burdlaw 's Techdirt Comments

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  • On the post: The Fine Line Between Legitimate Think Tank And Industry Shills

    burdlaw ( profile ), 12 Nov, 2010 @ 11:55am

    Mike a shill?

    It is funny to see Mike called a shill for Silicon Valley when he is opposed to much of what they do.

    It is funnier to see him speak up and show himself a liar or a fool :
    " since intellectual property is a government-granted monopoly on an abundant resource -- or the very antithesis of a free market ideal." Actually just the opposite. Patents are inherently to things that are as scarce as substantive comments on TechDirt, namely inventions that are non-obvious to a PHOSITRA, and thus not abundant resources. Copyrights are to original works of art, not abundant resources. Trademarks are to brand names indicative of a single source, not abundant resources. Stop making deliberate false statements, Mike, you know better than that. Lieing makes you look like a shill and will confuse people into mistaking you for dishonest rather than just plain wrong.

  • On the post: Once Again, Security Company Suggests Microsoft Making Its Own Software Secure Is An Antitrust Violation

    burdlaw ( profile ), 12 Nov, 2010 @ 09:27am

    Trend Micro is trending down.

    Trend Micro is wasting time and money with that claim unless TM can show collusion between MS and one of TM's competitors, such as Symantech. Acting alone, MS can do security. TM will go down in flames on that case unless they have proof of collusion. TM might look to Avast! for a better business model, rather than taking a flyer on a longshot litigation like this. This nowhere close to the powerful antitrust claim MS beat on IE. Trend Micro is trending down toward becoming an insignificant micro-business.

  • On the post: Microsoft And Motorola Go All In With Patent Nuclear War

    burdlaw ( profile ), 12 Nov, 2010 @ 09:07am

    Re: Patent nuclear war diagram

    I take it the "harbinger of doom" legend means it is dangerous to be you and be limited to foolish one-liner insults and non-substantive quips. My recommendation to you is to take Abe Lincoln's advice: "Better to be silent and thought a fool than to speak up and remove all doubt." I am not a patent enforcement specialist, and last I checked my diplomas, I had an engineering degree, a law degree and a doctor's degree, a Mensa membership, ownership of 3 business firms, and have a number of patents of my own, all in commercial use. So, who is it again that's stupid? People who live in glass houses should not throw stones.

    "Only two things are infinite, the universe and human stupidity, and I'm not sure about the former."
    Albert Einstein

  • On the post: Microsoft And Motorola Go All In With Patent Nuclear War

    burdlaw ( profile ), 11 Nov, 2010 @ 10:31pm

    Patent nuclear war diagram

    Mike asked a sarcastic question, which got lost in all the ranting and counterranting and insults that seem so characteristic of Techdirt.

    "Just the way the patent system was supposed to work, right?"

    And, the answer is, actually, this IS the way the patent system works when patent pendency is too long and commercially important patent claims have to end up getting court interpretations rather than decent PTO determinations and deference by the Courts. Patent battle happen in areas of innovation of great commercial importance. The steamboat was the subject of intense patent battles. (Fitch was first but Fulton won because he had the commercially valuable invention.) The light bulb was the subject of intense patent battles. (Humphry Davy (an Englishman) invented it in 1809 but Edison won because his oxygen-free bulb in 1879 was the commercially valuable invention) The electron tube, oil well technology, the circuit board, bar code scanning, etc. were all subject to intense patent battles. The lawsuits sort out who has rights to the commercially valuable inventions and thus who should get rewarded for them, so that the value flows to the inventor of the valuable inventions so as to encourage valuable inventions. The suits come closer now (and hence a messy chart like that) because the pace of invention is faster today. The problem is not patents but that the system is broken because it takes so long to get a patent that industry adopts the invention before the patent covering the invention is published. We need a registration system with prompt publication and prompt post issuance examination so companies know first what is sought to be protected (so they have time to try to design around it) and second whether what is sought to be protected is going to be protected for commercially valuable inventions. That would give the patent system a shot at keeping up with the speedier pace of modern inventing so we don't have these expensive and protracted patent battles.

