Chief Patent Judge Feigns Ignorance Of How Often Patents Are Used To Hinder Innovation

from the willful-ignorance-or-scary-ignorance? dept

Law professor Doug Lichtman's latest "IP Colloquium" podcast is an interview with Judge Randall Rader, who's the chief Judge of CAFC, the appeals court that handles most patent cases. Rader is known for being outspoken and opinionated (but also very, very smart), so it's always fascinating to hear what he has to say. The first part of the interview is interesting from a purely procedural standpoint, as Rader goes through the process by which the CAFC makes decisions, including the fact that nearly every case is decided almost immediately after the oral hearings. It sounds like they almost never feel the need to sleep on a decision. However, the latter part of the interview is where things get really interesting. While Lichtman and I tend to disagree over copyright issues, we find a lot more common ground on patent issues, with Lichtman pointing out the harm that patents often seem to do to innovation, as well as questioning why independent invention isn't a sign of obviousness.

Rader's responses are thoughtful, and interesting, but I feel that he makes some assumptions that don't have much support, and makes a few other statements that simply are not an accurate representation of reality. Rader starts out by suggesting that it's simply impossible for any tech firm to "keep up" with technology innovation today (partially true), and the only way to do that is through cooperation (true) and that patents "facilitate" that cooperation (sometimes, but rarely, true). He paints this idealistic, and not very accurate, picture of innovation occurring thusly:
In order to really see the future, you've got to bring together some kid writing software in Bangalore, with a laboratory professor in Chengdu, with a university researcher in Kyoto and a startup company in Boston. And they each have a piece of the puzzle which may be "Windows 7," or whatever the future of technology is, but no single laboratory, no single company, anymore invents the future.
Now, to some extent that's true. No single company does invent the future, but I actually see that as a pretty strong argument against patent protection in most cases, since patents in situations like that now create transaction costs that hinder innovations that advance the market. It's putting a toll on innovation, which can be much more efficiently handled in the actual marketplace.
They, if they're smart, coordinate, and cooperate with the world to achieve that future, and what is it that facilitates that? It's the patent system!
Extremely idealized and not at all accurate in so many cases these days. Instead, what's happening is that many folks are putting all of the puzzle pieces together themselves, and don't need to work with all those other folks. But then someone else shows up, after the puzzle is completed saying "I own this half of the puzzle thanks to this patent, now pay me." And, making matters even worse is often you get lots of companies showing up, all claiming to "own" large chunks of the puzzle (often in overlapping ways!). And the original puzzle was usually put together without them at all. It's not about cooperating and coordinating at all. It's about taxing innovation. Lichtman tries to make this point, segmenting patent situations into two buckets, one of which is positive (sharing useful information among industry players so that everyone benefits) and one is not (someone showing up at your door demanding you pay them for something you came up with yourself). Unfortunately, Lichtman chooses to label that second bucket "licensing," which I think throws Rader off, since Rader suggests that there aren't two buckets at all and licensing is part of the key process of that coordination.

Rader does admit that there are cases where companies feel compelled to pay up because the cost of "licensing" is more than the cost of fighting the battle in court. He actually calls it "a form of systematic blackmail" -- and he says he's trying, in his role, to decrease the cost of patent litigation. He suggests a plan to limit discovery for this purpose, which he admits would require a big change in policy (and one that I have trouble believing would actually get anywhere). But that only discusses one small part of the problem, and does not cover many, many, many innovation-hindering situations, especially in cases where there's independent invention or patent thickets. Lichtman pushes back again, even pointing to situations like Intellectual Ventures showing up at your door with tons of patents.

Rader's response is really bothersome and ignores the reality. He first brushes it off, by calling it "arguing by anecdote," but this is a very real situation that happens all the time. He then says he can take the "same sort of factual situation and put a slight twist on it," and everyone would be fine with it:
"Say you have an Intellectual Ventures-type of entity, who has done the additional work of bringing together the Bangalore kid with the Chengdu university and the Boston startup. They've brought them together. And the way you bring them together, of course, is to purchase the intellectual property and put it into a package that presents an innovative vision for the future. Don't they deserve their share of societal compensation for doing that job -- of seeing the way to solve these problems is to bring the Bangalore kid together with the Chengdu professor and the Boston startup. And the answer, of course, is yes."
Except, the answer is not "of course" yes. In fact, the answer quite frequently should be no. First, the hypothetical here again totally ignores what Lichtman asked: a situation where no one is "bringing together" these disperse folks and "putting things into a package that presents an innovative vision of the future." It's a situation where a bunch of folks are successfully building things independently, and then suddenly someone knocks on their door, doesn't add any value to what's been done, but claims a right to money. That's the situation that happens all the time in the tech industry today, and it's a shame that Rader seems unwilling to admit that. I'm assuming he knows that happens all the time (thinking otherwise would be really scary), so I'm not sure if he's being willfully obtuse here in response to Lichtman, or if he's decided that as a judge he can't admit that the system is broken in this manner.

Lichtman then brings up effectively the same point from a different angle, making the "independent invention" argument, and noting that the FTC is considering whether more weight should be given to independent invention as a defense or as proof of obviousness. Judge Rader here gets noticeably snippy, and responds: "Then the FTC needs to read a couple of Federal Circuit opinions where we've already said that." This leaves Lichtman a bit flabbergasted, and Rader clarifies... with a statement chock full of caveats: "There's a couple of secondary consideration opinions where we've said, yes, independent invention is a... additional factor to be considered as evidence of obviousness."

Lichtman doesn't follow through and ask for details (such as which cases), which is a bit disappointing. There are, indeed, a few out there, including one from a couple months ago (in a decision written by Rader -- Geo M Martin v. Alliance Machine), but they're very limited, and are really about prior art -- not simultaneous independent invention by multiple parties. If it were really true that the court really considered independent invention, then we wouldn't have so, so, so many cases involving patents that the accused party was totally unaware of.

Two other points:
  • Lichtman points out the ridiculousness of a single product being covered by thousands of patents, pointing out that this also makes the "value" of each patent impossible to determine in any reasonable manner. Rader again either mis- or re-interprets the discussion (slightly sarcastically) to say that this just proves that some patents are more valuable than others. Uh, yeah, that's not the point Lichtman was making.

    Rader then points out (accurately!) that most innovation is incremental, but then says "we can't afford to write off those incremental advances." But that is, once again, ignoring reality. No one is "writing off" those incremental advances. What we're saying is you incorporate them into products and let the products compete in the marketplace rather than rewarding each increment individually with a monopoly right. Patenting each and every one of the thousands of incremental advances puts a toll and a transaction cost for everyone doing business in that space, and that's tremendously inefficient and damaging.
  • In the discussion on damages reform, Lichtman suggests that "we design the system to exaggerate" damages, in order to act as a punishment and deterrent against infringement, and Rader cuts him off and disagrees, pointing out, sternly, that "the Patent Act says adequate to compensate. It doesn't say adequate to deter. It doesn't say adequate to punish." If only the courts actually paid attention to that in a manner that was in line with the real world. Tragically, it rarely does.
Rader is clearly intelligent and feels strongly about some of these things, but it seems like he's actually quite out of touch with what's happening in the field with patents these days in areas where actual innovation is happening. That seems a bit scary to me.


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  1.  
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    Anonymous Coward, Nov 5th, 2010 @ 6:32pm

    "Rader starts out by suggesting that it's simply impossible for any tech firm to "keep up" with technology"

    If this is true, how do patents help you keep up being that patents make it illegal for you to keep up.

     

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    Anonymous Coward, Nov 5th, 2010 @ 6:33pm

    Re:

    (unless you want to pay potentially absurd royalties)

     

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    Anonymous Coward, Nov 5th, 2010 @ 7:02pm

    In the real world people are only rewarded for completing ALL OF THE WORK not just part of it, should a cashier get paid for doing half the job or only a piece of it?

    Nope, but clearly some believe otherwise.

    I go to a lot of hacker(tinkerers) forums and they have wonderful ideas spawning all over the place but then I remember that they probably will not be able to put that into something they can get something out of it except satisfaction.

     

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    Paul (profile), Nov 5th, 2010 @ 7:07pm

    Patents "bring people together"

    Really?

    Suppose someone publishes a patent, and I as an engineer/business person read that patent and decide it has nothing to do with my product.

    Now if this "someone" sues me and wins, then they get TRIPLE damages if it can be shown I knew about the patent (i.e. willful infringement).

    So to limit my liability, I very carefully AVOID reading patents as an engineer or business person, and leave the patent research to my lawyer who just gives his "yeah" or "nay", even though he hasn't a clue about the technical details of my product.

    How does this "bring people together"? Sounds to me like it isolates engineers and business people. Seems to me that we don't get together until our court date.

     

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    Anonymous Coward, Nov 5th, 2010 @ 8:23pm

    How about just limiting generic patents such that they have to give specific examples of how the invention is to be used, created or implemented as it pertains to the invention they are creating? If a person with average art in the skill to be described is unable to determine how to implement the patent (like if it's so generic the invention can be almost anything) then it is rejected? That would seem to reduce the amount of "inventions" that are granted only with the goal of litigation.

