The Very Basis Of Our Patent System... Is A Myth

from the time-to-rethink dept

DWG pointed us to what appears to be Mark Lemley's latest (and I'll caveat that with the point that Lemley is crazy prolific, so he may have written something else more recently) paper on the patent system, in which he explores "the myth of the sole inventor," and worries about the fact that our entire patent system appears to be based on this very myth:
The theory of patent law is based on the idea that a lone genius can solve problems that stump the experts, and that the lone genius will do so only if properly incented. But the canonical story of the lone genius inventor is largely a myth. Surveys of hundreds of significant new technologies show that almost all of them are invented simultaneously or nearly simultaneously by two or more teams working independently of each other. Invention appears in significant part to be a social, not an individual, phenomenon. The result is a real problem for classic theories of patent law. Our dominant theory of patent law doesn’t seem to explain the way we actually implement that law.
He notes that if it's true that most inventions are being simultaneously discovered by multiple parties, and we still believe in the basis for the patent system as put forth today, we should be rejecting nearly all patents filed today:
The result is a real problem for classic theories of patent law. If we are supposed to be encouraging only inventions that others in the field couldn‘t have made, we should be paying a lot more attention than we currently do to simultaneous invention. We should be issuing very few patents—surely not the 200,000 per year we do today. And we should be denying patents on the vast majority of the most important inventions, since most seem to involve near-simultaneous invention. Put simply, our dominant theory of patent law doesn‘t seem to explain the way we actually implement that law.
The paper has an extensive discussion on simultaneous invention, and just how prevalent it is -- something we've discussed before. The point raised is that nearly every major innovation has involved simultaneous invention, and appears to be the sort of "natural" progress that would happen no matter what -- contradicting the idea that patents are needed to act as incentive for the invention.
Multiple, independent studies show that what Merton calls -- singletons are extraordinarily rare sorts of inventions. Indeed, Lamb and Easton call multiple, simultaneous invention -- the pattern of scientific progress. Merton's classic work suggests that inventions occur not merely because an individual did something particularly creative or surprising, but because the time and conditions were right. There are two components to this idea. First, invention is not a discontinuity, but an incremental step in an ongoing process. Inventors are working with the tools they are given and trying to improve those tools or use them to make something new. Schoenmakers and Duysters study 157 different inventions and conclude that they are largely based on extensions of existing knowledge.

Second, invention by one and only one person or group is exceedingly rare. Far more common are different groups struggling with the same incremental problem, and achieving the same solution at roughly the same time. Ogburn and Thomas conducted the classic study here. They document 148 instances of simultaneous invention. Only rarely, they find, does an inventor come up with an idea that is not developed in similar form by others working independently. Data on litigation tells a similar story; empirical evidence suggests that between 90 and 98% of modern patent lawsuits are against independent inventors, not copiers.
It's not difficult to figure out why this is true. While patent system supporters continue to insist that patents are "necessary" as the incentive to innovate (we hear all the time in our comments how without patents, no one would bother inventing), the truth is that there are much more effective and useful drivers of invention and innovation: need and consumer demand. Other studies have shown that the major driver for invention is one's own need. That same study found that a second big driver of innovation was to get past a certain hurdle that would make an overall market bigger. In such scenarios patents don't make sense, because lots of players in the market are willing to collaborate to get past the initial hurdle. Giving a patent to a single player would hinder much of the innovation (as we've seen).

Lemley goes on to point out that this issue of simultaneous invention isn't just the aggregate of "regular patents" obscuring the big genius breakthroughs. In fact, he finds that the big breakthroughs weren't really big breakthroughs at all:
In fact, however, the evidence does not simply show that most inventions result from simultaneous independent invention. It also shows that the vast majority of the most important inventions of the past two centuries—the pioneering inventions that seem with the passage of history such radical departures from the prior art—were themselves the result of gradual social processes in which multiple inventors developed the idea at about the same time.
From there he goes through the history of a variety of such "breakthrough" inventions, and dispels the "myth of the lone genius" in each case. One by one, he goes through the steam engine, steamboats, the cotton gin, the telegraph, the sewing machine, the telephone, the light bulb, the movie projector, the automobile, the airplane, radio, television, the computer, the laser and polymer chemistry -- and in every case shows how lots of people basically came up with the same basic inventions at about the same time, often independently. In fact, sometimes the names most associated with the "invention" were stragglers, who were well aware of the work of others in the field. Lemley does admit to a few true independent inventions... but, in almost every one of those cases, the invention was more of an accident, such as with penicillin, vulcanized rubber, the pacemaker and film -- all of which resulted from accidents or mistakes, rather than any sort of "individual genius" that needed to be rewarded.

From there, Lemley shows how this basically destroys the very basis on which patent theory rests. It's supposed to be about creating the incentive for what wouldn't be created otherwise. And he notes that patents are "costly" to society, but that we as society agree to bear those costs under the (false) belief that we get these unique inventions because of it. As Lemley notes: "If we are patenting things we would have obtained without the cost of a patent, on this theory, we‘re wasting our money and probably harming rather than helping innovation downstream."

He also debunks the "ex post" theory for the patent system, which argues that even if patents aren't needed to create the incentives for the initial invention, they are then needed afterwards to incentivize the development of the invention into a product for the market. This theory falls apart quickly for anyone who understands basic free market economics: you don't need a monopoly to bring something to market. In fact, monopolies tend to hinder needed innovations. As Lemley points out, existing incentives such as brand reputation and first-mover advantage seem to suffice. And limiting a market to just a single provider, such as the one who invented it, often seems to lead to the invention being mistargeted, away from the most useful application:
Marconi thought the use of wireless radio technology would be to permit ships at sea to communicate with each other; while that is in fact a use, it is hardly the most important one. Armstrong, the inventor of FM radio, thought he had invented a way of extending the reach of AM radio and broadening its bandwidth; he missed the things (like the absence of static) that actually made FM a success. Bell described his telephone as an improvement in telegraphy, and Western Union turned down an opportunity to buy the patent for $100,000, rejecting the telephone as inherently of no value to us. IBM didn‘t foresee the market for personal computers. The transistor was originally conceived primarily as useful in hearing aids. The steam engine was developed to pump water out of flooded mines. Railroads were originally envisioned as a way of getting goods to canals, which would be the dominant form of overland transportation. The VCR was initially marketed to TV stations as a means of airing reruns. And so on.
Next up, Lemley debunks the "disclosure theory" as a basis for patents. We've gone through a variety of reasons why disclosure theory is a myth. Lemley's critique is more direct: patents don't disclose anything useful, for the most part. This was highlighted in the recent This American Life episode on patents, in which a software developer with a patent admitted that he didn't even understand what his own patent said. Lemley puts it simply:
The problem is in part one of law; the Federal Circuit has permitted a number of vague general disclosures that don‘t in fact communicate very much to anyone, and patent lawyers often have incentives to write those vague disclosures. So even those who read patents hoping to learn the state of the art would often be disappointed today.
He also discusses a few other reasons why disclosure doesn't work, such as the fact that patent applications are kept secret for 18 months, meaning any disclosure is already quite out of date, and the sheer impossibility of finding relevant patents thanks to the terrible classification system and vague wording. Instead of disclosure, reading patents is almost only done for lawsuit avoidance. As Lemley says: "If they read patents at all, it is to know what is owned, not what is known."

The final section of the paper is where Lemley suggests an alternate theory. That is, he isn't convinced that all of this means we should dump the patent system, but that we might need to rethink what patents are for and how to set them up... though even he concludes that his theory isn't entirely convincing and probably needs additional thought. His idea is that "patent races," whereby the opportunity to gain such a monopoly makes inventors rush their work to get the patent, may be a better way of viewing the patent system, with people often "racing" to beat others to the patent. He admits that this setup likely has negative consequences (many of which we see in the market today -- such as blocking out those who independently invent, but come in second or later). However, as an explanation for how the patent system works, it probably presents a much better theory than the standard theories, which he showed didn't work, earlier in the paper.

