"What can IV guarantee?" It's called "indemnification" - it's an insurance policy. In exchange for me an inventor paying you for a sweet of licenses, you agree to be liable on my behalf for any failure on your part to deliver/license a *complete* suite of patents. There's an indemnification clause in nearly every contract in existence.
"Why companies pay IV / how can I claim that IV is encouraging innovation" - Whether or not you define it as extortion, it's simply a cost of doing business, and it's currently the law. Whether or not the law is broken, IV offers a more efficient & economical method to work within the legal system as it exists today. It encourages innovation because it will either reduce the cost or reduce the risk for an inventor to bring a product to market.
So yes IV as it stands today is not making things better for inventors than patent reform would. But as an inventor - whether you're an individual or a $1B company - you don't possess the power to change the patent system. To be innovative, you have to find the most economical way possible to conduct business within the existing system, and that's what it appears the IV business model attempts to do.
"Even if you did license from them, you could still be liable for infringing just about anything that someone else holds"
So IV is going to miss significant licenses every time? The holder of the exception is going to sue every time? First, you're attacking whether they're doing a good job at the business model without addressing whether the business model works in the first place. Besides, you should *not* be liable. It's a simple matter of contracting. If IV purports to license you a suite on which you can market an invention, then any smart contractor would include an indemnification or guarantee. You don't pay for a license and absorb the risk at the same time unless you're an idiot - the model wouldn't be economical if that were the case.
No one is saying the patent system isn't broken. But you're attacking IV for creating an economical, potentially innovation-enhancing, service based on the way the laws are structured today. I jest in saying your perspective stifles innovation (people shouldn't find away to work with the laws just because the laws aren't perfect?). But your problem is not with IV or other trolls or NPEs, your problem is with the structure of the system that enables them. Write to your senator.
Generally, good points. However . .
"IV has collected over a billion dollars so that it can get more patents. They make no products. They apparently don't funnel ideas to anyone else who makes products."
No. If you read the HBR article, IV has collected well over a billion dollars. The $1B in question is licensing revenue - which they've received (ostensibly) by funneling ideas to others who make products.
Now, for the academic purposes of understanding what does or doesn't promote/stifle innovation, let's leave the evidence and ethical question of Myrvold and IV out of it (ie. let's assume the case that they're actually doing what they say):
If they're in the business of collecting bundles of inventions (buying the fence along with the house) in certain markets, shouldn't they be able to obtain those more efficiently than individual inventors or even possibly Fortune 100 firms? An individual innovator who's worried about the aforementioned "patent thicket" - is it not more economical for him to license the bundle from IV, in order to protect and market his innovation, than to contact all the individual patent holders in that technology area and work purchase (or license) agreements individually? The original inventor/patenter receives compensation for his invention and a practicing entity obtains license more economically, and IV earns a fee by efficiently enabling the transaction.
(1) Academically, is this not a feasible model to stimulate innovation?
(2) Separately, discourse on whether IV is actually doing this . . .
Mike, this is one of the few you're way off on. MANY songs have similar chord progressions - they don't call a genre 3-chord rock for nothing.
But this suit involves two songs that are note-for-note exact for bar after bar, and one was written right after the other was released. I love your articles. But in a rare event, your analysis here is not even relevant.
Saying there's not copyright infringement because more than one person does the pachelbel canon chord progression? Incredibly weak argument.
I think you're sort of missing the point. Of course I wouldn't be happy if someone reorganized then sold pages of what I created - but when you're in a court of law, your "happiness" factor is irrelevant.
The courts have spent a lot of time evaluating the purposes and effects of providing someone legal protection from copying, and they've established standards that one needs to meet in order to establish "copying" and for one to be reimbursed for it. The problem is, whether JK is right/wrong/good/bad/whatever, her crying in court is so inappropriate as to be sad - and it's a testament to the weakness of her case that she had to go that far.
Just trying to take a more novel approach on this - but if JK's issue was with the *quality* of the work, wouldn't trademark possibly be a more effective argument? I'm rusty on TMs, but could a legal argument for "dilution" have a place here? With all the focus on branding these days, I'd think there would be some more nuanced TM concepts that could be employed here (I'm recalling now that the effect of a dilution claim was being, well, diluted by the courts).