     

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    Shadow Six (profile), Nov 5th, 2010 @ 8:49pm

    The exact opposite of regulation

    This was an enjoyable read. Not because it reiterates the obvious but because the distinct point of view between the people that practice law, and the people that actually do the research that results in patents, has been growing rapidly. It's always refreshing to see that someone who is steeped in the system can still see the forest for the trees. I almost always hear "you would have to be a patent attorney to understand the issues" and I remind them that, as system for attorneys by attorneys, was never the intent of the system in the first place. Also the term of a patent should be related to the barrier to entry of a given market. The seemingly whimsical nature of the USPTO's willingness to introduce monopolies into a free market, is extremely troubling to most people who are observing from outside the legal prospective... especially, to those of us who actually develop new technologies.

     

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    MrWilson, Nov 5th, 2010 @ 11:11pm

    Re: Patents "bring people together"

    Technically, it's true. Patents do bring people together...in court...where Rader typically sees them.

    It couldn't possibly be for job-security reasons that he seems comfortable with how patent law currently works...?

     

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    Anonymous Coward, Nov 6th, 2010 @ 1:34am

    Re:

    Which, arguably, is the only way this madness has been justified. Look at who's there lobbying/corrupting governments around the world to accept the asinine concept that granting a multi decade monopoly on a fantasy, which neither has to be implemented, nor unique. lots of people have had some feature copied and then patented by a competitor who then came knocking on their door looking to hinder.

    It's an injustice, and it's setup to benefit the top .1 % of businesses. AKA "the owners"

     

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    bikey, Nov 6th, 2010 @ 4:20am

    Maybe he's not 'feigning ignorance'. The first time I ever speak was early on in his tenure at CAFC at a conference in Seattle on IP in Asia. With his goofy 'in America, anyone can do it if they really try' message, he proudly announced that before taking this job, he knew nothing about patents. It was not amusing and very embarrassing then, and it's not amusing and very embarrassing now. Only now, it's the spirit of the age. You go Randy.

     

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    Richard (profile), Nov 6th, 2010 @ 10:50am

    Re:

    In the real world people are only rewarded for completing ALL OF THE WORK not just part of it, should a cashier get paid for doing half the job or only a piece of it?

    No-one completes all of the work - so by your logic no one should be paid.

     

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    Anonymous Coward, Nov 6th, 2010 @ 11:22am

    tl;dr

     

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    darryl, Nov 6th, 2010 @ 11:57am

    patents in situations like that now create transaction costs that hinder innovations that advance the market. !!! Ok Explain how with examples..

    Now, to some extent that's true. No single company does invent the future, but I actually see that as a pretty strong argument against patent protection in most cases, since patents in situations like that now create transaction costs that hinder innovations that advance the market. It's putting a toll on innovation, which can be much more efficiently handled in the actual marketplace.

    Would you like to explain that statement Mike ?

    How do patents create transaction costs that hinder innovations that advance the market?

    So the development of a technology that is commercially valuable, is a "transaction cost" that hinders innovation ?

    You know as well as everyone else, that its not the invention that makes money its the usefullness and desirability of the invention.

    So a commercially viable invention does not create a transaction cost that hinders innovations.
    It creates a transaction PROFIT that promotes innovation.

    But I would be more than happy to see you explain how it could be as you explained.
    How are patents putting a toll on innovation

    If you have access to innovations or patents or idea's there is no need for you to develop your own innovations, or there is no need for you to USE those developments if you think you can do better.
    But existing patents, are NOT a toll on innovation, and Rader is right that patents allow cooperation between groups and to promote innovation and the progress of science.

    But I would love to see you elaborate on that claim, because on its own it is meaningless.

     

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    darryl, Nov 6th, 2010 @ 12:18pm

    Judge Feigns Ignorance --Therefore displays knowledge

    WE could start with the Headline.

    Chief Patent Judge Feigns Ignorance Of How Often Patents Are Used To Hinder Innovation

    No Mike, can you not even get that bit right ?
    If you 'feign Ignorance' that means you KNOW the TRUTH and facts but you are acting like you dont.
    (btw, that is not what Rader is doing).

    If anything, you should be claiming that he is 'feigning knowledge' of how often patents are used to hinder innovation.

    To 'feign ignorance' of 'how often patents are used to hinder innovation means HE DOES KNOW how often patents are used to hinder innovation. Which I am sure is not what you wanted to say. It's infact the opposite to what you want to say !!

    Mike, If there is ANYONE feigning ignorance about how patents hinder innovation it would have to be you !

    In other words allthough you know patents dont hinder innovation you feign ignorance of the facts that show that patents do not hinder innovation. Therefore you are feigning ingnorance of the damage NOT being done because of patents. Do you understand yet ?

    I would suggest you dont use big words that you dont really understand. Makes you look kind of silly, to say the least.


    They, if they're smart, coordinate, and cooperate with the world to achieve that future, and what is it that facilitates that? It's the patent system! Extremely idealized and not at all accurate in so many cases these days. Instead, what's happening is that many folks are putting all of the puzzle pieces together themselves, and don't need to work with all those other folks. But then someone else shows up, after the puzzle is completed saying "I own this half of the puzzle thanks to this patent, now pay me." And, making matters even worse is often you get lots of companies showing up, all claiming to "own" large chunks of the puzzle (often in overlapping ways!).

    So that is you're claim, so how about some supporting proof ?

    Like some examples of 'folks putting all the puzzle peices together themselves'.
    Any examples at all !!!!

    If you can think of ONE example that would be great, one example out of the millions upon millions of products and inventions, show me something that was put together by one group without input from any other technology ?

    You cannot do it, you can only say it like it is a wish or something.

    many folks are putting all of the puzzle pieces together themselves

    Strong statement, so please support it with some evidence ?
    If not, what you are saying is incorect, wrong, or just an outright lie. Just because you say it does not make it a fact. clearly.

    So back up your statements, with you know.. real facts and information, maybe even some examples !!!..

    There is no reason for you not too, unless you cannot actaully do it.. which I am assuming is the case.

    ___________________

     

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    darryl, Nov 6th, 2010 @ 12:54pm

    Examples of patents hindering innovation please, and the 'independent invention' Myth.

    and does not cover many, many, many innovation-hindering situations, especially in cases where there's independent invention or patent thickets.

    Again, Mike, how about an example or two ?

    If there are MANY, MANY, MANY (3 whole many's) then it should be trivial for you to list some, to list one, to list ANY.

    So you can show me, and you're good readers some example where independent invention was 'innovation-hindering' ?

    You can also show us some 'modern' or recent examples of independent invention please.

    Sure, after following a few hundred links, I fanally found your 'examples' of 'independent or simultaneous' invention. I will give you the list.. Nothing recent sorry.
    Mike cannot find any examples in this certury to support his claims.

    Telephone Bell Vs Gray
    Gray lodged a caveat for a 'water microphone' bell lodged a patent for a bi-directional voice communications device, or method.
    Gray patented a sympathetic vibrating reed transmitter/receiver combo that was capable of sending tones along wires, but NOT voice.
    They were not independent inventions.

    Newton Vs Leibniz - Calculus
    No again not an indepent or simultaeous invention, not an invention at all, it was two separete discoveries of a METHOD for the documentation and notation for a form of math.
    Newton and Leibniz worked together and developed their idea's together, their developments were not independent or simultaneous.

    Charles Darwin Vs Alfred Wallace.
    No Mike, they did not both 'invent/discover' evolution at the same time. Darwin developed the theory many many years before he published, but felt it was too controvercial to publish (he was right), we corresponded with Wallace and Wallace with Darwin, when Wallace told Darwin that he was realising evolution might be 'something' that prompted Darwins friends who knew he had been sitting on his research for years to publish.

    This is not an example of independent invention.

    Decimal Fractions
    For a start neither decimal or fractions were discovered or invented, NO Mike. There were several METHOD's of notation and manipulation of Decimals and fractions that were independently developed. NOT THE SAME THING mike !!!

    Oxygen Discovery !
    No one person catagorised oxygen the earlier guy found 'some stuff' but did not know what it was, that is not discovering anything. If you cannot define any of its parameters, you have no claim to its discovery.

    If you are sailing the sea and you find an island, you cannot claim you discovered an island, if you cannot state where it is, how big it is, what it is made of and so on.

    No, once person discovered a 'stuff' (not even a gas) that was 'nice to breath' but did not know anything else.

    The discoverer of oxygen was able to define its molecular weight, its properties, its mass and the fact that it is an element.

    Colour Photography
    No multiple people did not 'invent' an effective METHOD of colour photography, there were some early experiments that did not lead anywhere, like the 'hillotype' method and some others.
    But the RGB method was the real invention of a practical METHOD for color photography.
    There was also over a 10 year gap between the early failed experiments and the final correct/patented method.
    So no Mike not color Photography..

    Different inventors for the thermometer.
    No Mike, Different inventors for different thermometers at different times

    That hardly qualifies and independent invention, its like saying there were multiple inventors for the 'engine' yes that is true, but "the engine" is not an invention.

    The steam engine is, the petrol is, the jet engine is, they were all invented by differennt people, but they are different METHODS to achieve a similar goal, they ARE NOT THE SAME INVENTION, and they did not occur at the same time. (no inventions do).

    Nine claimants of the invention of the telescope.
    Again, No Mike. mabey there are 9 claimants to 9 DIFFERNT methods for a telescope, like the reflecting telescope, the refractiong, the newtonian, the dobsidian the radio telescope and so on.
    They are ALL telescopes, but DIFFERENT METHODS to achieve a telescopic effect. Therefore they have seperate patents.
    Clearly in this case alone it is shown that patents and innovation does not limit further innovation or invention.