As always with Lemley, the paper is a great read. While it runs 104 pages, it's quite easy to get through. It's thorough, well-argued and well-documented. I'd be curious, though. to hear any critiques from patent system supporters. Too often when we write about these kinds of papers, we just get angry insults in the comments from patent holders, who insist that it's all just an "excuse to steal." This paper goes to great lengths to back up its arguments, and it would be nice if those who disagree with the position at least were able to do the same.


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    Anonymous Coward, Jul 29th, 2011 @ 9:40am

    With all the patent and copyright hatred on this site, here is a real-world example of how patents help society, culture and our everyday life.

    Julio Palmaz invented the stent, which has saved thousands of lives since its introduction.

    What did the fiscal rewards from his patent allow him to do? Open a vineyard (a notoriously unprofitable venture) that is leading-edge, and which now produces some of the most acclaimed wine in the world.

    As it is near his home, hopefully Mike Masnick has used some of his earnings from this website to purchase some during a nice night out at dinner.

    http://www.palmazvineyards.com/team/the_team_family_julio.cfm

     

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      Jay (profile), Jul 29th, 2011 @ 9:59am

      Re:

      Hold the phone...

      He invented an artificial tube? Are you really pushing for this when the tubes have been around far longer than Julio has been alive?

      And he's a doctor! He's made a lot more money than most people to create a vineyard on his offtime.

      Somehow I believe you're confusing successful licensing with fiscal rewards for patent bullying.

       

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        Anonymous Coward, Jul 29th, 2011 @ 10:33am

        Re: Re:

        yeah, it's just a tube. a series of tubes...

         

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          Jose_X, Aug 4th, 2011 @ 8:25pm

          Re: Re: Re:

          Why do you suppose this wasn't invented 300 years ago? Because the technology was not there to either test, analyze, or to make it successful.. or the data that helped define the problem and results from competing approaches was not known. Another possibility (or a subset) is that there wasn't such access to sophisticated information. This all relative to the number of people in a position to observe all of this.

           

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      Ninja (profile), Jul 29th, 2011 @ 10:08am

      Re:

      "Too often when we write about these kinds of papers, we just get angry insults in the comments from patent holders, who insist that it's all just an "excuse to steal." This paper goes to great lengths to back up its arguments, and it would be nice if those who disagree with the position at least were able to do the same."

      First to post was the said troll heh. He might have invented the stent but doesn't the guy who invented the tubes have rights over this considering the current patent system? Can you see the problem or are you in the category mentioned by the last paragraph of this article?

      Not to mention that being patented, the stent also failed to save many lives that couldn't afford it due to the same patent system. It also prevented other methods from flourishing because its patent must be awfully generic to the point that it may sound the pipe man can save ppl from an artery obstruction. That's just me saying but there's always the other side of the coin ;)

      In the end what's being said here is that the patent system as it is HINDERS innovation and that we should try for alternatives that allow ppl to develop stuff without fearing bullying from big patent holders and trolls.

       

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      Steve, Jul 29th, 2011 @ 10:51am

      Re: Julio Palmaz

      I followed your link, but nothing mentioned the fact they he only invented the stent in order to patent it and start a vineyard. Did I miss that paragraph? Did I miss the one where it says there were no other similar inventions made at that time? Or the one that said he worked alone without building on the ideas of others?

      The point isn't that the things that are patented aren't valuable to society. The point is that the patent and the heavy cost it places on society isn't always a necessary incentive for its creation.

       

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        Dark Helmet (profile), Jul 29th, 2011 @ 11:25am

        Re: Re: Julio Palmaz

        The best part is that he took his money he made off of a patent....and then apparently devoted his life NOT to creating and inventing, but opening a winery.

        And that, friends, was the true purpose of patents. To promote the purchase of alchohol facilities, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. May the tannens be heavy and the adjectives needed to describe the flavor be many.

         

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      Mike Masnick (profile), Jul 29th, 2011 @ 11:24am

      Re:

      Julio Palmaz invented the stent, which has saved thousands of lives since its introduction.

      What did the fiscal rewards from his patent allow him to do? Open a vineyard (a notoriously unprofitable venture) that is leading-edge, and which now produces some of the most acclaimed wine in the world.


      Two things.

      (1) You assume that he couldn't have invented the stent without a patent. That's ridiculous. Plenty of medical innovation has happened sans patents (penicillin anyone?)

      (2) You appear to be celebrating that a brilliant inventor took his talents to making alcohol, rather than continuing to save lives. Wouldn't your argument be stronger if you could show that the money he got because of the patent went into further innovations?

       

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        Anonymous Coward, Jul 29th, 2011 @ 11:34am

        Re: Re:

        When you have to go back, what, 70 - 100 years to find an example, I think you have to admit that there is way more done in the medical field with patents than without.

        It's a pretty sad argument if your only good example is that out of date (and would have been out of patent 50+ years ago anyway).

         

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          Bengie, Jul 29th, 2011 @ 11:50am

          Re: Re: Re:

          You're example of "medical field grew more during the time of patents" has no more fact than "I farted then I saw a falling star, so my farting makes falling stars!"

          Just because something happens at the same time doesn't mean there is a cause and effect relationship.

           

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          Richard (profile), Jul 29th, 2011 @ 12:27pm

          Re: Re: Re:

          When you have to go back, what, 70 - 100 years to find an example,

          That's mainly because for the last 50 - 70 years patents have been imposed upon the field.

          Pencillin is a pretty good example. Invented and deeloped in the UK without patents it was then locked up by a US team who patented wome fairly modest improvements and thereby locked out the UK team that had done most of the work.

          Want an example of a field where innovation flourishes without patents - Try formula one racing - full of innovation yet two of the leading teams (Williams and Maclaren) have filed just two patents between them in 15 years.

           

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          Anonymous Coward, Jul 29th, 2011 @ 7:04pm

          Re: Re: Re:

          Wait, so your evidence that the medical field has done more with patents than without is that patents have been around for a while? It's the status quo so obviously it's the best possible solution? That makes no sense at all.

           

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        Anonymous Coward, Jul 29th, 2011 @ 12:02pm

        Re: Re:

        Fine wine is a part of enjoying life, for many, if not most people.

        Pretty sure you're not a teetotaler yourself, actually.

        That was one of the more lame rebuttals I've ever seen you attempt to muster up.

         

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          HothMonster, Jul 29th, 2011 @ 12:20pm

          Re: Re: Re:

          you still havnt showed that he wouldn't have invented stents without patents, or that no one else independently created something similar or that it being patented has made it cheap so it saves lots of lives rather than being unduly costly and restrictive.

          Unless you thinks its obvious that the only reason you would want to save lives is so you can profit and its a once in a million idea and the poor should just die anyway

           

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          nasch (profile), Jul 29th, 2011 @ 9:13pm

          Re: Re: Re:

          Saving lives > making wine. Are you really disagreeing with that position?

           

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      Richard (profile), Jul 29th, 2011 @ 12:14pm

      Re: Julio Palmaz invented the stent

      Julio Palmaz invented the stent
      OK I looked him up - and one thing is clear>he didn't do anything remarkable when he did that. He got the patent because, as so often happens, he was one of a very small bunch of people who was aware of the problem early on. Many many people, sitting where he sat would have done the same.

      Also it is clear that patents were not on his mind early on - it was only when he sought a partner (who would expect to see a patent to hang their investment on).

      Plus - the major patent lawsuit here involved to parties cross suing each other - not what you would expect if there really was one iunique lone inventor.

      If that's your best example - well.....

       

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      Jeffrey Nonken (profile), Jul 29th, 2011 @ 3:15pm

      Re:

      So one guy invents a useful medical gadget (everyday life? How does it help me in everyday life?) and gets rich because he has a monopoly.

