Broken Windows, Broken Patents
from the hidden-costs dept
Renauld Thompson writes "A provocative essay appeared over at Right to Create this morning, comparing Frederic Bastiat's Fallacy of the Broken Window to our current patent system. The argument is compelling: if we regularly reward those who hold bad patents, if we encourage the USPTO to grant more bad patents, and if we allow patent holders to run rough-shod over scientific research, aren't we really saying that broken windows are good for all of us?"
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100 % crap
The problem with people like Jackson Lenford of the "Right to Create" and Mike Masnik of Techdirt, is that you guys are ABSOLUTELY IGNORANT about the subject of patents and IP in general.
You just have some completely distorted picture of reality, helped in part by corporate propaganda, where evil patent trolls (aka NTP) torture honest bussiness folks (aka RIM) who built a successful bussiness model (Mike's favorite argument)
Well, as someone said: "It is easy to suggest solution if you don't know what the problem is"
And, also, don't forget to blame the lawyers for everything...
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Re: 100 % crap
Here's what most rational folks see as the problem: patent quality. Even 'trolls' won't buy 90% of the patents that are issued, because even they admit that they are garbage. Of the remaining 10%, its clear to most rational folk that these are only one tiny notch above garbage.
I note that Right to Create regularly rails big corporate america and their penchant for patents as much as they do against trolls like NTP. Techdirt too. Your characterization of them just buying into corporate propaganda rings incredibly false.
There's a lot wrong with corporations, including their patent-hoarding ways and their desire to amass huge portfolios of crappy patents. How do we fix this (and fix the troll problem)? By not granting so many crappy patents. Period.
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Re: 100 % crap
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Re: 100 % crap
Not in the PATENT LAW, for your education...
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Re: 100 % crap
Perhaps that's part of the general problem. Patents are given arbitrary pricing (monopoly status), when the marketplace is perfectly good at assigning competitive pricing. If your patent has no value in the marketplace, why should it have value in PATENT LAW?
Perhaps that's part of your specific problem: your patent is worthless, but you want to find some way to stretch its claims so that you can extort money from companies (large and small).
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Re: 100 % crap
My only problem is that I don't have resources and connections to do something in the industry dominated by large multinationals. So, yes, the patent is worthless for me (at the moment) but very worthy for those corporations implementing things right from my patent and selling infringing products for profit without even thinking of paying modest compensation to patent holder...
All I can do now is try to collect documental proof of WILLFUL patent infringement and hope that when damages exceed some figure, say 100mil I will be able to find some real nasty patent troll to stick it to them...
This is how it works in the real world.
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Re: 100 % crap
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Re: 100 % crap
This is how it works in the real world."
How lame is that, you have this idea right?
First of all you have a patent, so you should not fear letting everyone know about it, your protected.
Secondly, your idea is supposed to be better than 95% of all other existing patents, but you can't get funding for it? Your going to sit around and wait for somebody to try "reinvent it" so you can sue them ?
Try telling people about the idea until you get the money to carry it out.
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Re: 100 % crap
Yes, I could not get VC funding so far and yes, my patented method is already in widespread commercial use WITHOUT asking me for a license(they would not tell me of course, but I know it)
Do you know what RSA patent is, ot rather was (it expired in 2001) ?
RSA algorithm runs in your browser each and every time you buy something on the Internet with your credit card.
Now, are you aware of the fact that Jim Bidzos, the CEO of RSA Data securiry was unable to get any VC funding at all ?
The company was started by 3 original inventors from a 2-bedroom appartment and went almost broke after couple years...
It is only after they found this guy, Jim Bidzos, who had drive and vision and finally was able to stick it to all of the big boys including Microsoft.
Ah, not to forget the legendary 1% of Netscape stock given to RSA in exchange for a patent license.
And by the way, for your education, try to go to www.uspto.gov and browse through all the issued patents and patent applications.
When you are done with this exersize, just shut up about "re-inventing" patented invention, OK ?