    Because someone invented a steam engine, does not mean that someone else cannot invent a jet engine. As is the case.

    Sunspots in 1611

    That would be because of the development of telescopes, and the sun spot 22 year cycle peak at that time, Not an independent discovery.
    It was DEPENDENT upon the invention of telescopes and the occurance of the 22 year sun spot cycle peak.

    That is not simultaneous or independent discovery or invention.

    So where are the examples of independent invention that you can provide us, and the example how patents hinder innovation?

    Any at all in the past 200 years ?

    I follow you links and I get less than 10 examples of 'independent invention' most I find are not examples of that at all. ALL are OLD

    And only 10 or so !!! how many patents do you think exist in 2010, and out of that HUGE list you can only find a hand full of very weak arguments for independent invention.

    Yes, you are unable to provide any present day examples, or any examples where innovation is hindered by patents.

    Yes, If required I could provide thousands upon thousands of example where patents enhanced innovation, and not hindered it.

    But I will let you go first if you like. :)
    Allthough I do not expect you to come up with the good, or any facts. If the example you have refered me to is the best you can do !!!.

    Its not that good Mike.

     

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    Anonymous Coward, Nov 6th, 2010 @ 1:22pm

    If only someone had invented a way to format sentences in a way that humans could read it without making their eyes bleed.

     

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    Anonymous Coward, Nov 6th, 2010 @ 1:53pm

    Re: patents in situations like that now create transaction costs that hinder innovations that advance the market. !!! Ok Explain how with examples..

    Another "interesting" interpretation of words.... in three posts no less this time. But OK I'll bite
    How do patents create transaction costs that hinder innovations that advance the market?

    So the development of a technology that is commercially valuable, is a "transaction cost" that hinders innovation ?
    Well I'm not Mike and make no claim to be about to invent anything so I've never been in this situation and am not likely to be but I'll have a stab at pointing out what seems an obvious possibility to me.

    Let's say I come up with an idea for a really cool gadget to sell - lets' call it a "thingy". I do a bit of research and figure I can sell my thingy for $10 each. "Great", I think, "it costs $8 to make my thingy that's a pretty good profit"

    I dig a bit deeper and find that company A has a patent on a "whotsit". They've probably never built one, maybe they have doesn't matter, but the whotsit describes a little bit of my thingy.

    I've never heard of a whotsit, but being a good boy I apply to company A for a license. "No problem", they say, "That'll be $1 royalty per unit for the license to use our whotsit"

    That's OK that still leaves me a 10% profit. Except now it seems that company B has patents for the "reticulated flange bracket" and "knurled scroffle flange". Never heard of those either since they only seem to exist in certain kinds of arcane industrial machinery, but they look enough like a couple of the bits that hold my thingy together that they reckon I need to pay them too.... and so on

    And now the costs for making a thingy are way above the potential market value despite it being a completely viable and potentially highly profitable item on paper. So the thingy never gets made.

    Does that not sound like the patents held by the other companies stifled my innovation?

     

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    Anonymous Coward, Nov 6th, 2010 @ 2:20pm

    Re: Examples of patents hindering innovation please, and the 'independent invention' Myth.

    Didn't actually bother to read much past the first couple of paragraphs as it was way too ranty and seemed rather peripheral to the argument, but I will say it sounds like you're asking to prove the absense of something.

    Mike's claim as I understand it is that nowadays independant invention is not (or rarely) accepted as a defence in patent matters and that "similar" inventions are all too often covered by patent since patents have become broader in general and so the "conflicting" invention is stifled.

    So what you are actualy saying is, "Please show me an invention that didn't happen". Which wouldn't suprise me since proving a negative is damn near impossible as you well know so I assume that's what uyou were going for.

     

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    Anonymous Coward, Nov 6th, 2010 @ 3:28pm

    Re: Re:

    wow, how profound...

     

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    Anonymous Coward, Nov 6th, 2010 @ 3:42pm

    Re: Examples of patents hindering innovation please, and the 'independent invention' Myth.

    At first your antics were amusing, so I just watched. However, I can't understand how you always post the same thing, "show me an example, you NEVER show me an example" this is preposterous, "darryl". You're always shown examples and you pretend that your not. You just post adolescent, babble over and over again like a little child asking "why not". How about (this is just how it's done, and NO I WONT LIST EXAMPLES) you post an acknowledgement of the obvious (so everyone knows your sane) then you post a counter point. Not based on the technical or semantic flaws of a selected sentence but based on the evident. See, you have lots of room to make an argument here. You just failed, miserably and spent a considerable about of time doing it.

    If you're a lawyer, please disclose your identity, so that I don't accidentally hire you one day.

     

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    Gene Cavanaugh, Nov 6th, 2010 @ 4:30pm

    Patents and Judge Rader

    Excellent article, and very well-thought-out!
    I will add one point: the world is becoming more contentious, and the IP system we have is becoming less able to cope. I can see a total breakdown coming.
    For example, and this is hyperbole, but it illustrates the dangers: a terrorist organization gains access to some sort of vital technology (we have people in the US who are so focussed on personal gain; they would sell such technology, if they had the opportunity). The terrorist organization patents it, and refuses to allow anyone to use it; thereby allowing countries who oppose us, and don't feel bound by our IP laws, to undermine and ultimately destroy us.
    How could that be a good thing? Yet, since the law allows a MONOPOLY, with no requirement for providing a license at a reasonable fee, it is possible.

     

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    Anonymous Coward, Nov 6th, 2010 @ 5:22pm

    Re: Examples of patents hindering innovation please, and the 'independent invention' Myth.

    @darryl, you have got inventions and discoveries mixed up. A discovery is the finding of something in nature. The thing exists independently of its discoverer, it did not get brought into being by its discoverer. It might always have been there. For example, 2 + 2 = 4 is a mathematical fact that some human discovered many thousands of years ago, but that fact was always true, right from the beginning of time.

    An invention is the creation of something new, which has not previously existed. For example, somebody invented the + symbol, which we use to mean the mathematical addition operator. Addition had always existed, merely awaiting discovery, but the + symbol had to be invented. Then the idea of using + to mean addition had to be invented.

    Alas, the confusion between invention and discovery exists in the US constitution, to the benefit of patent lawyers and the disbenefit of everybody else.

    Please modify your post so that you no longer commit the error of confusing discoveries and inventions.

     

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    Anonymous Coward, Nov 6th, 2010 @ 5:40pm

    Re: Re: Examples of patents hindering innovation please, and the 'independent invention' Myth.

    For example, 2 + 2 = 4 is a mathematical fact that some human discovered many thousands of years ago, but that fact was always true, right from the beginning of time.
    *grin* not the best example perhaps - you *could* argue that 2 + 2 is only 4 because someone decided it did and convinced everyone else. It is after all only 4 in the mathmatical language we all use....

    I prefer gravity as an example:
    "(..) Sir Isaac Newton, renowned inventor of the milled-edge coin and the catflap!"
    "The what?" said Richard.
    "The catflap! A device of the utmost cunning, perspicuity and invention. It is a door within a door, you see, a ..."
    "Yes," said Richard, "there was also the small matter of gravity."
    "Gravity," said Dirk with a slightly dismissed shrug, "yes, there was that as well, I suppose. Though that, of course, was merely a discovery. It was there to be discovered." ...
    "You see?" he said dropping his cigarette butt, "They even keep it on at weekends. Someone was bound to notice sooner or later. But the catflap ... ah, there is a very different matter. Invention, pure creative invention. It is a door within a door, you see."
    - Douglas Adams, Dirk Gently's Holistic Detective Agency

     

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  23.  
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    abc gum, Nov 6th, 2010 @ 6:16pm

    Re: Re: Examples of patents hindering innovation please, and the 'independent invention' Myth.

    You're asking darryl to not be confused?

     

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  24.  
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    Anonymous Coward, Nov 6th, 2010 @ 6:47pm

    Having listened to the entirety of the discussion, I must ask if perhaps you were listening to a variant of the one that Mr. Lichtman actually posted?

     

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  25.  
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    Anonymous Coward, Nov 6th, 2010 @ 7:26pm

    Patents are just another way that the government gives to those who are least deserving.

     

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  26.  
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    Anonymous Coward, Nov 6th, 2010 @ 10:50pm

    BTW, neither Judge Rader nor Mr. Litchman are patent lawyers. In fact, under of current federal rules neither of them would even be permitted to sit for the USPTO bar exam and become members of the bar. That said, their discussion touches on many opposing points of view, and does so in a quite respectful and thoughtful manner.

    An important point to add is that even among members of the patent bar, these very same points are widely debated. Contrary to what some may believe to be the case after reading many of the articles posted on this site, there continues to be a vigorous debate within the patent bar that demonstrates anything but a mindset devoted solely to "job protectionism" as is often stated here.

     

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  27.  
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    Anonymous Coward, Nov 6th, 2010 @ 10:59pm

    Re: Re: Re: Examples of patents hindering innovation please, and the 'independent invention' Myth.

    wait.. im confused. Is darryl not to be confused?