      Show me evidence that a) somebody else didn't invent it, or wouldn't have shortly; b) he (or anybody else) would not have invented it if he hadn't been able to patent it; c) that he actually got rich because of the patent; d) that (assuming you can support c) his getting rich from the patent did not harm anybody else (say, for example, by helping to drive the cost of materials for a procedure up with the result of either impoverishing somebody or preventing them from having the procedure, or even causing unnecessary fiscal discomfort); e) that his getting rich is actually advantageous to anybody except him, and then we'll talk.

      The fact that he makes a nice wine is great, but since I don't like wine and I consider alcoholism to be a societal ill, my appreciation of yet another variety of wine being added to the world is somewhat limited.

      The very thrust of this article is that people (usually) invent things because they fill a need and not because they intend to make money from the inventions. Your example does nothing to contradict this; it just shows that yet one more person has taken advantage of the patent system by using his useful tool to rake in a personal fortune -- after he invented it.

       

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      Anonymous Coward, Jul 29th, 2011 @ 6:56pm

      Re:

      You realized that the stent is so thoroughly based on the work of other doctors that it is literally named after someone else right?

       

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    John Doe, Jul 29th, 2011 @ 9:41am

    What about Ben Franklin?

    Ben apparently is an anomaly as he seems to have been a lone inventor. He also felt like he shouldn't patent his inventions as it would be best if everyone could benefit from them. So where was his incentive if he didn't do it for the patents?

     

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      :Lobo Santo (profile), Jul 29th, 2011 @ 9:47am

      Re: What about Ben Franklin?

      Ben did it for the chicks!

      Well, since we all know Ben Franklin was actually a time traveler from the future--he understood well the burden patents would impose and so freely offered up his "inventions" to the fledgling United States in order to aid them in getting the ball rolling.

      Of course, he only rolled out the quality stuff like University, Public Library, Fire Department, Farmers Almanac, Franklin Stove...

      Mainly though, he did it so he could get in good with Congress and become the Ambassador to France. He was a smart man who know a good thing when he saw one.

       

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    Anonymous Coward, Jul 29th, 2011 @ 9:44am

    I think he falls out the rails in a couple of places, mostly because of terms he selects that are absolute and not accurate.

    There is often no sole inventor, many of our most innovative new ideas and concept come from a group of people working together. Sometimes it is just one person coming up with a better mousetrap (and there are literally thousands of examples of that in the patent system), but often it is a group working together to accomplish something.

    There is also the pressure of the marketplace. Many developments are as a result of need. That is to say that a need is identified, and different groups and individuals work to try to find a solution to the problem. There are often multiple solutions to the same problem (see VHS and Beta, as an example), and the push to come up with the best solution is part of the process. It isn't a foregone conclusion that parallel development, or parallel discovery, would lead to exactly the same result. Sometimes it does, a there is sometimes only one viable solution. That is life.

    The other problem is the use of the word "need". Development doesn't need a patent system, but the patent system does, over the long haul, provide a structure under which research can be made, products can be developed, and then brought to market with some assurance of the time and market place exclusivity that might be required to make back the money involved. Without patents, I am sure there would still be development. But it isn't clear that investments in development would be as high, and there is no indication that the market price for the initial product would be as low as it is under the current system.

    So to look at it as an absolute need is a fail. The system doesn't need patents to work, but patents do appear to make things work better, to encourage investment, and provide a mechanism where developments can be shared through licensing which is beneficial to all parties.

    Moreover, it discourages duplicate efforts, and instead encourages parallel or alternative methods to achieve a given result.

    Further, the best results of the patent system are in the long run. If you encourage investments to be made, and things to be developed more quickly, then they come out the other end (off patent) more quickly. Less than 20 years isn't a long time in the overall scheme of things, and while it is easy to argue that all inventions would be made eventually, it appears to be a good trade to give exclusivity for a time in order to get there more quickly overall.

     

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      The Infamous Joe (profile), Jul 29th, 2011 @ 9:55am

      Re:

      The system doesn't need patents to work, but patents do appear to make things work better, to encourage investment, and provide a mechanism where developments can be shared through licensing which is beneficial to all parties.

      I disagree with much of your post, but this statement is outright ridiculous. The linked article specifically mentions that you couldn't actually create something using the words and drawings in a patent-- even if you're the one who wrote the patent!

      I also have to question how a patent on, say, streaming music, in any way is beneficial to 'all parties'. It's a patent that never should have been granted, and it's being used to extort money from a company that actually attempts to innovate. It looks, from where I'm standing, that the patent system is exactly the opposite as you have described it. So much so, that I find myself wondering if we're talking about the same patent system.

       

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        Jay (profile), Jul 29th, 2011 @ 10:04am

        Re: Re:

        It's easy. None of the ACs for the patent system read the article. They also don't read the linked articles. Since it goes against everything they believe, it's far easier to write up what they think the article is about, rather than put forth an effort to commit to a rebuttal on what the article is actually about. And since the article on patents, is far different than what the AC believe is a great write up about articles on patents, it's like asking a child the square root of pi when they've just learned that 1+1 = 11.

        There's no duplicity here. Just a look at the truth as they see it.

         

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          Prisoner 201, Jul 29th, 2011 @ 12:31pm

          Re: Re: Re:

          They are not even interested in the truth. Only to push their own opinions. Thus no need to read anything, least of all the post they are commenting on.

           

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        Anonymous Coward, Jul 29th, 2011 @ 10:42am

        Re: Re:

        The article can mention all sorts of things. A patent isn't a finished product, is it? That would obviously be too narrow of a restriction.

        From most patent descriptions I have read, I would be able to either (a) piece together what is needed to make it happen, or (b) find someone skilled in the art who could. It's not an IKEA instruction sheet, it's a patent.

        As for your question of a patent on streaming music, you have to go back to the point before the patent existed, and look at what the existing art was at the time. If all you had was super slow dialup connections, or x25 networks, and slow computer systems, a method by which to stream music would be an incredible advancement. If it got us to there being streaming music a few years sooner, we all benefit in the end.

        You have to look at most of those patents, and realize that they are near the end of their shelf life, and they were probably very innovative ideas and concepts 20 years ago.

         

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          Tony (profile), Jul 29th, 2011 @ 11:15am

          Re: Re: Re:

          Streaming music patent is ridiculous. If you ask any engineer how would he design such a system, he would come up with the contents of that patent no matter how many years ago you would've asked him that.

           

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          John Fenderson (profile), Jul 29th, 2011 @ 11:59am

          Re: Re: Re:

          As for your question of a patent on streaming music, you have to go back to the point before the patent existed, and look at what the existing art was at the time. If all you had was super slow dialup connections, or x25 networks, and slow computer systems, a method by which to stream music would be an incredible advancement. If it got us to there being streaming music a few years sooner, we all benefit in the end.

          Ahh, but it didn't.

          I was writing software to stream music (and voice) well before that patent was issued, back when all you had was super-slow modems and computer systems.

          The patent had nothing to do with the timing of the development of that technology. If anything, it may have slowed it down by preventing other people from working on it.

          (Why didn't I patent it myself? In those days, you couldn't patent software, just like you shouldn't be able to now.)

           

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      Ninja (profile), Jul 29th, 2011 @ 10:23am

      Re:

      LOL! How clueless one can be?

      Betamax vs VHS is one prime example of how patents are not needed (as they are structured today). JVC took an amazing 'risk', they decided to let ppl do whatever with their invention and took advantage of their pioneer position to create a market and crush Betamax even though their technology wasn't the best at the time (Betamax had a better image but Sony wanted full monopoly and got utterly screwed).

      Proves the point of the article, patent law is flawed ;)

       

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        Anonymous Coward, Jul 29th, 2011 @ 10:32am

        Re: Re:

        And an inferior product, also. Betamax' sound and picture was far superior to the VHS.

         

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          Nicedoggy, Jul 29th, 2011 @ 12:27pm

          Re: Re: Re:

          Have you ever compared the two side by side on two video monitors?

          You wouldn't notice the difference.

          Betamax was superior but only slightly and it was beaten by S-VHS in the end.

