Hostile Environment For Inventors Harms Our Economy
"Whether we continue to lead the world in software, or we are displaced by China is now uncertain. In
stark contrast to the U.S., China and the rest of the world have been strengthening the Exclusive Right
and the Presumption of Validity for patents in their respective countries. 46
These positive changes are
stimulating innovation in those countries and growing their economies. The U.S., unfortunately, is going
in the opposite direction. We are weakening patent protection. Today, we have more companies going
out of business than starting up for the first time in our history. If we continue down this anti-patent
road, the U.S. will no longer lead. China will.
Congress, the administration and the courts all see that the patent system as broken. They are right. It
is broken. But not for the reasons they think it is broken. The facts have been hijacked by the loud
impermeable voices of those who benefit from weak patent rights. Those negatively affected, the
inventors and the American public, cannot get a word in edgewise. If we continue to enact broad
changes under the misguided “patent troll” arguments, we can expect even greater damage to our
economy and our standing in the world.
We must go the other way. We must stop the further weakening of the U.S. patent system. Congress
must pass laws negating the effects of eBay vs. MercExchange so that a patent is again an Exclusive
Right. The Presumption of Validity must also be restored by eliminating PGO’s and other provisions of
the AIA. The misguided “abstract idea” category of patentable subject matter must be eliminated
altogether. Lastly, the PTO must be fully funded and better managed.
Without these changes – setting it back to what it was just a decade ago – we will become like all other
countries – unexceptional. Someone else will lead future technology revolutions. Perhaps that country
will be China and our generation will be known for the greatest blunder in history."
stark contrast to the U.S., China and the rest of the world have been strengthening the Exclusive Right
and the Presumption of Validity for patents in their respective countries. 46
These positive changes are
stimulating innovation in those countries and growing their economies. The U.S., unfortunately, is going
in the opposite direction. We are weakening patent protection. Today, we have more companies going
out of business than starting up for the first time in our history. If we continue down this anti-patent
road, the U.S. will no longer lead. China will.
Congress, the administration and the courts all see that the patent system as broken. They are right. It
is broken. But not for the reasons they think it is broken. The facts have been hijacked by the loud
impermeable voices of those who benefit from weak patent rights. Those negatively affected, the
inventors and the American public, cannot get a word in edgewise. If we continue to enact broad
changes under the misguided “patent troll” arguments, we can expect even greater damage to our
economy and our standing in the world.
We must go the other way. We must stop the further weakening of the U.S. patent system. Congress
must pass laws negating the effects of eBay vs. MercExchange so that a patent is again an Exclusive
Right. The Presumption of Validity must also be restored by eliminating PGO’s and other provisions of
the AIA. The misguided “abstract idea” category of patentable subject matter must be eliminated
altogether. Lastly, the PTO must be fully funded and better managed.
Without these changes – setting it back to what it was just a decade ago – we will become like all other
countries – unexceptional. Someone else will lead future technology revolutions. Perhaps that country
will be China and our generation will be known for the greatest blunder in history."
really are screwed up!
how did we get this way? . seems like the Thomas
Edisons, the Teslas and the Wrights might have taught
us something ....... -- j
Enforcement is the next blunder. They steal your idea, make it, sell it, then when you send them a letter to desist, they just say sue us; we have more money then you, good luck.
There have been several small inventors smashed this way.
2. Working around existing patents is completely legal. What is it you are really concerned about? that patents are weak or that they inhibit other inventions? we can discuss both arguments, but either you believe one or the other, it can't be both.
2. Unfortunately, I can have it both ways I think. Working around a patent is an intellectual exercise which can make an existing expensive patent moot. Also, It is the fear of somehow being sued after the fact for patent infringement that inhibits other inventions. Practically speaking, my comments are that the process doesnt help lone inventors. Check out the intermittent winshield wiper patent (was made into a movie) fiasco.
I cannot speak for all patent attorneys, but having an irrational patent office was not good for my business and made my life miserable. I think this was true for all patent attorneys who worked with start-ups and individual inventors. Imagine having to spend every day arguing with a patent office with irrational rules - not fun and not profitable. If my clients could not get their patent issued it made it harder to raise capital that would lead to more research and inventions and therefore more patent work for me..
