @ 12:38pm

    Re: Re: Re: Re:

    Ronald
    I don't know you man, and I have no desire to offend, but your comments and questions all sound really really loaded with nothing to back them up.

    Here's the thing in principle. Information should be free. Inventions are here because people can make life easier (or in the case of meds, STAY ALIVE!) with them. If we get rid of the money game being played, that will purify the market in the sense that we will be left with those who are in it because THEY LOVE HELPING THE WORLD THROUGH CREATIVITY and not because they are getting paid.

    It's kind of like how music is getting downloaded for free and artists are getting pissed about it. "That's my 'intellectual property'! Well I am a musician with an album coming out. Though the album will be released in stores for those who want the physical disk and cover art, I hope people download my stuff for free. That way, the people who need it get it, and the ones who have a little money to support the project can donate it.

    We don't need property, intellectual or otherwise, if we SHARE the fruits of our respective preferred labors. Call me naive to envision such freedom as being possible, but whether we say we can or we can't, we're right.

    Oh and we don't need transitional socialism to get there, either. Pretty exciting, I think.

     

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  98.  
    identicon
    Stella, Jul 12th, 2010 @ 12:41pm

    Re: Re: Re: Re:

    Capable? Prove it. Go and do it. You will have more experience to speak with instead of just making claims that you say you "could back up if you wanted to", more or less.

     

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  99.  
    identicon
    Norm Margolus, Jul 3rd, 2011 @ 10:19am

    how to get rid of obvious patents

    I think the biggest problem with patents is that they often give a monopoly for ideas that are obvious and are reinvented independently many times as the need arises. In this case patents don't promote innovation, they only restrict it, and constitute a tax on further progress. So I think that the most urgent reform is to get rid of obvious patents. Then different models of innovation can more freely compete: when open source makes more sense, it will win.

    One suggestion for getting rid of obvious patents would be to put ideas in the public domain if there is an approximate tie in inventing them -- this proves they were obvious. For example, suppose that patent applications are kept secret for a year, and if more than one party tries to patent the same invention within that secrecy window, the invention is put in the public domain. This suggestion has the side benefit that ideas for which time to market is more important than monopoly will all end up in the public domain, making the hottest ideas free and open.

     

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  100.  
    identicon
    Alpheus, Sep 1st, 2011 @ 8:45am

    Re: It's amazing how patents stifle innovation!!!!!!!

    Yes, it's amazing how little progress has happened in the Software Industry. We're still stuck with 50-year-old technology (to some extent, true, but to some extent, NOT!)...if only we had the ability to patent software, then we can have some Progress!

    Oh, wait. We've had software patents for 30 YEARS. And yet, we're STILL stuck with 50-year-old technology!

    As for transistors: you need to make the case that patents are crucial for their innovation. It so happens that this is an industry that changes so much, though, that by the time a patent is granted, it is out-dated. Patents are only sought as a means of defense against patent trolls and competitors.

    As for trying to advance the state in Software, go use the Linux kernel. I'm reading up on it right now ("Linux Kernel Development, Third Edition" by Robert Love) and am learning about the fascinating innards of that work of art, and how it's changed over time. It's a non-trivial task to build something from the ground up, though, so it may be a while before we get your "innovative" operating system!

    And one last comment: what of the Transistor Patent? The three people named on the Bell Labs patent got nothing for it! (There's some REAL incentive right there for you!) Even Bell Labs, due to fears of being sued as a monopoly, did almost NOTHING with the patent themselves; they just sold it to Sony. And I'm CONFIDENT (yeah, right) that all those computer companies in Silicon Valley were just ITCHING to respect Sony's patent, as they forged ahead in the computer industry.

    (As for stifling innovation in technology: American Aviation was set back twenty years due to the Wright Brother's patent; Car companies had to pay royalties to some dweeb patent-filer who created a "submarine patent"[1]; and while the workers on the Linux kernel are happily innovating, they do so under the shadow that someday, something they are working on will later be patented, and then they'll be sued for THEIR OWN INNOVATIVE work--and because they can't afford the lawsuit, they'll just have to settle the case, rather than bust the patent.)

    [1] For explanations of these, see "Against Intellectual Monopoly", available online, because the writers are against copyright.

     

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  101.  
    identicon
    Alpheus, Sep 1st, 2011 @ 8:50am

    Re: Re: Ability to solve a problem

    John Moses Browning, when developing the Browning Hi-Power, had to work around *his own patents* for the M1911, because he didn't own them. Ironically, when the patents expired, the French manufacturers of the gun just re-instated the old mechanisms.

    So, yeah, sometimes patents get in the way of innovation.

     

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  102.  
    identicon
    Alpheus, Sep 1st, 2011 @ 9:07am

    Re:

    The idea that patents "protect" small inventors is hilarious. With the the help of the patent system, RCA crushed Philo T. Farnsworth (the inventor of the TV)--who just wanted a little shop to make TVs--and this crushing happened, even despite Farnsworth winning in court.

    Then there's the case of Barry(?) Kearns, who invented intermittent wiper blades. He sort-of won his case against GM, Ford, et al...after destroying his marriage, and going broke in the process. If I understand correctly, he wasn't able to appeal, because he didn't have the $12 million needed to pursue the case in courts. (I could be wrong about that, though.)

    And these are two examples that are often paraded by patent proponents as examples of how well the Patent System WORKS! If this is a "working" patent system, I'd *hate* to see one that's "broken"!

     

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  103.  
    identicon
    Alpheus, Sep 1st, 2011 @ 9:17am

    Re: you never hear about small inventors

    And just how well is this company doing WITH patents? You brushed off "if they could afford the legal fees" as if they are nothing; unfortunately, patent court costs are nothing to sneeze at--$3 million, *on average*, for the typical case.

    Has "the court of public opinion" changed their minds because of this lawsuit? Or are they even paying attention?

    In a previous comment, I mentioned Farnsworth and Kearns...and this little story seems to be going in the direction of those inventors...that is, they will likely be crushed by this big company AND the patent system, even if in the end, they "win".

    If this is what the patent system promises, I think I'd rather take my chances in the Free Market--where a big corporation can "steal" my idea, but not necessarily my customers--thank you very much.

     

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  104.  
    identicon
    Alpheus, Sep 1st, 2011 @ 9:22am

    Mathematicians don't need no stinking patents

    As a mathematician, I find it funny that people think patents are the be-all and end-all for innovation. I can invest years in research, and have nothing but a paper to show for it, and if the paper is important enough, it will be photocopied by graduate students and professors for years to come. And those graduate students and professors will have the *gall* to derive results from my paper, *without* monetary compensation!

    Furthermore, I won't be getting compensation from the expensive journal that publishes my paper--indeed, some journals are considering charging *the authors* a fee to publish the paper.

    Yet, in this environment, mathematical research marches on.

     

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


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