          Search for "How Beta and VHS Technically Compare...." in the page
          http://www.videointerchange.com/video-history.htm#BetaMax

           

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          Any Mouse (profile), Jul 29th, 2011 @ 1:17pm

          Re: Re: Re:

          And yet it lost in the marketplace. Why was that? Because it was more expensive, and less useful. That begs the question of which was truly the inferior product.

           

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            HothMonster, Jul 29th, 2011 @ 2:44pm

            Re: Re: Re: Re:

            betamax standard was only an 1hr so not long enough for movie rentals

            vhs had better marketing

            but mainly it was the porn industry, as always, porn went VHS (i think sony was blocking them from beta) the market followed.

            You want a new piece of tech to flourish? find out why the porn industry would want it and get them to use it.

             

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    Hulser (profile), Jul 29th, 2011 @ 10:03am

    Simultaneous invention

    I don't see how simultaneous invention invalidates the basis of the patent system. One could argue that the very reason that there are more than one team of people working on an invention is that there is a patent system in place which incentivizes the first inventor. "Why are there so many simultaneous inventions? Because the patent system ensures that the first team to solve the problem gets a truckload of money! Duh."

    The later points made in the article about how the patent system isn't (as) required seem to be much more compelling than the "simultaneous invention" point. Maybe he defends the idea of simultaneous invention in more detail in the full article, but based on the information quoted here, it just seems like it's too easilly dismissed by the IP maximalists.

     

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      The eejit (profile), Jul 29th, 2011 @ 10:15am

      Re: Simultaneous invention

      Okay then, how about this solution:

      If you file a suit, you have to actually prove that:

      a) It was not independently invented;
      b) It would directly harm you (as an actual person, not a corporation-person);
      c) It must have a direct element of provable harm to your economical/technological status (e.g. patenting haptic feedback for touchscreens). NOTE: this does not include being undercut for a similar quality item (HTC, Samsung, Nokia springs to mind).

       

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      Richard (profile), Jul 29th, 2011 @ 12:18pm

      Re: Simultaneous invention

      I don't see how simultaneous invention invalidates the basis of the patent system.

      Simply because patents are not supposed to be obvious - and if more than one person comes up with the idea at the same time there is a prima facie case that the idea IS obvious.

       

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        Hulser (profile), Jul 29th, 2011 @ 12:53pm

        Re: Re: Simultaneous invention

        Simply because patents are not supposed to be obvious - and if more than one person comes up with the idea at the same time there is a prima facie case that the idea IS obvious.

        Here's an example. I'm an algebra teacher and I give a test with a single problem. 80% of the class gets the right answer. Was that answer obvious? No. It took a base level knowledge of algebra and the correct implementation, but it was not obvious.

        Don't get me wrong. I'm not saying that an obvious idea should be patentable. I'm just saying that to many people, especially IP maximalists, simultaneous invention doesn't logically equate with obviousness.

        For example, the theory of evolution may seem obvious to us now, but it wasn't at the time that it was formulated simultaneously by Darwin and Wallace.

        "All truth passes through three stages. First, it is ridiculed. Second, it is violently opposed. Third, it is accepted as being self-evident."
        - Arthur Schopenhauer

         

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          HothMonster, Jul 29th, 2011 @ 2:38pm

          Re: Re: Re: Simultaneous invention

          "Here's an example. I'm an algebra teacher and I give a test with a single problem. 80% of the class gets the right answer. Was that answer obvious? No. It took a base level knowledge of algebra and the correct implementation, but it was not obvious."

          Its not about it being obvious its about it "being obvious to an expert in the field" so the patent system is suppose to take the base knowledge and training as a given, its just that the people looking at the patents can't be an expert in all fields and they are usually written in such a convoluted fashion that not even an expert can tell you what it means.

          "For example, the theory of evolution may seem obvious to us now, but it wasn't at the time that it was formulated simultaneously by Darwin and Wallace.

          "All truth passes through three stages. First, it is ridiculed. Second, it is violently opposed. Third, it is accepted as being self-evident."
          - Arthur Schopenhauer"

          We are not talking about philosophy and scientific theory. We are talking about product and method. The article argues that the majority of things that are invented are done so by people practicing in their field and/or solving common problems.

          Did you know there are hundreds of patents for making toast?

           

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            Hulser (profile), Jul 29th, 2011 @ 3:25pm

            Re: Re: Re: Re: Simultaneous invention

            Its not about it being obvious its about it "being obvious to an expert in the field" so the patent system is suppose to take the base knowledge and training as a given

            And how does this contradict my example? It should go without saying that students taking an algebra test would be trained in algebra enough to solve the problem. I'm simply pointing out an example where an expert can arrive at a solution that is not necesarilly obvious.


            We are not talking about philosophy and scientifictheory.

            I was merely illustrating that the issue of obviousness crosses different categories.


            Did you know there are hundreds of patents for making toast?

            And how does this relate whatsoever about my point about obviousness? I did not say that the principle of obviousness was being applied correctly by the US patent office. It most certainly is not. What I said was that simultaneous invention would not be an effective argument for IP maximalists.

             

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              Hothmonster, Jul 29th, 2011 @ 4:58pm

              Re: Re: Re: Re: Re: Simultaneous invention

              ? Your example was 80% of them got it right. I would consider that fairly obvious. If you compare it to something patentable, like streaming music, and say 80% of the people working in the industry could come up with this on their own, that should be unpatentable. You dont?

              What are you arguing? That its not obvious unless 100% of people know it already? They don't mean obvious like you don't have to figure it out, or like you were taught it sometime previously.

              Obvious in this case means if any expert(not anyone in the field, experts) was asked how to do it, he could figure out a way using similar methods, or with some of the same puzzle pieces.

               

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                Hothmonster, Jul 29th, 2011 @ 5:16pm

                Re: Re: Re: Re: Re: Re: Simultaneous invention

                maybe if its simpler if i do it like you:

                "And how does this contradict my example?"

                Students aren't experts, the answer should be obvious if you asked a bunch of algebra teacher though, unless 80% of those kids are geniuses.

                "I was merely illustrating that the issue of obviousness crosses different categories."

                It was obvious to other experts when they looked at the research. That's why ts the most popular theory because people who are experts in the field look at the research and reach the same conclusion, the obvious one. From what I remember of the history Darwin and Wallace and few others were sharing the research that let them arrive at this conclusion. Patenting research is a whole other topic.

                "What I said was that simultaneous invention would not be an effective argument for IP maximalists"

                It should be because then who should hold the patent? The one who filed it first? Why can't they be forced to find the best way to use it, or sell it, or whatver to see who succeeds? When does it become open for the third guy who figures it on his own without ever hearing of the first 2? Why can't the market decide which version they want? It stupid to say the first guy to figure something out can sue anyone who figures it out after him without using or knowing about the original guy.

                 

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                  Hulser (profile), Jul 29th, 2011 @ 6:05pm

                  Re: Re: Re: Re: Re: Re: Re: Simultaneous invention

                  Students aren't experts, the answer should be obvious if you asked a bunch of algebra teacher though, unless 80% of those kids are geniuses.

                  If a student is instructed intensely on the principles of algebra during a class, this is similar to -- not exactlyt the same! -- as someone who has been instructed intensely over several years in a technical field and who is now considered an "expert". The similarities are blatantly obvious. Sheesh. What is it with people who don't understand analogy?


                  From what I remember of the history Darwin and Wallace and few others were sharing the research that let them arrive at this conclusion.

                  Unsure of point.


                  It should be because then who should hold the patent?

                  Did you accidentally start responding to someone else's comment? What little sense I can make of your reply doesn't appear to relate to anything I've written.

                   

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                    Anonymous Coward, Jul 29th, 2011 @ 7:17pm

                    Re: Re: Re: Re: Re: Re: Re: Re: Simultaneous invention

                    We understand your analogy, your analogy is just counter to your actual point. If 80% of the people with equal training arrive at exactly the same solution the solution is obvious. Obvious doesn't mean 'instant' or 'effortless' it means 'easily discovered.' If 80% can independently arrive at the solution it's 'easy to discover' the solution.