     

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  28.  
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    Anonymous Coward, Nov 6th, 2010 @ 11:12pm

    Re:

    How do you know this? (I'm being serious BTW) This is something that I've struggled to understand since the USPTO published the new subjects of patent eligibility following state st. back in 99.

    If this is the case, and the subject of job security is discussed in the context of patent eligibility, a corruption investigation may be in order. I can't think of another word for it.

     

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  29.  
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    Anonymous Coward, Nov 6th, 2010 @ 11:22pm

    I am not sure what it is to which you are referring in your first question.

    Likewise, I do not understand the point being made in your second paragraph.

     

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  30.  
    identicon
    Anonymous Coward, Nov 7th, 2010 @ 6:41am

    Re:

    "Contrary to what some may believe to be the case after reading many of the articles posted on this site, there continues to be a vigorous debate within the patent bar that demonstrates anything but a mindset devoted solely to "job protectionism" as is often stated here."

    Well, given some of the things that they consider patentable, they sure could have fooled me.

     

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  31.  
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    abc gum, Nov 7th, 2010 @ 6:52am

    Re: Re: Re: Re: Examples of patents hindering innovation please, and the 'independent invention' Myth.

    Possibly you have confused him with his other brother.

     

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  32.  
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    abc gum, Nov 7th, 2010 @ 6:56am

    Re: Re:

    Just hold on there a second ... the laser cat toy patent was and still is a valid invention.

    Oh - and so is the method of swinging patent.

     

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  33.  
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    Anonymous Coward, Nov 7th, 2010 @ 8:39am

    Re: Re:

    Has it ever occurred to you that this site might be cherry picking only comments from lawyers who stand on one side of an issue, and not presenting the comments of those on the other, those who happen to be inbetween, and those who as yet are stuggling with arriving at what they believe is a principle answer? I know the answer, but with a little elbow grease you might be able to answer it for yourself. Otherwise, you can simply sit back as many here seem prone to do and let this site think for you.

     

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  34.  
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    NullOp, Nov 7th, 2010 @ 9:34am

    Lawyers

    Lawyers need never enter the discussion as their opinion can be bought and sold. They should only speak what is current law and that is all!

     

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  35.  
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    Anonymous Coward, Nov 7th, 2010 @ 10:13am

    Re: Re: Re:

    Has it ever occurred to you that this site might be cherry picking only comments from lawyers who stand on one side of an issue, and not presenting the comments of those on the other
    Yes it has, but the site is basically "editorial" in nature and so you'd expect the articles on the whole to reflect the opinion of the writers.
    The comments, however, are completely free and open, unless there's some grand conspiracy that leaves the ranting inhoherent opposition and removes the reasoned argument opposition and who'd go to all that trouble?

    I've commented elsewhere on this site that it would be nice to see a reasoned argument in the opposite direction in the comments giving a coherent argument as to why the articles are wrong. Since I've started reading this site I've seen the occasional nugget of coherent argument the other way, but too often when it's challenged the responses seem to break down to name calling or similar rather than continuing the debate.
    As someone else commented at the time, this site seems to be fairly well known in the field so it's a little strange that no-one who can sustain a debate much past 1 post seems to show up.

    Granted that's not compelling evidence that no such coherent opposition arguments exist, but after a while you have to at least start wondering.
    I'd love to see some people in the comments who can sustain a debate on both sides so if you know any please bring them along!
    I've also had a little look around and can't see an opposition site in a similar field on the other side that allows free commenting and debate. I can't find one, so if you know one, by all means point it out.

     

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  36.  
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    Anonymous Coward, Nov 7th, 2010 @ 10:37am

    Re: Re: Re: Re:

    "I've also had a little look around and can't see an opposition site in a similar field on the other side that allows free commenting and debate."

    Of course not, the opposite side knows its wrong and it knows that their opinions collapse in the face of scrutiny.

     

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  37.  
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    Anonymous Coward, Nov 7th, 2010 @ 10:46am

    Re: Re: Re: Re: Re:

    (why do you suppose the mainstream media would never allow someone like MM or some academicians to like Levine and Boldrine to discuss these issues. Yet they would happily promote IP and discuss the pro IP side, even to the point of allowing people who are relatively ignorant and on and irrelevant to these subject to promote their position. It's because the MSM knows that their position is indefensible and so they censor anything that will show their position for what it is.

    Take

    http://www.techdirt.com/articles/20100727/10432810380.shtml

    for an example).

     

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  38.  
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    Anonymous Coward, Nov 7th, 2010 @ 10:47am

    Re: Re: Re: Re:

    Most such "debate" takes place at professional meetings, amicus briefs, legal blogs, and the like.

    The reason for this is largely that one must understand many facets of the law in order to comment with some authority, and it is not feasible to comments here to any significant degree without also elaborating at length on those many facets. That would turn responses into very lengthy presentations that do not fit well here.

    For example, just the title of the article itself merits a one or two paragraph response in order for those who have not listened to the discussion between Messrs. Rader and Litchman to understand why it is misleading to a fault. Their discussion spans about 70 minutes, so reducing it to a few soundbites of commentary does the readers here a disservice.

    BTW, I do agree that much of this site is editorial in nature, but at the same time it must be noted that much of the site is devoted to "teaching" economics and legal theory. Clearly there is a difference between editorializing and teaching, with the latter requiring a much more even handed treatment of subjects.

     

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  39.  
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    Anonymous Coward, Nov 7th, 2010 @ 10:47am

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

    relatively ignorant on and *

     

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  40.  
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    Anonymous Coward, Nov 7th, 2010 @ 12:01pm

    Re: Re: Re: Re: Re:

    Yes, how dare someone focus on one portion of a 70 minute discussion because that portion is what is relevant.

     

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  41.  
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    Anonymous Coward, Nov 7th, 2010 @ 12:09pm

    Re: Re: Re: Re: Re:

    "For example, just the title of the article itself merits a one or two paragraph response"

    So instead of wasting 3.2 paragraphs of your time responding to nothing, why not use your time wisely to respond to the issues?

     

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  42.  
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    Anonymous Coward, Nov 7th, 2010 @ 12:19pm

    Re: Re: Re: Re: Re:

    "and it is not feasible to comments here to any significant degree without also elaborating at length on those many facets."

    Translation: It is not feasible for me to comment on these subject because I am unable to defend my indefensible position.

    "much of the site is devoted to "teaching" economics and legal theory."

    If you feel this way then, instead of wasting time complaining about nothing, why don't you teach us instead? You will be much more convincing if you actually defended your position instead of complaining that those who oppose your position won't defend it for you. No one is stopping you.

    "the latter requiring a much more even handed treatment of subjects."

    So then where is your outrage at the mainstream media's one sided treatment of the subject (that is, they are in favor of the pro IP side).

    See, the difference is that here you are free to give and defend your position (but you either choose not to or you are unable to. I will reasonably assume the later). Those who control the MSM have government granted privileges that allow them to keep people like MM out of the discussion and they abuse their privileges to do just that. The barriers to entering the discussion here are nothing, just comment and explain. Sure, it may require some work (something IP maximsits are reluctant to contribute because they are used to freeloading off of the work of others), but at least here you have an opportunity. MM and others who question IP have no opportunity to comment on govt privileged MSM outlets, those who control the media won't let them.

     

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  43.  
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    Anonymous Coward, Nov 7th, 2010 @ 12:33pm

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

    and the MSM is always having pro IP shows (ie: 20/20 and 60 minutes, even recently) against piracy and whatnot. They are very unevenly handed and their impact is far greater than that of MM. Where is your outrage at that? Your outrage against an open blog that openly allows you to openly defend your position looks misplaced when compared to the much greater outrage you should have against a government privileged mainstream media that is very unevenly handed.

    take

    http://www.techdirt.com/articles/20091101/1818186751.shtml
    http://www.techdirt.c om/articles/20091103/0303386776.shtml


    http://www.techdirt.com/blog.php?tag=20%2F20&edition= techdirt

    as examples (and Universal even tried to take down and censor as much of the report as they could from Youtube because, in retrospect, it was so wrong and inaccurate that they don't want people who watch it to draw conclusions that disagree with Universal).

    Where is your outrage that disagrees with the mainstream media's mostly indefensible one sided view of the issue and your outrage that censors the perfectly reasonable arguments against IP and the problems with it from the MSM?

     

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  44.  
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    Anonymous Coward, Nov 7th, 2010 @ 12:34pm

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

    and your outrage that they censor *

     

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  45.  
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    Anonymous Coward, Nov 7th, 2010 @ 3:05pm

    Re: Re: Re: Re: Re: Examples of patents hindering innovation please, and the 'independent invention' Myth.

    dude... ++; (how did I miss that?) :)

     

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  46.  
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    Anonymous Coward, Nov 7th, 2010 @ 3:37pm

    Re: Re: Re: Re: Re:

    The reason for this is largely that one must understand many facets of the law in order to comment with some authority, and it is not feasible to comments here to any significant degree without also elaborating at length on those many facets. That would turn responses into very lengthy presentations that do not fit well here.
    I have to say I find that rather artful and just a tad condecending.
    I have no doubt that the technical detail of law would require many many volumes. Indeed the entire legal profession is based around using as many words as possible to describe with painful exactitude the simplest human interractions. On the other hand a good lawyer ought to be good enough with language to summarize. Explain the basics - I'm a fairly smart guy, I can take it. I don't need the condecending pat on the head and the "it's too technical" response thank you.

