The State Of Innovation Is Not Defined By The State Of Our Patent Trolls

from the separating-out-the-realities dept

I had been debating whether or not it was worth actually writing anything about President Obama's State of the Union address earlier this week but had mostly decided to skip it. It was full of vague promises -- some of which sounded good, but most of which were woefully short on details. I was slightly surprised that President Obama did not make any real reference to intellectual property laws as being a key driver of innovation -- though, from his comments in the past, it appears he does believe that to be the case. The one time he mentioned any sort of intellectual property by name -- patents, in this case -- he did make a statement that made no sense and I debated writing up something on it.

However, as Dave H informs us, Matt Yglesias did the work for me, and wrote basically the post I would have written about why President Obama's line about patents in the State of the Union was misleading. It's the only mention of patents or copyrights at all, and the statement is simply:
"No country has more successful companies, or grants more patents to inventors and entrepreneurs."
This makes the same fundamental mistake that we discussed in which USPTO boss David Kappos seems to think that China deciding to get more patents means that it's being more innovative. Yglesias makes the point quite well:
The bigger issue is that the quantity of patents the government hands out to inventors and entrepreneurs is measuring two different things simultaneously. One is how many new ideas do inventors and entrepreneurs send in patent applications for. The other is how loosey goosey does the patent office get about what it deems patentable...

To offer an analogy that I actually think isn't stretched at all, but 21st century standards Isaac Newton should have patented calculus ("A Method For Using Fluxions To Determine Instantaneous Rate of Change") and then waited patiently until Leibniz published his superior method and then sued the pants off anyone who tried to take a derivative without coughing up a hefty license fee. But would that world have been a better place? The issue isn't really so much the rents that Newton would have thereby extracted (I'm not going to begrudge one of human history's greatest geniuses a fortune) but the barriers to entry that would have been created as a secondary consequence. A world in which smart people have access to the stock of existing human knowledge and are free to apply it in new ways is a world of competition and innovation. A world where you need to consult with an army of lawyers first isn't. If you ask the people who care most about promoting entrepreneurship in America about this they kind of shrug, concede that the patent system is hopelessly broken, and then confess to despair that it can or will be fixed.

In a broader sense, a lot of our politics is about symbolism. And symbolically intellectual property represents itself in the contemporary United States as a kind of property--it's right there in the name. But it's better thought of as a kind of regulation. Patents and copyrights are modeled, economically, the same as you would model any state-created monopoly.
Excellent point. The one thing I'd add is that if the number of patents is really being used as a metric for innovation or competitiveness, then that's easy to fix: just approve lots more patents (oops that's being done). Taken to a logical extreme, you just approve every application that comes in and you'll clearly have more patents than everyone else (and it will likely encourage even more people to "patent" stuff, knowing that they'll get such a monopoly, right?). So, under that scenario, you'll certainly have more patents than anyone else in the world... but would it make the economy more innovative? I don't think anyone could reasonably argue yes. The number of patents measures the number of patents. It does not measure innovation or competitiveness, and it's wrong, misleading and dangerous to imply otherwise.


Reader Comments (rss)

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  1.  
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    Anonymous Coward, Jan 27th, 2011 @ 8:52am

    From what i can determine - Obama talks the talk but does not walk the walk. When I put aside his populist tone and obvious charisma I don't really think, at this point, that I have too much faith in what he says.

     

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  2.  
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    Anonymous Coward, Jan 27th, 2011 @ 8:52am

    he one thing I'd add is that if the number of patents is really being used as a metric for innovation or competitiveness, then that's easy to fix: just approve lots more patents (oops that's being done). Taken to a logical extreme, you just approve every application that comes in and you'll clearly have more patents than everyone else

    Oh look, the Masnick Effect neatly applied. You are still trying to find ways to blame the patent office for approving more patents last year. Any data you can stick to it, and innuendo you can use, you are all over it.

    Excellent work!

     

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  3.  
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    teka (profile), Jan 27th, 2011 @ 9:01am

    Re:

    Oh look, the Anonymous Troll Effect neatly applied. You are still trying to find ways to blame the messengers for being worried about the rate of patents last year. Any "data" you can smear to it and any innuendo you can use to discredit someone who disagrees with you, you are all over it.