I wholeheartedly agree that our patent system has been virtually destroyed, and the ability of a small business to protect their Intellectual Property is one of the worst problems facing our economy today. In that we are in agreement. I just don't want to rule out one very real problem in order to fix another. Both problems are very real. There are people out there who are simply using the patent system to profit off other peoples work just as much as their are people taking advantage of lax IP laws to destroy inventors. I have a personal friend who has patented a health care product. While his patent is in tact at this point, the big pharma companies have sued him at every turn on everything from naming rights to packaging similarities, etc. His product has been proven in numerous lab studies to work better than a product on the market from one of the big boys. However, the litigation is going to put him out of business. J&J's legal counsel even told him that they would lose if it ever came to court, however, they knew they could put him out of business in legal costs before it ever got there.
2. What the heck is your expertise in saying what should be allowed and what shoudn't? Are you a patent atty, a patent examiner, a CAFC judge with the accepted credentials to determine patent validity? This is exactly the kind of thing I 'm talking about. I don 't feel comfotable telling a cardiologist he misread my Ekg. Yet all sorts of people think they can weigh in on the patent debate and say what is or isn 't an invention, how to read and analyze claim construction, whether the system is broken or not. Fact is you 've been the unwitting dupe of a masterful PR campaign funded by big business and that campaign is full of lies and junk science designed ellicit your opinion from emotion. As Adam Mosoff says about the patent reform debate. It takes no time at all to throw unsubstantiated arguments out there or false statistics. While those of us trying to find the truth have to have time and present solid research. Before that process can complete senators and politicians are already crying for reform and legislation all built on crap. Well this is our industry and we are the friend of the small inventor out there getting atyacked by cronies and many libertarians and a bunch of people riding the misinformation train.
Was I also a plant on adult immunizations? Global warming? Chicago police black sites? Dazbog coffee?
"When Personal Audio first began its litigation, it was under the impression that Carolla, the self-proclaimed largest podcaster in the world, as well as certain other podcasters, were making significant money from infringing Personal Audio’s patents. After the parties completed discovery, however, it became clear this was not the case. As a result, Personal Audio began to offer dismissals from the case to the podcasting companies involved, rather than to litigate over the smaller amounts of money at issue."
I read Atlas for the first time when I was a freshman in high school, and have re-read it at least once a year since then. I contributed financially to the movies, and donate yearly to the foundation. Just because I disagree with you on one minor part of an argument in which we mostly agree doesn't mean I am a plant. You paint with the broad brush and say there's no such thing as a patent troll. I simply state there are. That doesn't change the fact that the patent system is broken. We can work together to fix one problem without agreeing on all of them.
If you had any intellectual honesty, you would quickly unblock my comments. Ayn's gulch had free, open debates every night, and dissent and discussion were valued. "I will never live for the sake of another man, nor ask another to live for me."
2. An inventor is an inventor regardless of whether he ever manufactures.
3. What is your experience in reading claims.? The patents involved take alot of time by experienced people to determine infringement or validity.
4. We look at this issue every day, my husband writes books on intellectual property, we analyze the data on litigation, litigation rates and supreme court cases. You can disagree all you want but I have given facts, presented cited arguments while you have given opinion not based on solid evidence. Further, you also continue to use pejoratives when speaking about inventors. Rand revered inventors. By your own definition Edison would have been a "patent troll. " I unhid your comments because you said the Oath. But it's very annoying to have to argue from mis information or junk science i.e. you 've read the patents so...
Again, I agree wholeheartedly with almost every statement you have made on patent infringment. I will fight that battle side by side with you on every hill except the Personal Audio case and others like it. The problems in our economy surrounding IP Law are one of the main reasons we are losing leadership in a global technology economy. And we haven't even touched on the IP theft from China which has the practical blessing of the government there. I agree that patent infringment will cause not only the death of the small inventor, but also the death of small business, and existing businesses to move themselves to countries with stronger IP laws. I am willing to agree with you on all of that. I would simply ask you to acknowledge that there are people out there who take advantage of the patent system from the other side as well. The two arguments are not mutually exclusive.
The settlement was reached in March. PA, as the plaintiff, was responsible for filing the proper paperwork. They filed paperwork for a dismissal "with prejudice" when the settlement agreement was for a dismissal "without prejudice", meaning both parties accept no fault and retain all future legal rememdies. It took them until August to file the correct paperwork. Even giving them the benefit of the doubt that it was an honest mistake, your "facts" are incorrect.