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Re: 100 % crap
If I hold a patent that has no value in the market, then I have no value.
If a person, or company, holds a patent for something that HAS market value, then someone, hopefully the patent holder, will build a company to increase it's value.
This discussion seems to forget that the entire foundational premise is that patents and markets are there to create and/or increase wealth. If I invent something of value, one would hope that I would also want to build a business to utilize it. And if I don't want to do that, one would hope I would offer it to someone else so THEY can utilize it. Then the markets and inventors are supported and rewarded for their efforts. There is nothing wrong with licensing fees to the little guy, OR the big guy. Nor is there anything wrong with a big/little guy fighting to protect that which he created from other people big or small who would steal a good idea and use it for their own gains.
But this is garbage. Just cuz I have a patent doesn't mean that I am given arbitrary pricing. The market determines what it's value is. If I build a car, the value of that car is NOT what I ask for it, but rather what someone is willing to pay for it. I can choose to ask for license fees for users who drive it, or I can sell it outright. My choice. And the buyer can choose as well.
All a patent does is define who owns the invention in question. Just like a title defines who owns a car. Nothing more, nothing less.
I agree that the patent system could be improved. All systems could be improved. But I've yet to see a better solution out there. If you come up with one, patent it. :)
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Re: 100 % crap
> are there to create and/or increase wealth.
Not according to my copy of the US Constitution, which states that Congress has the power to grant patents *only* for the promotion of the useful arts and sciences. You can claim that profit motive is tied to that, but individual profit motive is not the constitutional motivator: societal progress is.
> But this is garbage. Just cuz I have a patent
> doesn't mean that I am given arbitrary pricing.
Actually, it does. If I hold a patent that has as a claim, "process for entering data from a client machine, connected over a network, to be stored on a server machine," then you violated my patent by posting the preceeding remark. You have violated my patent, and are liable for damages. If you want to continue to post, you must license the right to do so from me, the patent holder, at a price that I agree to. You cannot buy the right from any other producer (as you could in a free market system), and so competition cannot drive the price down to its most natural equilibrium.
Patent power is monopoly power. Monopoly power allows monopoly pricing.
And lest you think my example claim above could never have been granted, just do a google search on "ridiculous patent".
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Re: 100 % crap
I think you have misquoted your copy of the constitution. The constitution says: "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;"
The purpose of the clause is to protect the creative process by granting EXCLUSIVE rights for a limited time. The intent being to promote science and arts. A patent which would not promote science and arts could be construed to be unconstitutional, I agree. And at times it might be. But I think it's clear that the "promoting of the progress" they are talking about here is to reward the inventors by giving them a chance to be rewarded for their creations. Otherwise, why grant them exclusive access?
No,it's not a 'constitutional motivator' as you say it, but it's clear that the constitution wants creators to own it for a while.
Now, as to your other point... "You have violated my patent, and are liable for damages. If you want to continue to post, you must license the right to do so from me, the patent holder, at a price that I agree to. You cannot buy the right from any other producer (as you could in a free market system), and so competition cannot drive the price down to its most natural equilibrium."
I might be subject to damages, but you don't define the damages. You can ASK the court to give you $XYZ, but the court/jury determines the damages. Again, my point is that you don't get to pick a fee out of the air. The value isn't determined by the maker, it's defined by the markets. You would be given a fair value for the damages, not 'whatever you asked'. That was my point. Otherwise when MS looses a patent case, MS would be paying trillions on every loss. Thats clearly not the case. And MS has lost a lot of cases.
And I CAN buy the ability to post from another producer. I just can't buy one that uses YOUR solution. Your solution might use PHP, someone else might use java. I can buy the java solution if I want. And there is nothing you can do to stop me.
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Re: 100 % crap
> solution. Your solution might use PHP, someone
> else might use java. I can buy the java solution
> if I want. And there is nothing you can do to stop
> me.