    Excellent work!

     

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  4.  
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    :Lobo Santo (profile), Jan 27th, 2011 @ 9:15am

    Re:

    1) Name one president (aside from Roosevelt) who, in the last century, "walked the walk."

    2) How many of the people you've named had assassination attempted/achieved upon them while in office?

     

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  5.  
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    Anonymous Coward, Jan 27th, 2011 @ 9:19am

    Re: Re:

    weak.

     

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  6.  
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    Anonymous Coward, Jan 27th, 2011 @ 9:23am

    Perverse incentives

     

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  7.  
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    Liz, Jan 27th, 2011 @ 9:29am

    Re: Re:

    1) Name one president (aside from Roosevelt) who, in the last century, "walked the walk."

    Just one? OK, Harry S. Truman.

     

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  8.  
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    Anonymous Coward, Jan 27th, 2011 @ 9:37am

    Re: Re: Re:

    If they double the amount of patents does that mean that you double the amount of innovation?

    If artists choose not to copyright their work does that mean that creative innovation is dropping?

     

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  9.  
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    Danny, Jan 27th, 2011 @ 9:38am

    Re:

    Ummm.... who else would one look to about the increasing quantity but decreasing quality of patents being issues other than the people that grant them.

    Its not like we're talking about blaming the cops for a lack of protection from crime. Because with or without cops there will still be crime.

    On the other hand when the problem is that there are lots of overly broad patents being issues left and right it makes sense to look at the officiating body that issues those patents. If there was no officiating body set up to issue them there there simply be no patents. Meaning that the Patent Office should be held at least somewhat responsibe for the terrible mess that we call the patent system these days.

     

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  10.  
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    Anonymous Coward, Jan 27th, 2011 @ 9:43am

    Re: Re: Re: Re:

    If patents are a measure of innovation, does it mean that many weak patents are better than one good patent (as if there was such a thing)?

    Does that mean that a society of geniuses would be composed of millions of people that patented stuff like, I dunno, OS shutdown, as opposed to a handful that invented warp travel and the cure for hunger?

     

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  11.  
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    Anonymous Coward, Jan 27th, 2011 @ 9:47am

    Re: Re:

    No, you missed the point. What Mike Masnick is doing is back filling his "the patent office is issuing junk patents" theory now by suggesting that somehow maybe the President wanted it that way, that it's an administration thing to make the US look like it is busy. It's tin hat stuff at it's finest.

    The number of patents issued could be almost anything. Considering the last few years were "light" on patents issued, there is potential that during the year, many of the applications for the previous few years were finally completed, and issued. It isn't unusual for a patent to take a couple of years from application to approval. The high number of patents in a single year may be as a result of years of applications all coming to a conclusion at the same time. We don't know, there is no effort to find out, just vague attempts to justify the desired conclusion ("the patent office issues junk patents" by molding the "facts" to meet that conclusion. Adding the spice of a secret government plan to out innovate the world only adds to the wild nature of the claims.

    That in a nutshell is the Masnick Effect.

    As a side note, I have to laugh when Mike also insists on trying to correct the President (and the goverment as a result) as to the meaning of innovaton. Apparently Obama doesn't think that "innovation by paint color" is really innovation at all.

     

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  12.  
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    :Lobo Santo (profile), Jan 27th, 2011 @ 9:47am

    Re: Re: Re: Re: Re:

    Hey man--whoever invented the cure for hunger was a frigging genius!

    Seriously, before somebody invented food things were really bad.

     

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  13.  
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    asa, Jan 27th, 2011 @ 9:49am

    Japan is more innovative than the U.S. in conventional high-tech technology sectors, the U.S. just boosted its numbers by pressuring other countries to accept biotech, software and business method patents.

     

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  14.  
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    Anonymous Coward, Jan 27th, 2011 @ 9:53am

    Re: Re: Re:

    You are to the Masnick as the Masnick is to the president.