    But I also said "artful" and by that I mean you're trying to use the exactitude of law to shift the debate. What I and many other people here are asking is not the fine points of law but business-level statements. Mission statements if you like, that describe the purpose of law. This is what the law has lost... purpose and relevance and no-where is this more clear that in IP law.

    There was an article a little while ago on here about Mark Twain's biography and it contained about 2 paragraphs pretty much listing what might be relevant copyright laws. My questions about IP laws are not "what does the law say", fascinating though that might be, but instead more fundamental questions such as:
    - How has it been allowed to get to such a state that the "user" cannot understand it. As you point out the law is technical. Do I really need to take a law degree to work out whether I can photocopy a page from a book? Why?

    - Why does IP law seem to favour protectionism when experience shows that protectionism is ultimately futile and expensive.

    - What justification is there for extending copyright beyond even the lifetime of the creator? Is it reasonable to still be paid for work you did over 50 years ago?

    These are not questions of law, nor are they neccessarily clear cut. What I am interested in is an opposing opinion that doesn't hide behind semantics, but offers a possible justification for questions such as these and many more.

     

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  47.  
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    Anonymous Coward, Nov 7th, 2010 @ 3:48pm

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

    don't expect anything from IP maximists beyond condescending statements of superiority and claims that their position is better because it's too complicated for anyone but them to understand why.

     

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  48.  
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    JEDIDIAH, Nov 7th, 2010 @ 8:03pm

    They get paid for actually selling something to you and me.

    ...except it ignores the fact that people can and do sell real products. Tivo doesn't have to set itself up as a bridge troll, they can sell a better PVR than the next guy. Since they have been doing it for a long time, chances are that they can keep up with the "new kids".

    If they can't, then they deserve to be "run out of town on a rail".

     

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  49.  
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    Anonymous Coward, Nov 7th, 2010 @ 10:07pm

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

    "How has it been allowed to get to such a state that the "user" cannot understand it. As you point out the law is technical. Do I really need to take a law degree to work out whether I can photocopy a page from a book? Why?"

    No, you should not need a law degree to determine if photocopying a page from a book is ok. The question is, however, rhetorical. When was the last time that you or anyone you know ever sued for photocopying a page out of a book? Have you ever read a news article reporting that an individual such as you had been sued by someone for making a single page photocopy from a book? I rather doubt it.

    Could it ever happen? Yes, but invariably it would be the result of a very unusual set of facts about at least 10 sigma from the norm. In other words, for all practical purposes this is a non-issue.

    "Why does IP law seem to favour protectionism when experience shows that protectionism is ultimately futile and expensive."

    "Protectionism" has many meanings, so here I will assume you are using it to signify that the work of an author or inventor is somehow being "protected" by law. Entire forests have been leveled to make paper on which articles are printed waxing poetic on whether or not such protection is appropriate. Fortunately, this comment is not being written on paper, so for now the Sierra Club and I are not at odds.

    As nice as it is to think that enlightened self-interest is a sufficient motivator to get parties to a table to talk and work out mutually beneficial deals, years as a negotiator informs me that human nature is not guided in the first instance by enlightened self-interest. People seldom act rationally when it comes to their personal self-interest vis a vis that of another. In such instances the law serves a very useful purpose, i.e., it injects reality into the situation and forces them to come to the table and work out a compromise deal. In business this is a daily reality. Arch rivals have the choice of either slugging it out or working out a mutual accommodation. To me this is a good thing because the art of compromise is what distinguishes us from societies where the use of brute, physical force is the analog of law.

    "What justification is there for extending copyright beyond even the lifetime of the creator? Is it reasonable to still be paid for work you did over 50 years ago?"

    Absurdly long copyright terms are a European brainchild (with France having led the way). This was not the case in the US where terms were originally 14 years plus a possible extension for an additional 14 years. Back in the 1800's the initial term and extension were enlarged to 28 years, and this remained the law until the enactment of the Copyright Act of 1976. For almost 90 years the US, though a signatory to the Berne Convention, stuck by its guns and stayed with these shorter terms and with legal formalities virtually non-existent in Europe. It was only when it became clear that the interests of US authors were being disserved outside the US that the US finally capitulated and acceded to the Berne Convention. Frankly, I and most copyright attorneys I have worked with have generally viewed the extension of terms and lifting of formalities as an unwise move, creating more problems than they solved.

    The above are merely generic comments concerning a system of laws that do not easily admit to soundbites. You mention you have many questions. Feel free to pose one or more of them (with particularity, please, since it is almost impossible to provide cogent answers otherwise) and I will endeavor to answer then as best I am able.

     

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  50.  
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    Mike Masnick (profile), Nov 7th, 2010 @ 11:28pm

    Re:

    Having listened to the entirety of the discussion, I must ask if perhaps you were listening to a variant of the one that Mr. Lichtman actually posted?

    Heh. Could you possibly be *any* more childish in your attempts to insult in a manner which would let you go back later claiming "I mean no insult..."

    Grow up.

     

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  51.  
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    Mike Masnick (profile), Nov 7th, 2010 @ 11:31pm

    Re:

    BTW, neither Judge Rader nor Mr. Litchman are patent lawyers.

    Did someone say either one was?

    Nope.

    That said, their discussion touches on many opposing points of view, and does so in a quite respectful and thoughtful manner.

    Did anyone say anything otherwise?

    Nope.

    That's just you making up lies about what I've said yet again.

    An important point to add is that even among members of the patent bar, these very same points are widely debated.

    Did anyone say anything otherwise?

    Nope.

    ontrary to what some may believe to be the case after reading many of the articles posted on this site, there continues to be a vigorous debate within the patent bar that demonstrates anything but a mindset devoted solely to "job protectionism" as is often stated here.

    Ah, and here is the willful misreading from you. I have never suggested that all lawyers act that way. In fact, I regularly quote from and speak to lawyers who both agree and disagree with me. I have nothing against "lawyers" or even "patent lawyers."

    You seem to be willfully misstating my position as you do all too often.

    I would suggest, if you want to be taken seriously, that you refrain from doing so again.

     

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  52.  
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    Mike Masnick (profile), Nov 7th, 2010 @ 11:36pm

    Re: Re: Re: Re: Re:

    The reason for this is largely that one must understand many facets of the law in order to comment with some authority, and it is not feasible to comments here to any significant degree without also elaborating at length on those many facets. That would turn responses into very lengthy presentations that do not fit well here.

    Heh. The preferred condescending "you're too stupid to understand these things" dodge when caught in a position our friendly lawyer commentator here cannot, in any reality, respond to.

    For example, just the title of the article itself merits a one or two paragraph response in order for those who have not listened to the discussion between Messrs. Rader and Litchman to understand why it is misleading to a fault.

    What is misleading about it? I believe it is quite accurate.

    Their discussion spans about 70 minutes, so reducing it to a few soundbites of commentary does the readers here a disservice.

    I made quite clear within the post that much of the conversation was about the process. I never suggested the entire conversation was about this point, but I highlighted that point because it is the interesting one. Surely, you do not believe that any blog post on a 70 min discussion must include an explanation of the entire discussion, do you?

     

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  53.  
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    Anonymous Coward, Nov 8th, 2010 @ 1:20am

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

    Have you ever read a news article reporting that an individual such as you had been sued by someone for making a single page photocopy from a book? I rather doubt it.
    See this is exactly what I was talking about. Instead of a discussion of why this should be so to argue against my contention that it should not, I get a pedantic discussion of the merits of the exact situation I set as a simple example of the problem. I also mentioned the Mark Twain book - a hundred year old text that might be covered by about 6 or 7 seperate laws, but you completely ignored that.

    My point, which I think was fairly obvious for anyone with an IQ over 50 who wasn't deliberately mis-reading what I wrote, was not "Why can't I photocopy a book", it was "Explain why you think copyright and other IP laws should be so ludicriously complex that the people it applies to have no hope of working out if it applies ot them or not.

    I'm not completely sold on Mike's theories, but every time I get see a reply like this to valid questions such as this it pushes me further in that direction because it makes me wonder whether everyone on the "other side" really are thick as two short planks, or whether it really is that bad that they all feel the need to obfuscate so blatently every time the question comes up.
    "Protectionism" has many meanings, so here I will assume you are using it to signify that the work of an author or inventor is somehow being "protected" by law.
    No, I meant protectionism in the standard usage of the word in such situations - a set of laws enacted to put up barriers to entry into a marketplace or to encumber fair competition against the extablished players. Again I am forced to wonder at a deliberate misreading of my point to avoid answering the question. Now that I have clarified, would you like another go?
    Frankly, I and most copyright attorneys I have worked with have generally viewed the extension of terms and lifting of formalities as an unwise move, creating more problems than they solved.
    Interesting that you agree, though it seems that the richest incumbents in industries such as music, film, publishing, software etc seem to disagree with you as even now there seem to be several attempts to extend it further coming from the US. If/when you represent such people, do you advise them of your opinion, which they presumably dis-regard, or do you stay quiet in the interests of servicing your client's wishes?
    The above are merely generic comments concerning a system of laws that do not easily admit to soundbites. You mention you have many questions. Feel free to pose one or more of them (with particularity, please, since it is almost impossible to provide cogent answers otherwise) and I will endeavor to answer then as best I am able.
    Again, for those who missed it the first time, I'm not interested in points of law, nor am I interested in specific cases as it's too easy to provide singular examples on both sides. I'm talking about concepts and business drivers not law. I want to know what the intent of such laws is - what, in a few sentances, were they trying to achieve if it is not, as it appears from the user end, the increased profit of the large corporations that mostly lobbied for them?
    A soundbite I can get off television - I'm looking for pith.