                     

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                      Hulser (profile), Jul 29th, 2011 @ 7:56pm

                      Re: Re: Re: Re: Re: Re: Re: Re: Re: Simultaneous invention

                      If 80% can independently arrive at the solution it's 'easy o discover' the solution.

                      So, basically you're saying that algebra is easy. I'm not quite sure how to react to that other than...no it isn't. There may be a straighforward process by which you can instruct someone how to solve algebra problems, but that doesn't mean that they are inherently easy. Using my example above, programming a computer is hard. It takes a certain kind of personality to really embrace, training, and experience to master. Yet once you've reached the point where you are an "expert", certain principles -- such as streaming -- are "obvious" and "easy" to formulate. Writing a program to stream an mp3 is not easy. Coming up with the idea for streaming -- to someone who is an expert programmer -- is obvious and easy. That's the difference.

                       

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                        Anonymous Coward, Jul 29th, 2011 @ 8:28pm

                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Simultaneous invention

                        Patents are supposed to be made based on what is and is not obvious after taking training into account. So after we take training into account yes, an algebra problem that 80% of those with training can answer currently has an obvious solution. A problem that 80% can answer correctly given their training is an easy problem. It is easy. It really doesn't matter at all that algebra is 'difficult' from the perspective of a layman.

                        "Yet once you've reached the point where you are an "expert", certain principles -- such as streaming -- are "obvious" and "easy" to formulate....
                        Coming up with the idea for streaming -- to someone who is an expert programmer -- is obvious and easy."

                        This is precisely why software should not be patentable. If it's 'obvious and easy' to an expert programmer but still then it should not be patentable. The fact that it requires a lot of work is completely irrelevant because the standard isn't 'new' and 'time consumer' it's 'new' and 'not obvious to other skilled in the same field.'

                         

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                        Hothmonster, Jul 29th, 2011 @ 11:49pm

                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Simultaneous invention

                        "So, basically you're saying that algebra is easy."

                        I guess I am. If you make up a sentence and then quote me, but if you read my post no its not what I said. You said:

                        "Coming up with the idea for streaming -- to someone who is an expert programmer -- is obvious and easy."

                        that is what i said. You were making some argument that if it takes training and practice its not obvious. Here I can quote you I don't need to make shit up:

                        "I'm an algebra teacher and I give a test with a single problem. 80% of the class gets the right answer. Was that answer obvious? No. It took a base level knowledge of algebra and the correct implementation, but it was not obvious."

                        Do you even know what your point is anymore? It seems here it was that if only 80% of experts can get it right its not obvious. But now its: there is a difference from something being obvious to everyone and being obvious to experts? NO SHIT!

                        You seemed to be claiming that simultaneous invention is not a good reason to argue against the patent system because its only obvious if you know what your talking about. Of course, but if its obvious to people who know what they are talking about it shouldn't be patentable. Your analogy was a group of students taking a test and 80% of them getting it right and you said that wasn't obvious because they had to be students to be able to take the test. Of course obviousness doesn't mean some uneducated bushman will know how to do it. Obvious in this context means obvious to an expert in the field.

                         

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                          Hothmonster, Jul 29th, 2011 @ 11:52pm

                          Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Simultaneous invention

                          lol sorry, i didnt notice the other guy. But thats not what he is saying either. Disregard my comments about misquoting me.

                           

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            Richard (profile), Jul 29th, 2011 @ 3:39pm

            Re: Re: Re: Re: Simultaneous invention

            "Here's an example. I'm an algebra teacher and I give a test with a single problem. 80% of the class gets the right answer. Was that answer obvious? No. It took a base level knowledge of algebra and the correct implementation, but it was not obvious."


            To someone skilled in the field ANY algebra problem is obvious. I recall an anecdote about a Maths professor in a lecture:

            Professor "it is obvious that.."
            Student "excuse me sir, Is it?"
            Professor - leaves the room for 10 minutes - then returns

            Professor "Yes it is obvious"

             

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              Hulser (profile), Jul 29th, 2011 @ 6:17pm

              Re: Re: Re: Re: Re: Simultaneous invention

              To someone skilled in the field ANY algebra problem is obvious.

              Call me a geek, but I LOLed at the joke. As for this statement, the reason that it's wrong is the very basis of my example/analogy. You can be equiped with all of the tools necessary to solve a problem, but still be required to apply that knowledge to come up with solution to the problem. Another example: if you were to have asked a computer programmer a few years ago how they would allow people to listen to music on a smart phone, they'd probably pause for a moment and describe the concept of streaming. They would not need ten minutes, days, or weeks to come up with the principle of streaming. It would be...obvious. This is materially different from solving an algebra problem.

               

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      nasch (profile), Jul 29th, 2011 @ 9:25pm

      Re: Simultaneous invention

      One could argue that the very reason that there are more than one team of people working on an invention is that there is a patent system in place which incentivizes the first inventor.

      Actually that makes it more risky to try to innovate, because if someone else beats you by a day, your investment becomes worthless. Without a patent system, you can still compete in the market even if you don't get there first.

       

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        Anonymous Coward, Jul 30th, 2011 @ 5:47am

        Re: Re: Simultaneous invention

        "your investment becomes worthless"

        It's worse than that. You can be up for a combined legal and licensing bill of considerably greater than the money you put into making your independent invention in the first place. That can put your innovative company into a financial death spiral. You have no way of knowing whether a patent troll is going to sue you or not. If one does, you do not know how much it will cost you. Financial planning gets to be just about impossible.

        People thinking of starting a business see these large risks of unknown magnitude, then decide it is all too hard. So they do not start the business. Result: damage to the economy and higher unemployment. That is a cost of the patent system. Even though the cost is hidden, it is still real and large.

         

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      Scammaj12, Jul 30th, 2011 @ 12:36pm

      Re: Simultaneous invention

      "One could argue that the very reason that there are more than one team of people working on an invention is that there is a patent system in place which incentivizes the first inventor."

      "In fact, sometimes the names most associated with the "invention" were stragglers, who were well aware of the work of others in the field."

      If the patent system was an incentive for the "first inventors", wouldn't you see the first inventors claiming the patent?

       

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    Lord Binky, Jul 29th, 2011 @ 10:15am

    They never saw it coming......

    I think we need to take all this Pro-patent stuff to an extreme really fast, then force as many countries to adopt it. After which the US will disband it's patent system. This will create a major swell in productivity and increase the US economy. Just look at how england handled the Singer sewing machine, it was the country that didn't respect patents that came out ahead.

    I think the patent system is flawed in relation to human nature. People (in general although especially inventor types) will spend more time finding a solution to make something better/easier than they will ever spend on the task/item. At the same time, people will spend more time crying about a "stolen" idea than they would just coming up with a better idea. For the most part human nature is going to point out that people are a complicated kind of lazy, but none the less lazy.

     

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    Jeff Rowberg (profile), Jul 29th, 2011 @ 10:36am

    Patents and other IP failures relating to fundamental property rights

    This reminds me of the Ten Myths About Patents article from a month ago, which deals with many of the same points in a nice short summary.

    Going even deeper though, I recently read a very well-written article on the fundamental problem with patents and other intellectual property "rights" in light of a pure understanding of physical property rights, written by Stephan Kinsella, a patent lawyer of 16 years:

    Intellectual Property and Libertarianism (mises.org)

    The basic claims go like so:

    1. Ownership can come about only by contractual transfer or homesteading (first claim).

    2. Intellectual "creation" is not sufficient for ownership, since if I carve a statue out of your hunk of marble without your permission, it's still yours (though my work may make it more valuable to you).

    3. Intellectual "creation" is not necessary for ownership, since if I carve a statue out of MY hunk of marble, it was already mine (though carving may add value, again, it doesn't affect ownership).

    Then with those three points, he comes to this conclusion:

    Copyrights pertain to "original works," such as books, articles, movies, and computer programs. They are grants by the state that permit the copyright holder to prevent others from using their own property — e.g., ink and paper — in certain ways.