    There is a positive fallout to these expensive patent battles, --- it really encourages original creativity and design arounds and thus spurs creativity. The fast pace of inventing in the smart phone industry is unquestionably spurred by the desire of companies to get there first with the best ideas and lock them up with patents. Otherwise, the industry giants would just steal whatever technology they need and aim for lowest cost production by shipping jobs overseas to the lowest wage location, which we see in low technology low innovation areas like garments, utensils, and the many items you see at Dollar General, much of Wal-Mart, etc. That is what Mike's ideas will encourage and that is bad for the USA and other high wage countries and good for China and India. At least for now the Muslim countries are on an anti-modernism bent.

  • On the post: MIT's Tech Review Comes Out In Favor Of Patent Trolls

    burdlaw ( profile ), 11 Nov, 2010 @ 09:29pm

    Re: Re:

    Precisely on point petegrif. Mike should know better than to put out that BS about the US having a first to invent in the way Mike did on this thread. The US has a first to file system with an exception for a later filer who can prove invention prior to the filing date of the earlier filer coupled with due diligence from a date prior to the earlier filing to the date of filing of the later filer. There could be an even earlier inventor who chose secrecy or was not diligent, and such an even earlier inventor will lose out entirely to a subsequent inventor filer unless the even earlier filer makes his invention public by the critical date (one year prior to the filing date of the subsequent inventor filer or prior to the invention date of the subsequent inventor filer, whichever is later). Easy for uninformed readers to get this basic inventorship law confused and rant on foolishly. Complicated, but once understood the inventorship determination makes sense from a fairness standpoint. Basic 35 USC 102 law.

    Then to confuse things even more, Mike, using pronouns helps readers form misconceptions due to misassociation. Patent attorneys, especially prosecution patent attorneys, learn early on to avoid pronouns in patent applications for just that reason. Take a cue from prosecution patent attorneys and avoid the pronouns unless absolutely clear to what the pronouns refer. Otherwise it might get it confused it what it meant it should understand it to have meant it to mean.

  • On the post: Patents Create Incentives For More Patents, Not Innovation

    burdlaw ( profile ), 19 Oct, 2010 @ 11:29pm

    Handle It!

    Patents encourage innovation, both from the inventor who reaps a reward and wants to continue reaping rewards and from the potential infringer who must innovate a way around the patent or perish. For the non-innovator, patents will be a business-killer as the innovators design better and better patentable ideas and better and better ways to get around them and leave the non-innovator in the dust of obsolescense. The encouragement patents give to design-around innovation seems to be ignored in all 28 comments and the main post, but its a great economic benefit. When you get stuck in the rut of the false assumption that patents are bad, you can miss the things that are obvious to those of ordinary skill in the art of logical analysis who are travelling the high road envisioned by our founders for patents. But, hey, all you Don Quixotes on this list battle that patent windmill and knock yourself out on this list. Patents are here to stay. What you say here will not be long remembered. Patents will still be here long after you are all gone.

  • On the post: Canadian Court Says Amazon's One-Click Patent Should Be Allowed

    burdlaw ( profile ), 18 Oct, 2010 @ 06:39am

    Good for Amazon.

    "You are a murderer Mr. Riley. I'd rather be a thief than a murderer. Murderer!"
    "I do find it insulting for sw pat supporters to try and smear good people in order to try and prop up filthy actions of the very greedy."

    Two more self-contradictory statements would be hard to find. Mr. Riley is a good and honorable man who attempts to use logic and reason. Even if you disagree with him, he does not deserve that smear and making it shows your weakness, rudeness, inconsideration and disgusting stupidity. You owe an apology so you don't look so foolish.