     

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  15.  
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    Prashanth (profile), Jan 27th, 2011 @ 10:04am

    You know, the Newton analogy isn't all that far off - as it happens, when Leibniz came up with his calculus, British institutions of higher learning essentially banned all calculus or related math that wasn't Newton's (as Newton was their favorite son in terms of mathematics). Newton's derivative notation only worked up to third time derivatives and was only useful for physical quantities like position and energy. Plus, the dot notation used didn't at all give the impression of a rate of change over time. Leibniz's method was far more widely applicable and introduced the notion of the derivative of a resulting change in a dependent variable divided by a small change in an independent variable. This allowed the differential notation to flourish and for mathematics in general to flourish in continental Europe. By contrast, mathematics stagnated in Britain for at least another century until British teachers could finally accept Leibniz notation as equally valid.

     

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  16.  
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    Anonymous Coward, Jan 27th, 2011 @ 10:14am

    Re: Re: Re: Re: Re:

    You make the false assumption that you can patent the painfully obvious, things that clearly already exist, etc. You can try, but prior art will kill you.

    Innovation (according to techdirt) is anything that advances things even slightly. Better paint, nicer graphics, and extra knob that allows you to control some non-essential function are all innovations. Taking something that was in a square box and packaging it in something that looks like a cow turd is innovation, especially if the cow turd lights up or glows or something like that.

    It seems that Mike knows better than the government (and the President) when it comes to innovation. Bring on the glowing cow poop!

     

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  17.  
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    Anonymous Coward, Jan 27th, 2011 @ 10:31am

    Let's also take the discussion one step further:

    The State Of Innovation Is Not Defined By The State Of Our Patent Trolls

    The title implies that all that is patent is patent by trolls. It is presumptuous, and rather misleading. Is there any evvidence that in the 200,000 patents issued last year that all of them are from patent trolls? A vast majority? Some? Nope, there is no indication of this, just a presumption.

    Further, anyone who pays attention to those companies considered patent trolls will realize that they don't typically troll from brand new patents, rather they use broader, older patents (typically 10+ years old, some very close to their stale dates) to try to turn them into money. They don't generally create new patents to troll, they buy or obtain old ones.

    There is no proof that the current patents are issued to patent trolls, and tehre is also no indication that any of the patents from 2010 are currently being used by so called trolls.

    Misleading all down the line.

     

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  18.  
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    AR (profile), Jan 27th, 2011 @ 10:43am

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

    Just a question for you. Didnt someone patent a rock in a box and market it as a pet? I think they even made a lot of money with it too. If someone would buy a rock maybe you should patent the glowing cow pie.

     

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  19.  
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    asa, Jan 27th, 2011 @ 10:44am

    Patent trolls usually spam business method and software patents. Biotech patents are somewhat absurd because they patent genes that were found in organisms found in nature. They are not inventions, but rather scientific discoveries. They just happen to be repackaged with the process of adding these genes, which is the same for all organisms, to other organisms. I suspect the same can be said about chemical patents.

     

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  20.  
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    Hephaestus (profile), Jan 27th, 2011 @ 10:46am

    Re: Re:

    "1) Name one president (aside from Roosevelt) who, in the last century, "walked the walk.""

    Well I know for a fact Franklin D. Roosevelt didn't walk the walk ... wasn't he in a wheel chair?

     

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  21.  
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    Chris Rhodes (profile), Jan 27th, 2011 @ 10:50am

    Re:

    The title implies that all that is patent is patent by trolls.

    No it doesn't.

    It "implies" exactly what it says; patent trolling is not the same as innovation. Do you disagree?

     

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  22.  
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    Anonymous Coward, Jan 27th, 2011 @ 11:05am

    Re:

    Yep, no possible way that 10 years from now, current patents will be used by patent trolls in future lawsuits.

    I also see no proof that current patents being issued, will be 10 years old, 10 years from now. *pulls wool over eyes*

     

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  23.  
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    I-blz, Jan 27th, 2011 @ 12:04pm

    Re: Re: Re:

    You're good this week, hephy. I think that's the third new keyboard you owe.