    Patents grant rights in "inventions" — useful machines or processes. They are grants by the state that permit the patentee to use the state's court system to prohibit others from using their own property in certain ways — from reconfiguring their property according to a certain pattern or design described in the patent, or from using their property (including their own bodies) in a certain sequence of steps described in the patent.

    In both cases, the state is assigning to A a right to control B's property: A can tell B not to do certain things with it. Since ownership is the right to control, IP grants to A co-ownership of B's property.

    This clearly cannot be justified under libertarian principles. B already owns his property. With respect to him, A is a latecomer. B is the one who appropriated the property, not A. It is too late for A to homestead B's property — B already did that. The resource is no longer unowned. Granting A ownership rights in B's property is quite obviously incompatible with basic libertarian principles. It is nothing more than redistribution of wealth. IP is unlibertarian and unjustified.


    The whole article is worth reading, since it provides a lot more thorough reasoning than my summary and excerpt here. He also addresses the pragmatic approach (ignoring said property rights for the good of society) and why it doesn't make sense either.

     

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      Chosen Reject (profile), Jul 29th, 2011 @ 11:28am

      Re: Patents and other IP failures relating to fundamental property rights

      I agree totally. Humans have always copied. In fact, life copies. That's all life is, so it's no wonder that we copy. Sure, we also modify our copies. Sometimes in bad ways, sometimes in weird ways, sometimes in neutral ways, and sometimes in better ways, but the root is that everything is at the most a modification of a copy, at the least a straight up copy.

      Given all of that, copyrights and patents take away rights. We've always had the right to copy, until a patent or copyright comes along, and suddenly we lose those rights in favor of, as you say, "the state ... assigning to A a right to control B's property". We grant to A the right to infringe our rights.

      If there is a moral component to copyrights and patents at all, it is that they are immoral.

       

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    Anonymous Coward, Jul 29th, 2011 @ 10:38am

    The new patent "reform" going through washington right now will make the current system worse, as it will grant patents to the first person who files the patent, rather than first to invent it.

    Seriously, what are the politicians thinking? Are they even thinking at all, or just being paid by companies to push these laws?

     

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    sheenyglass (profile), Jul 29th, 2011 @ 10:45am

    More Cowbell!

    I would like to have seen a more extensive discussion of the commercialization aspect, particularly the role patents play in attracting the kind of investment that allows a firm to turn the invention into an innovative product. The historical example method he uses is effective at demonstrating commercialization is possible without patents and that there are instances where patents impede commercialization, but it is not well suited to evaluating the effect of patents on commercialization in general. That would require a broader study of various innovations and how they were brought to market.

    Plus its interesting that

     

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    out_of_the_blue, Jul 29th, 2011 @ 10:51am

    Er, I've held all along that we should support the individual inventor.

    I wouldn't allow corporations to hold patents (obviously a collective effort). Nor would I allow a patent on anything which doesn't have a working physical model (so not software patents). Those easily and simply rule out most of the current mess. Most "invention" is just problem solving: given goal X, how can it be done? Obviously, the /goal/ is the important part. The gov't does that by throwing money at problems, and where the solutions can be had by brute force, it works. -- On other hand, before you become too elataed: most on this line doesn't amount to anything because dreamers who come up with goals and those who authorize projects are ninnies without practical sense.

    Anyway, even if a myth in current practice, the system OUGHT to promote the few with guarantees of exclusivity. The patent system was never made for corporations, that's what has changed.

     

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      HothMonster, Jul 29th, 2011 @ 2:46pm

      Re: Er, I've held all along that we should support the individual inventor.

      "I wouldn't allow corporations to hold patents"

      If steve jobs held all of Apples patents and passed them on when he retired, what would be the difference?

       

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    jeathosa, Jul 29th, 2011 @ 11:27am

    White people will spend their time sitting down with other white people figuring out how to make their time sitting down with other white people more productive, drafting blanket policies that enable more white people to do "work" in a chair.

     

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    Anonymous Coward, Jul 29th, 2011 @ 11:41am

    When is somebody going to try and patent a study?

     

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    Anonymous Coward, Jul 29th, 2011 @ 11:45am

    I have always had great difficulty trying to figure out what it is about Mr. Lemley that leads some people to believe his writings to be important and/or insightful.

     

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      HothMonster, Jul 29th, 2011 @ 12:36pm

      Re:

      you know; facts, persuasive argument, research with supporting evidence

      just little things like that

       

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      Prisoner 201, Jul 29th, 2011 @ 12:41pm

      Re:

      PEBKAC

       

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      Jeff, Jul 29th, 2011 @ 1:12pm

      Re:

      Probably because he can articulate his thoughts and ideas in more than one sentence? Perhaps because he adds personal insight and backs his ideas up with facts? Perhaps because he has the balls to put his name on his work and then put it out there for shills like you to disagree with?? Nah that'd be too simple.

       

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        Anonymous Coward, Jul 29th, 2011 @ 7:43pm

        Re: Re:

        I take it you are not very familiar with Mr. Lemley's published work, and there is a fair chance that the field of patent law is not your area of expertise.

         

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      Anonymous Coward, Jul 29th, 2011 @ 7:31pm

      Re:

      I could say the same about you but I don't even know your name...

       

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      Mike Masnick (profile), Jul 29th, 2011 @ 9:59pm

      Re:

      I have always had great difficulty trying to figure out what it is about Mr. Lemley that leads some people to believe his writings to be important and/or insightful.

      Then I can only assume you have zero experience in the world of intellectual property. Lemley is one of the foremost thinkers and writers in the field, well respected by many judges, and isn't just an academic by a practitioner as well.

      On top of that his writing is clear, easy to understand and his points are well documented and backed up with facts.

      You on the other hand fail to point out a single thing you disagree with, but instead focus on a weak anonymous attack on Mr. Lemley. Guess who's more credible to... um... everyone?

       

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        Anonymous Coward, Jul 30th, 2011 @ 9:25am

        Re: Re:

        Mr. Lemley's (and he is not alone in this) work in large measure relies upon federal statutoty and case law. Curiously, I do not recall reading in his work any significant mention of the Code of Federal Regulations, The Manual of Patent Examining Procedure, agency-internal guidance, etc....much of which is also "law" and must be examined so that the entire relevant body of law can be considered.

        Perhaps I expect too much, but if one is inclined to speak to the law, it does seem to me that they should speak to all of it, and not just to some easily identified piece parts.

         

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          nasch (profile), Jul 30th, 2011 @ 9:42am

          Re: Re: Re:

          Still waiting for you to refute anything he said...

           

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          Mike Masnick (profile), Aug 1st, 2011 @ 12:13am

          Re: Re: Re:

          Mr. Lemley's (and he is not alone in this) work in large measure relies upon federal statutoty and case law. Curiously, I do not recall reading in his work any significant mention of the Code of Federal Regulations, The Manual of Patent Examining Procedure, agency-internal guidance, etc....much of which is also "law" and must be examined so that the entire relevant body of law can be considered.

          Perhaps I expect too much, but if one is inclined to speak to the law, it does seem to me that they should speak to all of it, and not just to some easily identified piece parts


          I love how you always do this. Rather than *EVER* point to a single thing that you actually disagree with, you do the pretentious asshole move of saying "curiously, I do not recall him mentioning some random source that I prefer..."

          Put up or shut up. If Lemley got something wrong, say it. Otherwise, admit you don't have the goods. And remember, last time I challenged you on something like this, you eventually (after many back and forth comments) you admitted you didn't have the goods. So it's best to come out up front and admit that.

           

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    Stephan Kinsella (profile), Jul 29th, 2011 @ 2:44pm

    SEe also Eric Johnson's work

    Mike, along these lines see Eric Johnson, Intellectual Property's Great Fallacy, arguing: "Intellectual property law has long been justified on the belief that external incentives are necessary to get people to produce artistic works and technological innovations that are easily copied. This Essay argues that this foundational premise of the economic theory of intellectual property is wrong. Using recent advances in behavioral economics, psychology, and business-management studies, it is now possible to show that there are natural and intrinsic motivations that will cause technology and the arts to flourish even in the absence of externally supplied rewards, such as copyrights and patents."