You say I am a dupe of a PR scheme, and am only emoting, however I have put forth several salient facts that you have not even acknowledged. The primary fact is that the technology that PA is suing over was not even covered under their patent when Adam Carolla began his show. If I'm wrong there, please cite the technology in the original 96 patent that applied to this suit. I'll tell you, it will be hard to do since PA couldn't even do that in their court filings. They cited the 2009 update application. The patent office should never have approved an update to the patent when the technology the update was to cover had been in wide use as early as 2004 and in the market since 1993. Rhapsody offered suggested playlists based on listening habits, the disputed tech, as early as 2007. In fact, you stated that a simple patent search would have let Carolla know, however the patent update wasn't approved until 2012, so a search when he went into business would not have shown him this. Prior to the approval of the update in 2012, the patent in question did not cover server based episodic content with listening habit recommendations. PA's own filings state that. The patent number used in their filings is the updated patent approved in 2012. The only reason they were able to file at all was because, for some reason, the patent office allowed them to patent new technology as an update to an old patent, hence backdating their rights by 16 years. Is a business supposed to patent search their business every year in perpetuity to make sure someone hasn't patented what they have been doing for years?
The only "facts" I have heard from you is that your husband is a patent attorney, and you spoke to one of the litigants. Those aren't facts. I have not spoken to either litigant, so don't have any primacy bias, and my professional background is in IP law. In that, I am probably less biased since I have no direct relationship to either party. In fact, I have never listened to a single episode of Carolla's show. Can you refute the fact that the patent update cited in the suit wasn't even applied for until 2 weeks after Carolla began his show? And, if not, why should a patent update be approved to retroactively cover existing business practices. One of the two key burdens of a patent application is exclusivity. If Carolla, and thousands of others, were already using this technology when the update was applied for in March of 2009, how did PA prove that they had exclusivity? If they couldn't prove that they had exclusivity in 2009, on what grounds did they file for an update to an old patent to cover this new technology? I don't necessarily blame PA. If the PTO is going to allow deceptive business practices, why not attempt to take advantage. However, as Hank Reardon would tell you, the joy is in creating something no one else can, not in profiting off of other's work.
1) Is a patent a property right?
2) If it is a property right, can it be sold to others?
3) Can those others enforce that right?
Substitute a house or a car for an invention/patent and you will see the absurdity of your opinion.
Copyright for 99 years beyond life of holder is insane. In a world of accelerating change a patent or copyright that can limit the use of others makes no sense imho for a period of more than 5-10 years.
1) Software is not mathematics, it is a way of wiring an electronic circuit.
2) To be against s/w patents you have to be against all patents on electronic circuits.
3) Our patent laws have been significantly weakened over the last decade and a half by large companies, so that the game is rigged in their favor. The answer is to strengthen our patent laws, including s/w, not weaken them.
4) There is no macroeconomic evidence for you desire to shorten patent lives. Those countries with the strongest patent systems create most of the new technologies and have the most technology dispersion. Actually, the macroeconomic evidence would be to extend the term of patents.
5) Copyright terms may be too long but it was about HARMonizing our copyright laws with the rest of the world.
I do have a question, however. To what level of triviality should patent protection be available? Should a chef be able to patent a new way of cutting carrots, then be able to sue any other restaurant whose chefs have independently devised the same method? Should a retailer be able to patent a business concept of a "limited satisfaction guarantee, refunding 80% of the purchase price if the item is returned in as-new condition within 30 days"?
This, to me, is where the real debate lies - the level of triviality permitted, and the likelihood of numerous others creating the same invention independently simply by doing their jobs.
Novel way to slice carrots could save a company millions by maximizing product output and cutting costs
1) Any prior public use (sale in US) by another of the technology makes it unpatentable to a patent applicant. A patent applicant has to define (the claims) a novel invention. So in your example above Company A would have the patent invalidated.
2) If the inventor, A, decides to keep their invention a trade secret and a company B comes along and applies for a patent. Before the AIA (2013) A could be found to infringe a patent that issued to B. Under the present law things are bit more complicated, but roughly if A made substantial preparation to commercialize (prior use) a product incorporating the invention, he will have a limited right to practice the invention.