     

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  24.  
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    Anonymous Coward, Jan 27th, 2011 @ 12:35pm

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

    Sorry, I am unable to find a patent for the pet rock. Would you care to help us with a patent number? You might be confusing it with a trademark on the name or a copyright on the "instruction manual" that came with it.

    Enlighten us. :)

     

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  25.  
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    Anonymous Coward, Jan 27th, 2011 @ 1:00pm

    Re: Re:

    Read again. The president states that the high number of patents is proof of innovation. Mike says that innovation is not defined by patent trolls, so he is implying that the innovation the President is pointing to is just the work of patent trolls.

    All this without any idea who got the patents.

    Pure patent trolling appears to be non-innovative, however it does put money in the hands of inventors (who sell their patents), which could have the effects of financing their future innovative work. For inventors, the patent buyers are just another source of income, a way to turn a patent that is often near expiration or without practical application that they can find and turning it into money to finance their next great idea.

    WIth about 7 million patents on the books, a shockingly small number (from what I read here, I am guessing a couple of hundred) are being used by the trolls. The apparent success rate of the patent office seems high if you look at things in that way.

    I see no proof one way or the other that any of the patents issued in 2010 are being actively used by patent trolls. Do you?

     

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  26.  
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    Patrick, Jan 27th, 2011 @ 1:30pm

    Re: Re:patent trolling is not the same as innovation. Do you disagree?

    Saying one thing is or isn't the "same as" another thing is overly simplistic. However, I recently made the argument that patent enforcement, even in situations of ex post independent creation plays a role in promoting innovation in my post Licensors vs Implementers: Who’s Really Promoting Innovation.

     

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  27.  
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    Lawrence D'Oliveiro, Jan 27th, 2011 @ 5:18pm

    The US Can Become The Intellecual-Property Landlord Of The World

    With manufacturing and other “productive” industries increasingly moving offshore, the US can boil itself down to just two economic sectors:

    1. Consumers, and
    2. Patent trolls.

    That way, the country can still make money off the rest of the world’s desire to sell goods to US customers.

    How’s that for a plan?

     

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  28.  
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    AR (profile), Jan 27th, 2011 @ 10:19pm

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

     

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  29.  
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    AR (profile), Jan 27th, 2011 @ 10:59pm

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

    From what I can find Gary Dahl, from Rock Bottom Productions, may not have actually gotten a patent on the pet rock (couldnt find the actual number at USPTO). If not my mistake.

    BUT, in the link provided it shows that he could have actually gotten a design patent and/or a utility patent for it.

    So Ill repeat, you should get a patent (design or utility) for the glowing cow pie.

    So I hope this enlightens you :P

     

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  30.  
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    Anonymous Coward, Jan 28th, 2011 @ 5:10am

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

    See, I looked hard too, and found nothing. It seems that the "pet rock patent" is one of those copyright abolishers rally cry points that just isn't real, really is just a thing of legend.

    I am sure however that he got a trademark on the name, or copyrighted the care book that came with it, etc.

    He may have been able to get a design patent for his box (unlikely though, as it was specifically a common pet carrier box design), other than that, there really isn't much to work from.

     

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  31.  
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    Not an electronic Rodent, Jan 28th, 2011 @ 6:28am

    Re: Re: Re:

    Read again. The president states that the high number of patents is proof of innovation. Mike says that innovation is not defined by patent trolls, so he is implying that the innovation the President is pointing to is just the work of patent trolls.
    Did Mike kill your puppy or something? It's not an implication of anything it's a demonstrably true statement that counting the number of patents has little or no relationship to the amount of innovation. The only way it implies what you suggest is if you have something personal in doing so, and it seems to be aimed specifically at Mike hence my question.

    If there is any implication at all in it (and this is just as likely to be my personal interpretation), it's that the president has been mislead by people such as yourself that a patent in and of itself is a good thing no matter what.

    Again, there's no suggestion that innovation isn't occuring, nor that there are not patents that cover genuine invention. It is however a fact that there are patents that contain no innovation and so a fact that "number of patents != amount of innovation".