    As to the substance of the Amazon decision, it is logical and well-reasoned, not insanity, and it IS the law now in Canada. Amazon is now the world's largest online retailer, and one-click is just one of the reasons that an Amazon shopper chooses them. (Price and selection are two others that come to mind.) Hindsight is 20-20 but the indisputable fact is that back when Amazon came out with "one-click ordering" it revolutionized online ordering. It solved a long felt need (for quicker less cumbersome online ordering), was a resounding commercial success (gave Amazon the jump on Barnes & Noble), and was recognized widely as a major improvement. Saying it would have been obvious is easy for self-aggrandizing naysayers like many on this list, especially a decade later. However, saying it is so does not make it so, and backing up the BS with proof that it was obvious at the time it was filed is much harder. The fact remains, as noted in the Canadian decision, that it was never proven obvious, despite intense examination. Possession of knowledge sufficient to make an invention even coupled with knowledge of the problem solved by the invention is not sufficient to prove obviousness. There has to be a specific suggestion in the prior art.

    Criticize the one click patent all you want, but recognize you are on the losing side, at least for now. And dear naysayers, don't infringe the now valid patent for it in Canada, which infringement will be most difficult to avoid if using one-click on a website likely to make it to Canada.

    Was this patent bad for software development? That is also a BS argument. This patent has spurred intense development efforts at getting around the patent technically, and those efforts have undoubtedly progressed the art of online ordering technology. So, rather than retarding progress, the patent HAS promoted progress of the useful arts. Allowing free piracy of inventions, on the other hand, now that would retard progress.

    However, all that being said, there is good room to argue that 20 years exclusivity is too long for a software patent. The software art progresses so rapidly that 20 years is forever (even dating from filing and even assuming a big chunk of that is lost due to PTO delays.)

    The better argument against this patent is that Amazon likely would have come up with this technology even if there were no patent, as having one-click ordering is more efficient and makes impulse buying more likely and thus generates more sales, even if the competition could copy it.

    Amazon can hardly be faulted for using the legal system to its advantage by obtaining a patent that is proving to be quite troublesome for competitors. I recall their suit against Barnes & Noble right before the 1999 Christmas season, and how disruptive to B&N that was. In fact, B&N never recovered in their online business, which Amazon now dominates. Amazon is the number one online merchant, Barnes and Noble is 42nd.
    http://www.internetretailer.com/top500/list/
    -------------
    "I don't think the problem is failure but greed because there is so much easy money at stake for some (at least before everything shakes out) if the injustice of software patents is accepted."

    Leaping logic. First assume there is a "problem". Second assume there is a "failure". Next, assume there is "easy money at stake". Finally assume there is "injustice" in software patents. Now based on the conclusory assumptions, all arguably false, conclude the reason is greed.

    Businesses are by nature "greedy". If you want to outlaw greed, you are not a capitalist or an imperialist, but rather communistic (from each according to his ability and to each according to his need). Note, the Chinese switched to a largely capitalistic system, in many ways more capitalistic and unregulated than ours, and look where they are. A greed-based economy is our system. Greed is what motivates many inventors, i.e. the thought of getting rich. Would you deprive inventors of their greedy dreams? Now, that would really put a restraint on invention that the founders did not envision when empowering Congress to provide a reward to authors and inventors in Art. 1, Section 8, Clause 8. You see the founders recognized that "Greed is good" just as is "liberty" and "the pursuit of happiness". In our system we mollify the unequal wealth greed produces with progressive taxes, welfare, and other redistributions of wealth, but we do not do it so as to remove the motivation of greed. Greed after all is the essence of the American Dream.

  • On the post: Isn't It Unfortunate That We Need A Special Mark To Indicate Works That Are Already In The Public Domain?

    burdlaw ( profile ), 13 Oct, 2010 @ 09:51pm

    public domain should not be the rule

    Copyright is automatic upon creation. The Berne Convention did away with formalities to obtain copyright. Mike you are just wrong, again. It is not sad. Authors were being ripped off by studios and publishers due to the confusion and ignorance of the notice requirement before, so copyright was made automatic to avoid authors inadvertently losing their copyright through publishing without notice. Copyright, even under current law, really only comes into play when something of significant commercial value is created and the USA is greatly rewarded under the current system, with Hollywood being a major source of foreign income to offset our growing mountain of deficits due to lack of product exports.

  • On the post: Why Aren't We Creating A National Digital Library?

    burdlaw ( profile ), 13 Oct, 2010 @ 09:38pm

    Digital Library? We have it already.