     

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  54.  
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    Anonymous Coward, Nov 8th, 2010 @ 2:07am

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

    "Protectionism" has many meanings,
    "Protectionism"..... has...... many ......meanings?
    Then why do I only seem to be able to find one? I don't think it's a great stretch of the definition to include entry into a business sector as well as entry into a country when talking about barriers to trade. I do think it's a stretch to suggest it's about something else other than barriers to trade.....

     

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  55.  
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    Anonymous Coward, Nov 8th, 2010 @ 2:42am

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

    "I'm not completely sold on Mike's theories, but every time I get see a reply like this to valid questions such as this it pushes me further in that direction because it makes me wonder whether everyone on the "other side" really are thick as two short planks, or whether it really is that bad that they all feel the need to obfuscate so blatently every time the question comes up."

    Believe it or not, they're 100 times better than they used to be a year ago even. They used to be FAR worse, with their dishonesty and disingenuity being far more obvious than it is now. Don't believe me, go back a year or so and start reading comments. Look, in particular, at some of the stuff TAM (The Anti Mike) says. This is actually a huge improvement, at least they're not telling us to shut up, mind our own business, stop complaining, (along with threats to Mike sometimes even), as responses to criticisms that they can't respond to. At least now IP maximists are actually forming comprehensible sentences. Believe me, this is an improvement.

     

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  56.  
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    Jason, Nov 8th, 2010 @ 7:50am

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

    What the hell is a MSM?? Get a host, build a site, drop your link here. Hell, the guy was practically asking people to self promote in the comments!

    Quitcherbellyachin' about MSM and do it yourself or shattup!

     

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  57.  
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    Anonymous Coward, Nov 8th, 2010 @ 8:05am

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

    "Quitcherbellyachin"

    When IP maximists stop complaining about Mike not taking their positions then maybe I'll stop complaining about the MSM not presenting both sides of the issue.

    The IP maximist demand that people should be "even handed" only applies to those who disagree with them, they have no problems with those who agree with them being one sided.

     

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  58.  
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    Anonymous Coward, Nov 8th, 2010 @ 8:10am

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

    "do it yourself or shattup!"

    No, the MSM (mainstream media) is a disservice to our society, their govt granted privileged position is an injustice and injustices shouldn't be ignored.

    Injustice anywhere is a threat to justice everywhere. - Martin Luther King

     

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  59.  
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    duffmeister (profile), Nov 8th, 2010 @ 8:41am

    Am I an inventor?

    Take a little walk with me here, it will have a point relevant in that it brings up interesting points and questions for discussion. I need to be somewhat vague as it is being worked on, but it is a fully featured, remote site capable, audit, logging, IA and security tool for computers and networking centers with some basic trend analysis built in.

    Recently I came up with an idea, that the company I work for, (a computer services and contract company) is looking at potentially producing and selling to commercial enterprises and governmental agencies. The question is did I invent it? Absolutely nothing in it is new. I am using existing techniques and technologies in new ways to achieve a goal that many have tried and some have had marginal successes in. What would you think at this point?

    Lets examine how I invented this. I was on the phone talking to a customer that gave me several requirements. I spent over 4 hours dealing with this because their requirements were not matching up with one another and their actual need was being ignored in favor of checking boxes on forms that they met requirements. I was also being given no flexibility in how this could be done. I hung up the phone before I got in trouble took a break and ranted for about 10 minutes. I then realized I had solved the core problems their requirements had sprung from. I looked at it carefully and had found a good and sound way to meet their requirements and solve the under lying problem. That night I thought more about it and realized I could add more to it and solve many other problems and issues that were related at the same time. All of these things were preexisting techniques and technologies put together in new ways for a new purpose. I decided to discuss it with the company I work for. The CEO decided to get 6 other people involved to look at this new "invention." They deemed it a wonderful thing that they wanted in their data centers as well and saw no major problems with it. So now again, is this still an invention?

    Now we get to the where this crosses the paths with what this article is about.... is it patentable? Do we owe others for using their off the shelf technology in new ways? Is there any other patenting or licensing in the way despite a completely independent "invention" of this? All of this discussion has to happen before we can spend any money to develop this because it may cost us more in the long run to bring this "invention" to market than to ignore it. Is that what the end goal of our system is supposed to be? Notice I haven't even begun to discuss marketability, profit, and so forth because first we have to make sure this can even be done without people making claims to it financially. Does it make any sense that a product with a demand, that solves a problem, and is a new idea probably won't make it to market because our system has so many roadblocks financially and legally that it can't even succeed or fail on its own merits on the market?

    I hope this makes some sense to people. I am pointing out from personal experience just how difficult our system has become where it actually discourages innovation and invention rather than fostering and promoting it.

    I think more people need to be aware what doesn't make it to market because of the system to see what has been lost.

     

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  60.  
    identicon
    Anonymous Coward, Nov 8th, 2010 @ 8:41am

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

    "Get a host, build a site, drop your link here. ... do it yourself or shattup!"

    Tell that to your IP maximist friend who keeps complaining to MM about not taking his position.

     

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  61.  
    identicon
    Anonymous Coward, Nov 8th, 2010 @ 8:48am

    Re: Re:

    I listened for instances of "snippy", "brushed off", "flabbergasted", etc. This was most certainly not the case, unless, of course, you were listening to another version of the discussion.

    In most instances where your article tries to portray Judge Rader is a negative light you attempt to rely upon cherry picked statements that do not reflect the points actually being made during the course of the discussion.

    Throwing around terms like "childish" and "insult" serve no useful purpose in a discussion, unless, of course, the purpose is to avoid a substantive discussion altogether.

     

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  62.  
    identicon
    Anonymous Coward, Nov 8th, 2010 @ 9:18am

    Re: Re:

    "Did someone say either one was?"

    This brief comment was to note that more than just "patent attorneys" (the constant subject of villification here) share views that are not in consonance with what is repeatedly stated here. Are they too trying to "protect their jobs because they have a vested interest in the status quo?

    "Did anyone say anything otherwise?"

    Yes, you did, as evidenced by your large number of negative references to how Judge Rader interacted with Mr. Litchman.

    "Did anyone say anything otherwise?" (second occurence)

    This was a general observation contrasting this particular discussion with other discussions among patent lawyers on the subjects discussed between Judge Rader and Mr. Litchman. Substantively, such other discussions closely track this discussion.

    "Ah, and here is the willful misreading from you. I have never suggested that all lawyers act that way. In fact, I regularly quote from and speak to lawyers who both agree and disagree with me. I have nothing against "lawyers" or even "patent lawyers.""

    You could have fooled me. I and others who may take issue with your interpretation of points of law are invariably characterized, inter alia, as "IP Maximalists", "concerning about protecting their jobs", etc. Sorry, but this site only in very rare instances responds to counterpoints to your points with anything reflecting an interest in engaging in a thoughtful discussion. "All patents are bad. All patents hinder innovation. All patents are obvious. Patents in no instance serve any useful purpose. Patents are not property, and courts that may say otherwise do not know what they are talking about. End of discussion since I am right and you are not. Next issue, please?"

     

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  63.  
    identicon
    Anonymous Coward, Nov 8th, 2010 @ 9:31am

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

    "Heh. The preferred condescending "you're too stupid to understand these things" dodge when caught in a position our friendly lawyer commentator here cannot, in any reality, respond to."

    If you truly believe this to be the case, then you fundamentally misunderstand my comments.

    "What is misleading about it? I believe it is quite accurate."

    To even suggest that Judge Rader is feigning ignorance borders on the absurd. How you can possibly believe it is quite accurate eludes me entirely.

    "I made quite clear within the post that much of the conversation was about the process. I never suggested the entire conversation was about this point, but I highlighted that point because it is the interesting one. Surely, you do not believe that any blog post on a 70 min discussion must include an explanation of the entire discussion, do you?"

    One can summarize a 70 minute discussion accurately is one refrains from cherry picking comments that are presented entirely out of context.

     

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  64.  
    identicon
    Anonymous Coward, Nov 8th, 2010 @ 9:38am

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

    I took you at face value that you were looking for some answers/viewpoints directed to the questions you asked.

    Your comment was so open-ended and broad that I decided to provide comments on just a few and invited you to ask any more you might have. I did, however, ask that such questions be provided with some particularity since it is not possible to answer an open-ended question with any possibility of doing so with the brevity you desire.

    Apparently I was wrong. You were not seeking answers, but merely soliciting answers, any answers, to which you could respond with a rant. This is regrettable because you led off you comment in a way that impressed me as your being one of the very few who wanted to engage in a true and thoughtful discussion.

     

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  65.  
    icon
    pringerX (profile), Nov 8th, 2010 @ 9:56am

    I wonder if we could fix the system by adding rules to how infringement claims work. For example, having shorter initial patent periods that could be renewed or extended if the holder provides proof that they are creating a product that utilizes what is described in the patent. The idea would be to reward patent holders who make use of their patent by being productive and discourage those who would sit on their patents waiting for someone else to do the work of developing a product. Of course, any regulatory action is subject to the influence of the corporations that currently hold the reins, so it is also possible the system is irrevocably broken as it stands today.