The article gets it wrong from the start by claiming that inventors themselves are labelled as "patent trolls", where the term much more often refers to non-inventing patent hoarding corporations such as Intellectual Ventures Inc whose business model contains zero invention and huge amounts of actively searching for (potentially) infringing behaviours.
Intellectual Ventures is notorious for litigating against companies who are using technology which could even vaguely be perceived as infringing. The process involves a cease and desist letter with threats, offering option to settle by paying a license fee. The license fee is carefully calculated to be significantly less than the legal cost the defending company would have to pay to defeat the infringement allegation in court.
The victim company just thinks: "It's cheaper to pay up than to fight for justice". They open their wallet and the problem goes away. Sadly, by this means, it's possible for one company to wheedle out of a whole industry sector a sum of money which is many times larger than the legal cost of defeating their claims.
THAT - is a patent troll.
2. Intellectual Ventures and the value judgment of "notorious." where did this value judgement come from. The article talks at length about this. Did you read it? It was an opportunity to gain insight into how patents work, how licensing companies work, and how small inventors rely on companies like Intellectual Ventures to monetize their inventions so they can keep inventing. Inventing deserves to be a profession.
3. "The victim company just thinks:" This is also a value judgment. Why is the patent holder the bad guy in this scenario and the infringer (thief) considered a victim?
4." it's possible for one company to wheedle out of a whole industry sector a sum of money which is many times larger than the legal cost of defeating their claims. " this is exactly what large corporations depend on. For you to see paying a license for what you are stealing as a cartel demanding hush money. Inventors have a right to be paid for their production. You are anti-patent. Protecting intellectual property is an essential part of capitalism and supported by Objectivism as moral. Are you an Austrian or anarcho?
I'm worried for someone who would jump to that conclusion, based on me challenging the validity of *some* kinds of patent. The original aim of patents, as envisioned in the Constitution, is to encourage the sharing of knowledge into the public domain, hence the wording "limited times". This is as opposed to other forms of IP protection such as trade secrets, from which only the producers possessing them, and their customers, benefited.
"Are you Austrian or anarcho?"
I'm one of thousands you rely on when you hit the green button on your smartphone to telephone a friend or relative overseas, or send a photo to your child. I'm the one writing the software that navigates a baffling and exhausting minefield of complication and obstacles to ensure your call or message Simply Just Happens. The tap on the screen you take for granted? For me, and the code I write, it represents constant non-trivialities, constant occurrences of things not working as they should, and having to invent ways around them. My customers don't give a damn about the technical obstacles, and to be honest, they shouldn't. But for me, it's a war against time and an uphill climb. And in that environment, I just get my head down, my ass up, and engage my intellect to devise ways around. If I pause at every step of the way to check if a protocol or algorithm or data structure or object model I create steps on someone else's patent, I'd be out of a job. My customers would baulk at the extra charges they're paying to cover the license fees, and move to another provider who doesn't respect patents.
Look through all the precious Fortune 500 tech firms, and you'll find their engineers doing exactly the same thing.
If all telephony providers had 100% respect for patents, expect your phone minutes and data charges and handset costs to multiply by 10 or more.
I defy you to abstain from any use of technology which implicates any kind of IP infringement in its value chains. If you make and honour that commitment, you'll find yourself living a lot more simply. If not, you are contradicting your own principles, and annihilating the validity of your own position.
Apple, Google, Samsung, Microsoft - other companies, large and small - all infringing, all over the place. But we still enjoy a blistering pace of innovation.
"If I pause at every step of the way to check if a protocol or algorithm or data structure or object model I create steps on someone else's patent, I'd be out of a job. My customers would baulk at the extra charges they're paying to cover the license fees, and move to another provider who doesn't respect patents." this is a canard. Your company does market research. They check title before they break land. There is no objective macro-economic evidence for your point of view. Patent searches require a little time and not much money, people in business understand due diligence. If they purposely avoid it, well...
" But we still enjoy a blistering pace of innovation. " Once again a bald statement with no empirical evidence. The US on several innovation indices has fallen precipitously over the last decade. The number of new businesses in the US does not keep up with attrition rate. The amount of venture capital in startups gone down significantly over the last decade. The number of companies going public has dropped significantly. Real per capita income is flat to declining. This is all overwhelming evidence that we are not thriving technologically.