    Blogs, Facebook, Twitter, Google, Wikipedia, YouTube, P2P.

    The Digital Library is here, and in a big way. Everyone can be an author and publish internationally. We call it the Internet.

    For those really great works of great value, so is copyright protection.

    The lucrative successes of JK Rowling, Tom Clancy, John Grisham, and numerous others under copyright protection encourages new authors to dare to be great. Provided we keep their reward sufficient to keep them encouraged, and provide an avenue for those who want to publish without compensation other than notoriety, all should continue to do well in the digital world.

    Even audiobooks are are readily available (www.audible.com)

    Thomas Paine, the early 18th century pamphleteer and
    American Revolutionary hero, would be proud of where we are with our modern day equivalents to his Common Sense.

  • On the post: Red Hat Settles Patent Case With Acacia… But Won't Share The Details

    burdlaw ( profile ), 13 Oct, 2010 @ 08:32pm

    Masnik is not a tool, Masnik is just wrong

    Mike, equating a patent title to a patent claim in order to imply a valid patent is obvious. Red Hat paid because they could not bust the patent and infringed. Simple as that. Acacia by buying the patent gave the inventor or patent owner a reward and promotes the progress of the useful arts. That encourages that inventor and other inventors to invent and that promotes progress. You can't deny the patented subject matter was useful as Red Hat was apparently using it and had to settle. Good patent. Good outcome.

    I disagree that open source is a pyramid scheme were only a few benefit. All those many who use the software for free to do great things benefit and those they benefit by their work also benefit. For example I have used openoffice.org for several years and see no reason to use MS Office any longer. I benefit, my clients benefit.

  • On the post: We've Already Surpassed Last Year's Patent Totals

    burdlaw ( profile ), 07 Oct, 2010 @ 09:52pm

    Improved efficiency leads to improved issuance rate

    Nowhere is it proven that the PTO is issuing more bad patents. Only proven is that they are successfully attacking the backlog and issuing more patents. There could be a number of reasons for the increased issuance.
    1. The move to Alexandria is complete, so attention is no longer diverted to the move.
    2. The physical setup of the Alexandria location is more efficient.
    3. The Examining Corp has reduced turnover so the corps is getting more experienced and that may lead to efficiency.
    4. The PTO is finally getting up to speed with a decent prior art collection on computer-related inventions so they are not shooting in the dark like they were in the not to distant past.
    5. Applications are now being predominantly filed electronically so the Examiners do not have to mess with paper shuffling. It is much more efficient to call up a file with a few clicks than to order it and wait for weeks. It allows Examiners to now respond to many interview requests on the spot or in very quick fashion. Much more efficient.
    6. Computerized searching has replaced paper searching and is now well entrenched and understood by Examiners. Computerized searching takes a fraction of the time of paper searching, and computerized searching is more accurate since, unlike the paper file, the computer search files are always available and always complete and much more current.
    7. Search of possibly conflicting applications is now electronic and thus more efficient.

    This increased efficiency may well be due to the computerization of the PTO, the move to new more efficient facilities, and the paperless handling of applications and searches.

    Hence, CA and his optimism may be more in touch with reality than catchy slurs, innuendos, and wild speculation. Time will tell whether the affirmance rate goes up or down. KSR and Bilski suggest more cases will be invalidated than before, so if the affirmance rate stays the same or goes up, it will prove all you naysayers wrong.

    As to going to a 1790s registration system, there are good arguments why that might be a good thing if coupled with a quick exam and infringement analysis by the PTO prior to or as part of any patent infringement suit.

    And it came to pass, in the days of the rise of Japan and then China and India as superpowers challenging America that they adopted a system of delayed examination of patents and it resulted in them catching and often surpassing America in various areas of technical innovation. America took the path of making it difficult and expensive to get a patents, so creative enterprises died or moved to the Far East and India where such difficulties do not exist. Without a reward, inventors ceased to invent, the economy stagnated and jobs moved overseas. Oh....that's not really fantasy, it has happened and is continuing to happen. Unless we make patents easier to get, not harder, and easier to enforce, not harder, we will continue to see the rise of contingent litigators as they will be the only ones who can enforce the patent of an individual creative inventor who is being steamrolled by big business such as those in the Coalition for Patent Piracy and its patent deform which appears still headed for another defeat.