I understand that it's difficult to attack a written work with a trademark slant - but if enough of the key names, places, etc are registered and or contribute to the value of the mark/brand of Harry Potter, couldn't a case be made?
Not looking for flames here, because I know this is a stretch - but just trying to think creatively and see how others might approach it . . .
I'm rusty on my patent law, but Hughes/Boeing probably wouldn't have been able to sue a gov't institution like NASA for 'infringement' - isn't there some sort of march in right that allows the government the ability to practice a parent without it being infringement? Someone help me here . . .
. . . that is, of course, if NASA was in fact actually using the patented method - we're not talking like Boeing has a patent on every type of slingshot and orbiting method. Even if NASA was using the method and didn't have the march in rights, there might be a difficulty of proving infringement. Leave it to someone like SES to admit to it . . .
guess this is a case of it being better to ask for forgiveness than for permission
I'm late to this thread, but am shocked that after 52 comments (at my time of responding) nobody has drawn the obvious analogy.
First, this is not patenting physics, it's patenting a method. Thanks to MLS in comment #45 for making this clear (and I'm suprised that Mike Masnick missed that in the first place). Second, and what's particularly disturbing about Mike (and everyone else so far) missing this is there was a nice dissertation posted just yesterday on this site about the patenting of methods: http://www.techdirt.com/articles/20080409/011406799.shtml
Though not software nor a business method, the Boeing patent in question is clearly analogous. I don't desire to argue either way on this situation (largely because I'm an employee of Boeing and have both pro and con views of the situation), but the analysis (of whether or not the patent in question should be valid) could render much more insight if one employed the analyses Mike suggested yesterday.
Techdirt has not posted any stories submitted by Jeff Engelhardt.
Re: Re: Re: Re: Informative, but again one-sided
"What can IV guarantee?" It's called "indemnification" - it's an insurance policy. In exchange for me an inventor paying you for a sweet of licenses, you agree to be liable on my behalf for any failure on your part to deliver/license a *complete* suite of patents. There's an indemnification clause in nearly every contract in existence.
"Why companies pay IV / how can I claim that IV is encouraging innovation" - Whether or not you define it as extortion, it's simply a cost of doing business, and it's currently the law. Whether or not the law is broken, IV offers a more efficient & economical method to work within the legal system as it exists today. It encourages innovation because it will either reduce the cost or reduce the risk for an inventor to bring a product to market.
So yes IV as it stands today is not making things better for inventors than patent reform would. But as an inventor - whether you're an individual or a $1B company - you don't possess the power to change the patent system. To be innovative, you have to find the most economical way possible to conduct business within the existing system, and that's what it appears the IV business model attempts to do.
Re: Re: Informative, but again one-sided
"Even if you did license from them, you could still be liable for infringing just about anything that someone else holds"
So IV is going to miss significant licenses every time? The holder of the exception is going to sue every time? First, you're attacking whether they're doing a good job at the business model without addressing whether the business model works in the first place. Besides, you should *not* be liable. It's a simple matter of contracting. If IV purports to license you a suite on which you can market an invention, then any smart contractor would include an indemnification or guarantee. You don't pay for a license and absorb the risk at the same time unless you're an idiot - the model wouldn't be economical if that were the case.
No one is saying the patent system isn't broken. But you're attacking IV for creating an economical, potentially innovation-enhancing, service based on the way the laws are structured today. I jest in saying your perspective stifles innovation (people shouldn't find away to work with the laws just because the laws aren't perfect?). But your problem is not with IV or other trolls or NPEs, your problem is with the structure of the system that enables them. Write to your senator.