     

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  66.  
    icon
    Mike Masnick (profile), Nov 8th, 2010 @ 11:30am

    Re: Re: Re:

    This brief comment was to note that more than just "patent attorneys" (the constant subject of villification here) share views that are not in consonance with what is repeatedly stated here. Are they too trying to "protect their jobs because they have a vested interest in the status quo?

    You are willfully (yet again) misreading my statement on those who are trying to protect their jobs. I have made that in reference to certain statements, but have never attempted to claim that *all* patent attorneys or all attorneys are merely just interested in protecting their jobs.

    Just some of them. Your willful misstating of my position is a weak response to something you have no substantive response to. Typical.

    Yes, you did, as evidenced by your large number of negative references to how Judge Rader interacted with Mr. Litchman.

    Ha! You ignore that I actually used the *same exact words* you did ("thoughtful") to describe Rader's comments, and explained why I think he's quite intelligent and believes what he's saying.

    Your attempts to smear me by directly misstating my position is pretty sad and weak. Good thing most people can actually read what I said.

    This was a general observation contrasting this particular discussion with other discussions among patent lawyers on the subjects discussed between Judge Rader and Mr. Litchman. Substantively, such other discussions closely track this discussion.

    In other words, no, no one said that, but you pretended we did, until you were called on it.

    Weak.

    You could have fooled me. I and others who may take issue with your interpretation of points of law are invariably characterized, inter alia, as "IP Maximalists", "concerning about protecting their jobs", etc. Sorry, but this site only in very rare instances responds to counterpoints to your points with anything reflecting an interest in engaging in a thoughtful discussion.

    I am always willing to engage in thoughtful discussion, should anyone, such as yourself, be willing to participate. To date, that has not happened. Instead, what we get are you making baseless accusations and false statements about me and what I have said (both on this site and elsewhere, where you're willing to sign your name, if the site is run by someone who disagrees with me).

    Your responses to this post show, clearly, the problem. People asked you a bunch of thoughtful questions, and your response was, effectively "you're too stupid to understand, let us patent attorneys work it out amongst ourselves, since we understand."

    "All patents are bad. All patents hinder innovation. All patents are obvious. Patents in no instance serve any useful purpose. Patents are not property, and courts that may say otherwise do not know what they are talking about. End of discussion since I am right and you are not. Next issue, please?"

    We have never made those claims. Again, willfully misstating what we write about?

    Weak.

     

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  67.  
    identicon
    Anonymous Coward, Nov 8th, 2010 @ 11:40am

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

    You are not engaging in "true and thoughtful discussion." You are attempting to use a patronizing style of writing in an effort to convince yourself that you are superior to the people you have chosen to converse with.

    Unfortunately, you write (somewhat) like a lawyer and the other AC is writing (somewhat) like a philosopher. He wants to broadly discuss a large and abstract question; you want to endlessly critique the question itself.

     

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  68.  
    identicon
    Anonymous Coward, Nov 8th, 2010 @ 11:42am

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

    Priceless.

    If you truly believe this to be the case, then you fundamentally misunderstand my comments.

    So Mike calls out your condescending attitude of superiority ... and you respond with more.

    How's that working out for ya?

     

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  69.  
    identicon
    Anonymous Coward, Nov 8th, 2010 @ 12:30pm

    Re: Re: Re: Re:

    "Ha! You ignore that I actually used the *same exact words* you did ("thoughtful") to describe Rader's comments, and explained why I think he's quite intelligent and believes what he's saying."

    Yes, of course you used "thoughtful", but in my opinion one complimentary (and accurate) word pales in comparison with the many, many negative words and phrases used to mischaracterize what was said and the context in which it was said.

    Your willingness to engage in thoughtful discussion? I have seen on a number of occasions where your willingness ends precisely at the point where a substantive comment is made to try and flesh out points for discussion. The comment is made and no response is forthcoming. If this happened once or twice it would be easy to understand how a comment may have been overlooked. Unfortunately, this has happened far to often to suggest mere oversight.

    I used to sign my name, ran into some software problems, returned for a brief while signing again, and then decided it was not a good idea after receiving some rather strongly worded emails from some commenters here. My name is quite uncommon and my email address is easily found. Hence, I will stick with AC for the time being.

    As for other sites, yes I do sign my name...not because they disagree with you, but because they are forums where opposing points of view are entertained and discussed professionally. Two others come to mind that fall in the category of general intolerance...Against Monopoly and Recording Industry v. The People.

    To be fair, however, the same can be said of some sites on the other side of the aisle. As a general rule, any comments I may make there I try to make as an AC.

    "We have never made those claims. Again, willfully misstating what we write about?"

    If I am mistaken I will be pleased to so admit. Do you have any cites to where you have ever characterized a particular patent as anything but bad, cites to where you may have said to even some patents do not hinder innovation, cites to where you state that patents can at times appropriately be deemed property, and cites to any patent you have stated certainly does not appear to be obvious? I do not recall any, but perhaps I am mistaken.

     

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  70.  
    identicon
    Anonymous Coward, Nov 8th, 2010 @ 12:43pm

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

    I took you at face value that you were looking for some answers/viewpoints directed to the questions you asked.
    Yes, I am indeed looking for viewpoints on the questions I asked. I'm still hoping someone might provide one.
    Your comment was so open-ended and broad that I decided to provide comments on just a few and invited you to ask any more you might have.
    You provided comment on specific theoretical examples I had set up to illustrate my points of the problems with how the law is rather than an opposition argument as to why is might be considered a good idea that this be so. The manner in which you did so seemed deliberately obtuse. Do you really not understand what I say when I refer to "business drivers" or "mission statements" behind laws? I summarised my questions in a few paragraphs, is it really so hard to summarise the answer the same way?
    Apparently I was wrong. You were not seeking answers, but merely soliciting answers, any answers, to which you could respond with a rant.
    Again, I pointed out that your response seemed deliberately obtuse as it avoided entirely the meat of my questions. If that counts as ranting then perhaps I am gulty as charged. Perhaps you would care to show how your answer related to the question since I seem to have missed whatever point may have been in the answers?

    Let's see if I can in some way alleviate your lack of satisfaction with the specifity of my questions with another attempt:

    Would you agree that much, if not most, modern IP law is driven by large corporations who have a vested interest in protecting their revenue streams that the protected IP generates?
    If you do, why do you believe this to be a good thing?
    If you don't, where do you believe the laws are driven from?

    If you feel you really must have an example of the above to comment on reasons then try:
    Why do you feel that large corporations feel the need to pursue unproductive policies such as limiting usage of digital media through DRM, that has been shown repeatedly not to work for its avowed purpose? Why do you feel that once it has been shown not to work they lobby for litigation in an apparantly equally futile attempt to make the trivial task of cirvumventing DRM to be illegal?

    I would contend that media companies almost deliberately create lawbreakers by making the functionality (and law) of digital media less than:
    - Common sense would suggest
    - Previous law (such as fair use) allows
    - The functionality of older technology allows
    Would you agree, if not explain please?

    Would you agree that IP law is overly complicated in application?
    If yes, why do you believe it to be a good thing?
    If no, please explain how you feel it should then be applied?

    I can summarise the reasoning for my questions, i.e. the reason why I think the law is wrong, in a paragraph or 2 for each and would suggest that it should be possible to summarise a law-supporting opinion in the same way.

     

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  71.  
    identicon
    Anonymous Coward, Nov 8th, 2010 @ 1:18pm

    Re: Re: Re: Re: Re:

    As for other sites, yes I do sign my name...not because they disagree with you, but because they are forums where opposing points of view are entertained and discussed professionally.
    Really? I seem to remember having asked about that:
    I've also had a little look around and can't see an opposition site in a similar field on the other side that allows free commenting and debate. I can't find one, so if you know one, by all means point it out.
    An oversite on your part perhaps? Would you care to point it/them out now for me?

     

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  72.  
    identicon
    Anonymous Coward, Nov 8th, 2010 @ 2:08pm

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

    So-called "IP" law embraces several distinct subject matter areas, i.e., patents, trademarks, copyrights, trade secrets, unfair competition, antitrust, some of which law is federal, some state, and some both. There is, of course, also an international law dimension.

    Given your follow-up questions it seems as if your chief area of interest is copyright law?

    Would I be correct in making this assumption and responding accordingly?

     

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  73.  
    identicon
    Anonymous Coward, Nov 8th, 2010 @ 2:30pm

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

    Given your follow-up questions it seems as if your chief area of interest is copyright law?
    In so far as I am interested in the law itself at all then yes copyright law would probably be the most applicable area in the most specific area of DRM that I mentioned. However, my general question about law being driven by corporations is equally applicable to, for example, trademark or patent.
    As I said, I am more interested in the reasoning of why such laws are pushed as "right" and lobbied for by corporations in the first place than a discussion of how the law works once enacted in 1 specific area.

    As a partial aside it's also worth noting that from the "user" end the various supposedly seperate IP law areas appear to be variably applied apparantly more based on what any given lawyer thinks will stick than, for exampe, common sense or even law and sometimes it seems that even judges don't know whether it should apply in a specific case. Hence my lack of separation of copyright law specifically and also relating to my question about the complexity of IP law in which I very definitely was referring to the whole enforcement area.