We understand what our software clients need and we protect their inventions. We absolutely care about what happens when we push the green button on a phone. But you have openly admitted that you don't care about others' property rights because you don't have "time."
My original challenge remains - explain to me that all technology you are using is 100% non-infringing throughout its value chains, then I will respect your arguments. Plausible deniability is no excuse either.
Note that they do not oppose patents on non-software related inventions, such as anti-lock braking.
I'll conclude by saying that we find ourselves in a possibly irreconcilable disagreement. Upton Sinclair's quote comes to mind: “It is difficult to get a man to understand something, when his salary depends on his not understanding it.”
You are married to a patent attorney, so you benefit from patentability of software. I am a software inventor, so I benefit from the non-patentability of software. I do hold to the argument, however, that software patenting is actually undermining America's traditional position as an innovation superpower.
You are not serious. You never answer any questions and you never provide any facts.
The macroeconomic evidence is overwhelming that those countries with the strongest patent systems create most of the new technologies and have the most technology dispersion. The same is true of software.
You are nothing but a spamming troll
An invention is a mental formulation by a party of:
(a) a process for manipulation of physical material or objects, and/or
(b) a physical material or object, which is:
(i) previously unknown to the party itself, and
(ii) is expressed in working demonstrable physical form (either directly by the party itself, or by another party or parties directly behalf of the first party), and
(iii) can be applied to meet needs or desires, or solve problems, for at least one party.
IANAL - I'm aware that a trained lawyer would find enough holes in this to fly an A380 Airbus through, but that's how I personally relate to 'invention'.
There is no such thing as a trivial invention. Something either is an invention or it is not and under the Constitution and logic any invention is entitled to property rights - a patent.
On the other hand (lawyer) a purpose of patents is to create alternative ways to skin the cat.
I own a tree, but you tell me I can't carve it into a shape you've already patented. I've lost the control of my physical property -- intellectual property necessarily infringes real property rights.
Property Rights are not based on scarcity, they are based on creation. The law is recognizing that metaphysical fact that you are the creator. Your analogy fails as your property rights in your tree are not unlimited either, you cannot carve it into a club and beat other people over the head with it.
Your and the Austrians' weak excuse for stealing other people's creations is morally reprehensible.
This is not a site for irrational Austrians it is a site to explore the ideas of Ayn Rand. Here is what she had to say about property rights and patents.
"What the patent and copyright laws acknowledge is the paramount role of mental effort in the production of material values; "
"What the patent or copyright protects is not the physical object as such, but the idea which it embodies. By forbidding an unauthorized reproduction of the object, the law declares, in effect, that the physical labor of copying is not the source of the object’s value, that that value is created by the originator of the idea and may not be used without his consent; thus the law establishes the property right of a mind to that which it has brought into existence."
Patents and Copyrights,”
Capitalism: The Unknown Ideal, 130
Also see "Any material element or resource which, in order to become of use or value to men, requires the application of human knowledge and effort, should be private property—by the right of those who apply the knowledge and effort."
Note the Austrians' attempt to ignore the inventor created the real value and justify being second handers.
Property as "creation" fails to account for a lot of property -- gifts, for example, in which the receiver had no part in their creation -- yet who disputes the receiver is the proper owner? Or found objects.
A pioneer finds a lake and an apple tree. He declares the area his property and takes the fish and picks the apples. His property claim is indeed based on monopolization and not on creation. Creation can be a source of property, but it is ultimately monopolization that defines property.
Only honest debate is allowed here.
You say it is the stealing of thoughts, but the flip side is the stealing of the property rights of others.
Intellectual property and physical property are mutually contradictory. The supremacy of one implies the violation of the other.
The early advocates of intellectual property saw it as a compromise, strictly for the collective benefit of society. The people would surrender some of their freedom for the benefits of rewarding inventors and writers as an encouragement to produce new works.
I believe rational people must keep in mind the conflict between intellectual property and real property.
2. you ignore Rand on the subject
3.you emote
4. intellectual property is based on the ideas of Locke on property and common law, and our Constitution
since you do not promote any of these important philosophical pillars, I am hiding your comments.
You were given fair warning that you were misrepresenting Rand.
Learn a little about a subject before you spout off such nonsense.