Informative, but again one-sided
Generally, good points. However . . "IV has collected over a billion dollars so that it can get more patents. They make no products. They apparently don't funnel ideas to anyone else who makes products." No. If you read the HBR article, IV has collected well over a billion dollars. The $1B in question is licensing revenue - which they've received (ostensibly) by funneling ideas to others who make products. Now, for the academic purposes of understanding what does or doesn't promote/stifle innovation, let's leave the evidence and ethical question of Myrvold and IV out of it (ie. let's assume the case that they're actually doing what they say): If they're in the business of collecting bundles of inventions (buying the fence along with the house) in certain markets, shouldn't they be able to obtain those more efficiently than individual inventors or even possibly Fortune 100 firms? An individual innovator who's worried about the aforementioned "patent thicket" - is it not more economical for him to license the bundle from IV, in order to protect and market his innovation, than to contact all the individual patent holders in that technology area and work purchase (or license) agreements individually? The original inventor/patenter receives compensation for his invention and a practicing entity obtains license more economically, and IV earns a fee by efficiently enabling the transaction. (1) Academically, is this not a feasible model to stimulate innovation? (2) Separately, discourse on whether IV is actually doing this . . .
sad, this is wrong.
Mike, this is one of the few you're way off on. MANY songs have similar chord progressions - they don't call a genre 3-chord rock for nothing.
But this suit involves two songs that are note-for-note exact for bar after bar, and one was written right after the other was released. I love your articles. But in a rare event, your analysis here is not even relevant.
Saying there's not copyright infringement because more than one person does the pachelbel canon chord progression? Incredibly weak argument.
who really owns craigslist anyway?
I've always wondered both who owns it and how it makes money . . . can someone explain this to me?
Re: The real issues
I think you're sort of missing the point. Of course I wouldn't be happy if someone reorganized then sold pages of what I created - but when you're in a court of law, your "happiness" factor is irrelevant.
The courts have spent a lot of time evaluating the purposes and effects of providing someone legal protection from copying, and they've established standards that one needs to meet in order to establish "copying" and for one to be reimbursed for it. The problem is, whether JK is right/wrong/good/bad/whatever, her crying in court is so inappropriate as to be sad - and it's a testament to the weakness of her case that she had to go that far.
trademark worth a try?
Just trying to take a more novel approach on this - but if JK's issue was with the *quality* of the work, wouldn't trademark possibly be a more effective argument? I'm rusty on TMs, but could a legal argument for "dilution" have a place here? With all the focus on branding these days, I'd think there would be some more nuanced TM concepts that could be employed here (I'm recalling now that the effect of a dilution claim was being, well, diluted by the courts).
I understand that it's difficult to attack a written work with a trademark slant - but if enough of the key names, places, etc are registered and or contribute to the value of the mark/brand of Harry Potter, couldn't a case be made?
Not looking for flames here, because I know this is a stretch - but just trying to think creatively and see how others might approach it . . .
Re: Capt Obvious
I'm rusty on my patent law, but Hughes/Boeing probably wouldn't have been able to sue a gov't institution like NASA for 'infringement' - isn't there some sort of march in right that allows the government the ability to practice a parent without it being infringement? Someone help me here . . .
. . . that is, of course, if NASA was in fact actually using the patented method - we're not talking like Boeing has a patent on every type of slingshot and orbiting method. Even if NASA was using the method and didn't have the march in rights, there might be a difficulty of proving infringement. Leave it to someone like SES to admit to it . . .
guess this is a case of it being better to ask for forgiveness than for permission
How are we missing something so obvious?
I'm late to this thread, but am shocked that after 52 comments (at my time of responding) nobody has drawn the obvious analogy.
First, this is not patenting physics, it's patenting a method. Thanks to MLS in comment #45 for making this clear (and I'm suprised that Mike Masnick missed that in the first place). Second, and what's particularly disturbing about Mike (and everyone else so far) missing this is there was a nice dissertation posted just yesterday on this site about the patenting of methods: http://www.techdirt.com/articles/20080409/011406799.shtml
Though not software nor a business method, the Boeing patent in question is clearly analogous. I don't desire to argue either way on this situation (largely because I'm an employee of Boeing and have both pro and con views of the situation), but the analysis (of whether or not the patent in question should be valid) could render much more insight if one employed the analyses Mike suggested yesterday.