     

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  74.  
    identicon
    darryl, Nov 9th, 2010 @ 6:58am

    Discoveries and inventions.. Mikes examples... my analysis.

    Look at that, I asked if anyone could list ANY or some independent invention. But I did not expect to see any, and thanks guys, you did not let me down..

    And no I do not have a problem with inventions and discoveries, apart from being quite similar, I was using the example of 'independent invention' that Mike listed, if you follow 5 or 6 links from this article.

    for example you 'discover' gravity, but you INVENT a theory of gravity.

    Of you can discover that a certain mix of chemical and processes creates a new product, so you discovered nylon, but you invented A method of making nylon.

    You Patent the method, not the discovery.

    You could Discover the light magnifying properties of glass, and INVENT the microscope or the telescope.

    Or discover the light refraction on a prism, and invent a optical spectroscope.

    So many discoveries can be also inventions, but I would say few inventions are not discoveries at well..

    As for the guy saying 2 + 2 = 4 was because someone said it was and everyone believed them !!!!.

    Maybey they had 2 cows, and got another 2 cows, and decided that they have 4 cows.

    The invention was the abstraction of making "2 cows" just be 2 and the abstraction of "4" to be the result.

    If you think there was no counting, or the concept of quantity or numbers before there were 'numbers' I think you need to read a bit more !!.

    And one of the links Mike points us too, is about how inventions, and discoveries never get named after the discoverer or the inventer !!.

    I could easily list 100 or more without even thinking, probably thousands if I opened a science book.

    Ohms law
    Kirchoff's law
    Newtonian physics
    Newtonian telescope
    Archemedies screw
    Hall effect
    Murphy's law
    Schrodingers cat
    schrodingers equations
    Maxwells equations
    Faraday law
    Moores Law
    Newtons Rings
    Watt steam engine
    Higgs Boson
    Yagi-Uda Array
    Kelvin Temperate scale
    Mesner effect
    Dopplor effect
    Bois's law
    Van de graff machine
    Stokes's law
    Bohr model
    Geiger Counter
    Pascals Squares
    Hertz (Hz) frequency
    Eski Diode
    Cerenkov radiation
    Brewsers law
    Benoulli's principle
    Hubble constant
    Hookes Law
    Venn Diagrams
    Darac theory
    Fourier math
    Young's modulus
    Laplace's equations
    Oersted
    Weber
    Poynting Vector
    Curie's
    Euclidean Geometry

    So to say there are few is any inventions or discoveries that are not attributed to the inventor by name. Is yet one of Mikes falsehoods I was trying to expose.

    It seems alot of the time that if Mike does not know something, he just tries to make 'informed' comment anyway, but it is clear your general knowledge is lacking if you make such claims to ANYONE who get even a basic education !!.

     

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  75.  
    identicon
    Anonymous Coward, Nov 9th, 2010 @ 7:38am

    Re: Discoveries and inventions.. Mikes examples... my analysis.

    I'll have a quart of what he's drinking and a rambling chaser please. And make it snappy - I need to lose my connection to reality before I completely lose the will to live instead.

     

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  76.  
    identicon
    Jose_X, Nov 9th, 2010 @ 8:29am

    I think it's very possible the judge is being very honest. Most parties that come before him accept that all/most patents are useful. Most that think otherwise would likely be offered a fair settlement in order to avoid the headaches of a protracted court battle. And most public companies likely realize that patents is something valuable to most of their stockholders (who own stock in other large firms which generally benefit from patents). Patents add a wild card and a reason to push their paper wealth upwards. [I'm guessing about all of this, but that's my hunch.]

     

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  77.  
    identicon
    Jose_X, Nov 9th, 2010 @ 8:44am

    Re: Discoveries and inventions.. Mikes examples... my analysis.

    >> I could easily list 100 or more without even thinking, probably thousands if I opened a science book.

    >> Ohms law
    >> Kirchoff's law
    ...

    You are aware that nothing you listed is a patented invention, right?

    Isn't it interesting that Einstein found it useful to make contributions to humanity in areas where patents are not allowed (he worked in a patent office)?

    Also, the standard for getting a Nobel Prize is very high (generally). In contrast, the standard for getting a patent in the US is remarkably low: the invention must be non-obvious to a person having ordinary skill in the art. I think the standards for passing a final examination in many colleges is higher than this patent PHOSITA bar. Let's just keep hoping the cost to get a patent continues to be so high that most college students will continue to take a pass.

    It's almost as if the really smart people contribute to science, mathematics, and similar disciplines, while a great many others are attracted to the monopolies and the low bar of patents. They can leech off the rest of us. How nice. They can just take the discoveries in science and then figure something out that is merely non-obvious. I wonder how much damage this is doing to progress by preventing so many smart people from extending the science sufficiently? Someone rushes in to get their 20 year patent and then its over. Rather than have competition take off, all these wealthy and greedy patent authors wants to hold progress up until they get their fill. [I'm not suggesting everyone who gets a patent is acting in bad spirit.]

     

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  78.  
    identicon
    Anonymous Coward, Nov 9th, 2010 @ 8:54am

    Re:

    Most that think otherwise would likely be offered a fair settlement
    I take issue with the word "fair" unless you meant it sarcastically, but I guess the rest is possible. Dangerously blinkered thinking for a judge if true though don't you think?

     

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  79.  
    identicon
    Jose_X, Nov 9th, 2010 @ 10:43am

    Re: Re:

    Yes, "fair" in contrast to a prolonged and costly battle to try and hope prove you are innocent when even the laws are stacked against you.

    The problem is that the judge appears to believe that with several people having patents to the whole, they can negotiate among themselves. Assuming the patent system is honky dory in all other ways, there is still the matter that the most profitable move isn't for these to fight each other to claim a piece of the pie from their business. The most profitable move is for them to strike a deal and then turn on the rest of the industry to stifle competition and inherit (or tax) the entire market.

     

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  80.  
    identicon
    Anonymous Coward, Nov 9th, 2010 @ 3:50pm

    Re: Re: Re:

    Yes, "fair" in contrast to a prolonged and costly battle to try and hope prove you are innocent when even the laws are stacked against you.
    If that's fair then the choice to hand over your wallet to a mugger rather than get shot is also fair!

    OK yes that's hyberbole, but giving someone the choice of handing over money now or ending up paying out 8 or 10 times as much assuming you WIN is basically a very polite and legal form of demanding money with menaces.
    Assuming the patent system is honky dory in all other ways
    That's what I mean about blinkered. Surely no matter how enthusiastic you are about patents, even the most rabid supporter wouldn't claim (or at least actually believe) it's "hunky dory" would they? If you were correct that would be seriously scary in someone who actually gets to have a say in what laws mean.

     

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  81.  
    identicon
    Jose_X, Nov 9th, 2010 @ 8:10pm

    Re: Re: Re: Re:

    I am defending the perspective the judge may likely have acquired based on what passes before him day in and out.

    Another point I didn't mention is that by settling most of the more reasonable cases ahead of time (by "reasonable" I mean of those defendants that are not so feisty or aren't obviously guilty based on the broken law), then the judge, as in the case with the lady that just got the huge copyright fine for downloading 24 songs, sees cases where the parties perhaps were violating on purpose.

    Look at the Microsoft/i4i case. i4i is not hostile to open source openoffice and they are winning against a company many dislike (for past behavior and market control, among other things). Microsoft appears to have known about the patents ahead of time (so they are not the typical case). Thus, the judge sees a small party (who may actually have planned this lawsuit with Microsoft from the get go.. though this is tinfoil territory) that is hostile largely to this huge megacompany with monopoly controls in the market place and who did know about the patent ahead of time.

    I don't think the i4i case is unique. I think most cases where there might be independent invention and what not just don't make it far into the court. The large companies, which have the dough to pursue a case trying to win on a technicality if possible, are well aware of the precedent they might set and fight it when it is valuable to them to do so in the long run. Microsoft stands to lose a great deal of anti-competitive leverage, future royalty income, and with this stock market valuation if sw pats are ruled void. They will not attack the validity of sw pats at all, for example.

    Most firms very likely can figure these patents for themselves. Most firms are not very wealthy. Ergo, most parties that do independent creation likely don't make it to these judges, at least not in numbers that represent them proportionally.

     

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  82.  
    identicon
    Jose_X, Nov 9th, 2010 @ 8:23pm

    Re: Am I an inventor?

    The courts need to hear these opinions more frequently. I plan on making my voice heard a little better in front of these judges in the future.

     

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  83.  
    identicon
    Anonymous Coward, Nov 10th, 2010 @ 1:57am

    Re: Re: Am I an inventor?

    I am defending the perspective the judge may likely have acquired based on what passes before him day in and out.
    And again I have ask... You're really comfortable with a judge who you think doesn't consider knowledge or opinion outside what gets put right in front of his nose when he's wearign a funny robe? Do judges not for example get to hear about the settlements that may have been on his list but never sees? I'd imagine even vague human curiosity would glean some details from their clerk about such things. Then there's newspapers, TV, the internet... It's not worrying to you the idea of a judge who might consider these sources irrelevant because he doesn't have to rule on them?

     

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