  • On the post: Will The Supreme Court Review Patent Invalidation Standard In Microsoft vs. i4i Case?

    burdlaw ( profile ), 02 Oct, 2010 @ 06:25pm

    Re: Re: Re: Re: Coalition for Patent Piracy & Fairness

    When you make foolish statements like "bad patents" are the problem with large patent damage awards rather than good patents successfully asserted, you can expect to get called a fool.

  • On the post: Carnival Threatens To Sue Magazine For Using Its Mascot To Illustrate Story

    burdlaw ( profile ), 02 Oct, 2010 @ 12:41am

    This reminds me of the political saying "Go ahead and call me any name you want, just use my name and use it a lot. Be sure to spell it right and publicize it widely. Then, when I protest and defend myself, I'll be even better known and even more famous." As a TM lawyer, I think Mike is basically right on this, but is missing the logic in it. Even bad publicity is often good. The suit is likely part of an advertising campaign. The fair should probably spend its money putting out ads protesting its association and claiming it is honest. All that publicity will make the fair more famous and their trademark more valuable not less. In fact, the suit is probably just that, more an advertising ploy than anything. Sometimes, if the press grabs onto a suit like this, it is huge free advertising of great value. Even if the fair loses the suit, the fair probably wins due to the publicity it brings. Most people going to a fair care whether it is exciting and fun, not whether it is corrupt. And, they are more likely to go if they know about it and there is a big fuss about it, perhaps even to see for themselves what all the fuss is about. Like rubbernecks at a traffic accident, you can tell people they should stay clear and not slow down, but they won't. They want to be there and see it and tell others they saw it. Advertising 101.

  • On the post: Will The Supreme Court Review Patent Invalidation Standard In Microsoft vs. i4i Case?

    burdlaw ( profile ), 01 Oct, 2010 @ 11:53pm

    Re: What is Mike Smoking?

    Mike has apparently been inhaling lithium smoke from your exothermic backup battery. Not to worry, we are not buying his misguided "patents are bad" nonsense either on this post or any other. MS should enforce their patents but should pay for those they infringe. R&D gets rewarded that way, not piracy.

  • On the post: Will The Supreme Court Review Patent Invalidation Standard In Microsoft vs. i4i Case?

    burdlaw ( profile ), 01 Oct, 2010 @ 11:39pm

    Re: Re: Coalition for Patent Piracy & Fairness

    Mike, you are either a fool or a liar to say that nothing in lowering the standard would impact good patents. With district judges the best of patents are at risk because they generally are neither scientists nor interested in technology cases, as you well know. Lowering the standard will merely let them dump patent cases that much easier so big business can kill creativity. It is MS that is bad not patents. Look at your other post for confirmation.

  • On the post: Will The Supreme Court Review Patent Invalidation Standard In Microsoft vs. i4i Case?

    burdlaw ( profile ), 01 Oct, 2010 @ 11:26pm

    Re: Re:

    "fair upon its face" as in seemingly good by looking at it. Cardozo is one of the most revered of Justices in history as any decent law student will attest.

  • On the post: Say It Ain't So, Woz: Steve Wozniak Says Patent Trolls Are Okay

    burdlaw ( profile ), 01 Sep, 2010 @ 11:02am

    Right On, Wozniak

    A small inventor can't sue on his own. He needs a contingent fee litigator or a Paul Allen to take on the big thieves and stop their "We're using your invention and we're not going to pay" game. Allen sure as hell does represent inventors in this case. Woz is right, so "Right on, Woz." Big guys need to either innovate or pay those who do (directly or indirectly, as here). Otherwise, small inventors never get rewarded for inventing and, by the way, they are the primary ones doing the inventing. What is needed is a more effective way to quickly resolve infringement claims at reduced cost, not to just stomp on the small guys and steal their inventions. Apparently many of you commentators just don't get it!

    Also ROFLMPPAO

    ((PP= pro patents)