     

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    Trish, Jul 29th, 2011 @ 3:25pm

    patent up

    i find it pretty deplorable that people don't even own their own thoughts, can't use them in any meaningful useful way, and then others will tell them it's 'because that would be stealing'. I could think something up, and then someone else could tell me my hard work was for nothing because 'I'm just an idea thief'. Human knowledge itself is being stolen, as in noone else can use it, because of the way the law is setup. the politicians, the people who make the decisions, who are they? Any dude who can win a popularity contest and say a lot of words that will appeal to the lowest common denominator of the people? I wonder if democracy is really sane when half the voting population (and their politicans) is stupider than average.

     

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    Jeffrey Nonken (profile), Jul 29th, 2011 @ 4:48pm

    Connections

    James Burke's TV series "Connections" (and also "The Day the Universe Changed") shows pretty well all the points made in this article: that inventions tend to happen when people are trying to solve problems; that they aren't usually done by lone inventors toiling etc.; that multiple people sometimes invent the same thing (or similar things) simultaneously; that inventions aren't made from whole cloth, but are the product of prior solutions to other problems; that inventions are often created to solve one problem, but end up being used to solve an entirely different problem.

    He also sometimes mentions when two people (or groups) came up with the same idea, but one gets to market first; also at least one example of two groups coming up with different solutions to the same problem about the same time. (In this case the cheaper, faster method won.)

    Or a method of getting your oven hot enough to melt steel being borrowed from glassmakers. I guess some folks will say he "stole" that idea and claim that glassmakers were put out of business because they didn't get paid... ignoring the fact that it advanced the steel industry (and clockmaking, I think it was, and by extension, navigation). Among other things.

    Or how about how motion pictures started as a bet as to whether a horse's feet all simultaneously leave the ground during a gallop?

    None of these would ever have been invented if it hadn't been for the patent system! ... Oh, wait.

     

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    jonerik, Jul 29th, 2011 @ 9:39pm

    Patent myths

    This line of thought echoes the logic of Thurman Arnold while he was for awhile a judge on the DC Court of Appeals. But Arnold used the idea that a patent must reflect the "flash of genius" doctrine to uphold the Commissioner of Patents at the time. The Patent Commissioner had rejected patent applications of Bell Labs technically on the grounds that it reflected prior art but on a sort of policy basis that patents that were generated by "patent factories" like the corporate Bell Labs were inherently suspect in meeting the "flash of genius" requirement. I have little doubt that this opinion was somehow related to the Dept. of Justice decision that year to file an antitrust suit against AT&T to require divestiture of Bell Labs for "monopolization" using this manufacture of patents theory.

    Anyway, Lemley is looking at problems with the patent law that doesn't require legal theory to fix. Just as with the terrible US Supreme Court decision a few years ago that refused to invalidate the Copyright Law extensions to Mickey Mouse a few years, there was a very valid constitutional and policy basis to invalidate these extensions as law. A majority of the Court, which is politicized of course, wouldn't bite.

     

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    Old Hoya, Jul 29th, 2011 @ 9:56pm

    I see...

    So then companies like Nokia and Motorola have done nothing for society at all and do not deserve their patent portfolios?

    The lazy bastards can't make phones more cheaply than ZTE and Huawei so screw them! They all deserve to lose their jobs -- all they did was invent the bloody technology!

    Qualcomm better watch its back, I guess.

    I see, I see...

     

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      nasch (profile), Jul 29th, 2011 @ 10:26pm

      Re: I see...

      So then companies like Nokia and Motorola have done nothing for society at all

      Where exactly did you see that written? I must have missed it.

       

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    Gene Cavanaugh (profile), Jul 30th, 2011 @ 9:54am

    Patenting again

    Lemley really shoots himself in the foot here:
    "Lemley does admit to a few true independent inventions... but, in almost every one of those cases, the invention was more of an accident, such as with penicillin, vulcanized rubber, the pacemaker and film -- all of which resulted from accidents or mistakes, rather than any sort of "individual genius " that needed to be rewarded."
    OOPS! Goodyear accidentally discovered vulcanization, but spent a LOT of money testing it and making it useful - money that HE said he would not have spent had he not had patent protection.
    The discoverer of penicillin (name escapes me) got a lot of money from (essentially) VCs to test it thoroughly - money he would NOT have gotten without patent protection.
    I believe the same is true of the other inventions, but I know less about them - however, there is every reason to believe that NONE of them would have moved forward if the technology could have been stolen and exploited by others!

    Even so, most patents today should never have been granted. I spend more time explaining to potential clients why they may not want to apply for a patent than otherwise.

    Also, I absolutely refuse to do software, business, or so-called "broad" defensive patents.

     

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      nasch (profile), Jul 30th, 2011 @ 2:02pm

      Re: Patenting again

      Goodyear accidentally discovered vulcanization, but spent a LOT of money testing it and making it useful - money that HE said he would not have spent had he not had patent protection.

      But he also claimed it wasn't an accident. And there was another guy who patented it around the same time. Wikipedia also indicates that "Goodyear did not profit from his invention."

      http://en.wikipedia.org/wiki/Vulcanization#History_of_vulcanization_of_rubber

      The discoverer of penicillin (name escapes me) got a lot of money from (essentially) VCs to test it thoroughly - money he would NOT have gotten without patent protection.

      I think Fleming never patented penicillin. The only patent I can find reference to is for a method of mass production, granted in 1948, 20 years after Fleming's accident.

      there is every reason to believe that NONE of them would have moved forward if the technology could have been stolen and exploited by others!

      Every reason, huh? But you haven't named any, other than your belief that they were all patented and wouldn't have been developed without patents. Not very convincing.

       

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    Gene Cavanaugh (profile), Jul 30th, 2011 @ 10:11am

    Arguments against patenting

    "Second, invention by one and only one person or group is exceedingly rare. Far more common are different groups struggling with the same incremental problem, and achieving the same solution at roughly the same time. Ogburn and Thomas conducted the classic study here. They document 148 instances of simultaneous invention. Only rarely, they find, does an inventor come up with an idea that is not developed in similar form by others working independently. Data on litigation tells a similar story; empirical evidence suggests that between 90 and 98% of modern patent lawsuits are against independent inventors, not copiers."

    Good argument against patents AS THEY EXIST TODAY, doesn't even consider patents as the founders intended.
    Also, a little misleading: merely suing an inventor does not mean an ORIGINAL inventor, more likely to mean a COPIED invention.

     

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      nasch (profile), Jul 30th, 2011 @ 2:06pm

      Re: Arguments against patenting

      Good argument against patents AS THEY EXIST TODAY, doesn't even consider patents as the founders intended.

      I think you may have completely missed the point of the article. The patent system the founders intended was based on the idea of a lone independent inventor coming up with something nobody else would have, and needing protection to develop it. The fact that almost all important inventions are arrived at by multiple groups almost simultaneously throws the entire system into question. Which, since you're a patent attorney, I can certainly understand you would not be happy with. :-)

      Also, a little misleading: merely suing an inventor does not mean an ORIGINAL inventor, more likely to mean a COPIED invention.

      It says "against independent inventors, not copiers" (emphasis mine).

       

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    Vic Kley, Jul 30th, 2011 @ 2:23pm

    Myth of Simultaneous Invention

    Myth of the sole inventor should in fact be the myth of simultaneous invention!

    If one reduces the issue to those inventions that are special or basic then such invention is very rare.

    It is common that people perceive the appearance of simultaneity when in fact some key fact or idea has propagated (within minutes) to the secondary inventors. In many cases MERELY THE FACT THAT ANOTHER HUMAN HAS MASTERED THE PROBLEM is sufficient to induce a follow-on solution set.