     

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  32.  
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    Not an electronic Rodent, Jan 28th, 2011 @ 6:39am

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

    Here's a fantastically valuable patent for you. Completely innovative, a huge step forward in design unlike anything else on the market.

     

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  33.  
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    AR (profile), Jan 28th, 2011 @ 6:39am

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

    Not really, another article (if you want me to find it again I will) also stated that if he were to make specific changes to the rock (ie. cutting, painting, whatever) that is also patentable.

    Now as for what I was telling you, If you make the cow pies glow that IS patentable.

    The point is real. Look at the link I posted and it clearly states that you CAN get a Patent on something like putting a rock in a box.

    I almost forgot. another site I found also stated that because something like the pet rock is a fad, that getting a patent might be a waste of time because by the time the knock offs come out the fad has run its course. but you can still get one.

    Dahl sold well over 5 million rocks@ $3.95 each. So my point was right on the money (pun intended)

     

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  34.  
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    Not an electronic Rodent, Jan 28th, 2011 @ 7:39am

    Re: Re: Re:

    You do love to come up with some vague innuendo then base an entire argument against Mike on it don't you?

    OK the facts show that since 1963 the number of patent grants has approximately quintupled (that's x5)
    The facts show that since 1963 the number of patent applications has also approximately quintupled
    A quick look shows that both values have constanly increased over time and that it is the falls that are rare so suggesting that a high number is somehow an abberation is patently (sic) false.
    A quick graph shows that around 1997 there is a marked increase in both applications and grants with applications especially trending upwards much more sharply. That would lead me to ask what might have changed or happened in 1997 or thereabouts to cause that. Anyone know?

    Interestingly the facts also show that the amount of US patent grants to patents with an origin outside the US has increased from 18% of the total to 50% of the total grants over that time. That would lead me to speculate that if in fact such numbers were a measure innovation, the primary innovation would be from foreign rather than domestic source. I would then start wondering why that might be. I'm sure many in here will have an opinion on that.

    So much for facts.

     

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  35.  
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    staff, Jan 28th, 2011 @ 8:25am

    truth about trolls

    Call it what you will...patent hoarder, patent troll, non-practicing entity, etc. It all means one thing: “we’re using your invention and we’re not going to pay”. This is just dissembling by large infringers to kill any inventor support system. It is purely about legalizing theft.

    Prior to eBay v Mercexchange, small entities had a viable chance at commercializing. If the defendant was found guilty, an injunction was most always issued. Then the inventor small entity could enjoy the exclusive use of his invention in commercializing it. Unfortunately, injunctions are often no longer available to small entity inventors because of the Supreme Court decision so we have no fair chance to compete with much larger entities who are now free to use our inventions. Worse yet, inability to commercialize means those same small entities will not be hiring new employees to roll out their products and services. And now some of those same parties who killed injunctions for small entities and thus blocked their chance at commercializing now complain that small entity inventors are not commercializing. They created the problem and now they want to blame small entities for it. What dissembling! If you don’t like this state of affairs (your unemployment is running out), tell your Congress member. Then maybe we can get some sense back in the patent system with injunctions fully enforceable on all infringers by all inventors, large and small.

    For the truth about trolls, please see http://truereform.piausa.org.

     

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  36.  
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    weneedhelp (profile), Jan 28th, 2011 @ 10:20am

    I threw up in my mouth a little

    In the coming year, we'll also work to rebuild people's faith in the institution of government. Because you deserve to know exactly how and where your tax dollars are being spent, you'll be able to go to a website and get that information for the very first time in history. Because you deserve to know when your elected officials are meeting with lobbyists, I ask Congress to do what the White House has already done -- put that information online. And because the American people deserve to know that special interests aren't larding up legislation with pet projects, both parties in Congress should know this: If a bill comes to my desk with earmarks inside, I will veto it. I will veto it. (Applause.)- Then I turned it off.
    http://www.techdirt.com/articles/20110124/17422712805/obama-nominates-former-top-riaa-lawyer-t o-be-solicitor-general.shtml

    Yeah OK Barry.

     

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