    It is also quite common that such simultaneity is in fact a fraud by indirect or directly related parties.

    I have made a short response directly to Mark. I would be happy to make a much longer response in a scholarly fashion but sadly I lack the resources and support of Stanford or for that matter any outside support. I am free but with very limited resources.

    This all still leads us to the absolute need in society to reward those weird, and socially difficult creative types that willingly create our open technological economy.

    The present America Invents bill relies on rigid corporate structures to COMMAND creativity- which refuses to be commanded.

    Rigid control can drive engineering and manufacture but not new creation. Germany in WWII never invented a single new thing, not one- rigid Nazi heirarchy did produce quick engineering results (with a little help from the fear of being posted to the Russia front), and slave labor producing amazing manufacturing results).

     

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      nasch (profile), Jul 30th, 2011 @ 5:32pm

      Re: Myth of Simultaneous Invention

      Nobody's expecting a scholarly treatise, but do you have any references at all for your claims?

       

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      Mike Masnick (profile), Aug 1st, 2011 @ 12:14am

      Re: Myth of Simultaneous Invention

      A lot of claims without any evidence to back it up. Lemley backed his up.

      Let's see you do the same.

      It is also quite common that such simultaneity is in fact a fraud by indirect or directly related parties.


      Prove it. Charging people with fraud is a big claim. Let's see you back that up.

       

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    Vic Kley, Jul 30th, 2011 @ 4:16pm

    Gross Misstatement by Lemly's 104 page Apologia for Overfed, and Overpriced Lawyers

    Gross Misstatement by Lemly's 104 page Apologia for Overfed, and Overpriced Lawyers

    "The theory of patent law is based on the idea that a lone genius can solve problems that stump the experts, and that the lone genius will do so only if properly incented. We deny patents on inventions that are "obvious" to ordinarily innovative scientists in the field. Our goal is to encourage extraordinary inventions – those that we wouldn’t expect to get without the incentive of a patent."

    The Lemly quote above has been highlighted because it is entirely and utterly without merit. "Ordinarily innovative scientists in the FIELD" , yet the field gets narrower and ever narrower, while the power of search engines gives the examiner ever wider and wider scope to try to knit disparate fields and elements of invention together in rejecting genuine inventions. When the scope of field is reasonably limited the number of breakthrough inventions one can count grows very quickly.

    Lemly, like many if not most students of law, simply cannot imagine the act of creation, or the energy among others it induces. Lemly wants everything (except his work) to be the product of a committee in the world of invention and technology. Creativity is real and normally the product of ONE mind, the denial of creativity and originality is the province of companies, committees and governments. It is the defense of denial and theft by large interests that is the great engine of employment for Lemly and other lawyers.

    Vic Kley

     

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      Derek Kerton (profile), Aug 1st, 2011 @ 4:47pm

      Re: Gross Misstatement by Lemly's 104 page Apologia for Overfed, and Overpriced Lawyers

      "It is the defense of denial and theft by large interests that is the great engine of employment for Lemly and other lawyers."

      I would think that the existence of the Patent system is the engine of employment for countless persons in the legal field. The abolishment of software patents would greatly reduce the jobs for lawyers.

      Please compare the number of IP attorneys or lawsuits in the fashion industry versus the smartphone sector.

       

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    staff, Aug 1st, 2011 @ 8:14am

    myth

    "myth"

    You are missing the point. It is a question of property. According to Thomas Jefferson the right of inventors and authors to their discoveries and creations is irrefutable. To deprive one of their property which is the anchor to their livelihood is to deprive them of life itself.

    If large multinational infringer and Chinese interests don't pay you to write your rubbish, they should.

    Please see http://truereform.piausa.org/ for a different/opposing view on patent reform.
    http://docs.piausa.org/

     

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      Derek Kerton (profile), Aug 1st, 2011 @ 4:49pm

      Re: myth

      Ron...is that you?

      Where are your many titles?

       

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      nasch (profile), Aug 1st, 2011 @ 7:50pm

      Re: myth

      According to Thomas Jefferson the right of inventors and authors to their discoveries and creations is irrefutable.

      Your interpretation is... interesting. "It has been pretended by some, (and in England especially,) that inventors have a natural and exclusive right to their inventions..." (emphasis mine) -Thomas Jefferson

      To deprive one of their property which is the anchor to their livelihood is to deprive them of life itself.

      Patents and copyrights are not property.

       

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    El Flash, Oct 2nd, 2011 @ 9:38am

    Patent System Too Much of A Possibly Good Thing

    I'm dubious of the idea that the government granting a long exclusive license to the "owner" of an idea has any merit at all if looked at from a public benefit perspective, but I'm willing to entertain the idea that a limited license can get an idea to market and the public can eventually benefit by the full disclosure of the idea. That is not what is happening. Patents are written to obscure ideas, not make it possible to easily implement them; read any modern patent and see for yourself. The licenses granted are for far too long and tricks are used to extend them far beyond the useful life of the idea, so that they actually stifle industry's ability to use the invention without paying prohibitive fees.
    Here's a prescription to fix the problems:
    1. Severely limit the value of patents by reducing their life to a reasonable period, say 10 years, of which 5 years is an exclusive right, followed by 5 years during which anybody can license.
    2. Limit the license fees obtainable to a small percentage of the original sale price of a sell-able product, shared equally by all patent claimants, say 2%. If my product sells for $10, all patent claimants on that product may share equally 20 cents. The manufacturer can put that money in escrow and the patent claimants can fight over it.

    I think these changes, implemented by Congress, would do much to reduce the flaws in the system, while still keeping some semblance of the requirements in the Constitution.

     

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    Anonymous Coward, Oct 12th, 2011 @ 7:42pm

    Try "A Critique of Mark Lemley's 'The Myth of the Sole Inventor." The authors, John Howells and Ron D. Katznelson, pretty much refute nearly every single point made by Lemley. The most key point the authors refute is Lemley's assertion that simultaneous invention is common. Lemley's paper is pretty much shredded after that point.

     

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      Mike Masnick (profile), Oct 12th, 2011 @ 11:02pm

      Re:

      Try "A Critique of Mark Lemley's 'The Myth of the Sole Inventor." The authors, John Howells and Ron D. Katznelson, pretty much refute nearly every single point made by Lemley. The most key point the authors refute is Lemley's assertion that simultaneous invention is common. Lemley's paper is pretty much shredded after that point.

      Sure. Go ahead and read it. Then read Lemley's response:

      http://ipwatchdog.com/2011/10/09/defending-the-myth-of-the-sole-inventor/id=19648/

      O ne of the two papers ends up being shredded. And it's not Lemley's.

       

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    Anonymous Coward, Oct 13th, 2011 @ 11:19am

    Thank you for pointing to Lemley's response.

    I note that the many posts with facts are taking issue with Lemley's supposed facts. His cites for simultaneous invention are mostly relating to non-patentable discoveries. One of the two cites blithely points to the "simultaneous" invention of the telephone, which has been addressed by two different studies showing that Elisha Gray did not invent Bell's telephone, and when he finally demonstrated one, it was based on Bell's principles, not his own.

    I believe Lemley also erred in citing Watt, since he then has a diatribe about Watt locking up technology, but does not provide a single piece of evidence supporting simultaneous invention. Is Lemley's paper about simultaneous invention, or a diatribe about possible effects of patents.

    Lemley then tries a snow job by claiming that rejection of about half of all patent applications is the ultimate evidence of simultaneous invention. Except, that is plain wrong. Patents are frequently abandoned for economic reasons that have nothing to do with other inventions. Patents are often rejected on patents that have long expired. Lemley cannot just make a statement about the relevance of the rejections of patent applications without a study of those applications and whether the rejections were the result of simultaneous invention or for other reasons.

    Lemley also completely avoided the legitimate counter viewpoint that the lack of interferences, which fundamentally would indicate simultaneous inventions, and a similar lack of litigation, which he at least needs to put into context.

    Yes, a paper is being shredded, and cracks are appearing in Lemley's.

     

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