Not if I word my claim carefully enough. Google 'Lemelson machine vision' if you want to see what I mean (the fact that the Lemelson patents were eventually invalidated strengthens my point; his estate collected *billions* of dollars from these patents, which were obviously written before anyone knew what or how to implement machine vision, but were worded so broadly that they covered *every* implementation of a camera hooked up to a machine).
That's what we're talking about when we talk about patent quality. If I could pull a Lemelson, I could get a patent that covere not just the PHP and Java solution, but anything written in any language, or even some analog solution that didn't use language at all -- that was the reason I chose very broad language for my imaginary claim.
The Lemelson cases are but one example. There are *many* others just like this, where a 'paper inventor' filed as broad of a claim as possible, hoping to carve out some huge tract of land in the 'IP-space' to ensnare any future work that might somehow tread on that space.
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Re: 100 % crap
Your point is well taken, but this case is not really relevant here.
Lemelson won NOT because he had a broad scoped patent, but because he spent decades defining his patents after first applying for them. In 1954 and 1956, Lemelson applied for patents on methods and devices for inspecting and measuring objects. Thereafter, by filing continuation and continuation-in-part (CIP) applications, Lemelson maintained co-pending applications claiming priority from the 1956 application, adding claims that read on bar code or machine vision systems subsequently commercialized by others. What this did was put a 'start date' on his patents back in the 50s, but he didn't finalize them until after the products came to market by others in the 1980s. So, nobody else can file a patent for his work, but he can't use it until it's finalized. What he did was excercise a loophole, and take 18-39 years to excercise a patent he first filed in the 50's. Effectively making the patents last longer than the 17 years they should have lasted. (Because the 17 year clock didn't start until the patent was issued, which was decades after he first filed.)
However, this loophole was closed BECAUSE of this guy. When Lemelson started filing continuation applications on bar code and machine vision technology, the term of a patent was 17 years from date of issue. In 1995, however, the law was changed to provide that the term of a patent would be from issuance to 20 years from the date of the first application from which the patent claimed priority.
A crafty SOB, I'll give him that.
In order to obtain a patent, there must be conception plus reduction to practice. Reduction to practice, however, does not require that the applicant have actually built a prototype or used the method. Reduction to practice can be "constructive" -by including in the application a written description of the invention sufficient "to enable any person skilled in the art to which it pertains...to make and use the same." 35 U.S.C. § 112, 1.
So, I agree that some patents are granted that are too broad. But the LAW says that it should be reduced to a working example. Meaning that if you define the posting technology patent, you'll have to reduce it to include all variations (in all development languages) to prevent me from doing in Java what you are doing in PHP.
I think we are agreed that if you manage to get a patent doing that, you shouldn't have a patent to do that. And in most cases, those patents don't hold up in court, though I agree the courts can be pretty stupid too.
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Re: 100 % crap
> variations (in all development languages) to
> prevent me from doing in Java what you are doing
> in PHP.
Reduction to practice is meaningless. And it certainly doesn't confine your 'invention' to a specific language or platform -- if it did, for example, RIM would have simply told the court that it implemented its software in C++ (or whatever) instead of in C as NTP did (or whatever).
Claims can be worded very broadly. If you have a good patent lawyer, this is one of the things they will help you do as you craft the claims -- make them as broad as possible without invalidating the specific claim.
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Re: 100 % crap
This is its own problem. Patents are supposed to be worded narrowly, covering a specific implementation of a specific technology that is novel and not obvious. The USPTO is, by its charter, not supposed to grant "catch all" patents. That it does is just more fodder for reform.
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Re: 100 % crap
Patent covers an invention and to be of any value it has to be claimed as broadly as possible over the prior art.
Thus, patent attorneys strive to achieve (and get allowed) patent claims with as few elements as possible.
The absolute record was set by US 3,156,523 patent on Americium (artificially produced element)with its Claim 1: "Element 95"
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Re: 100 % crap
See, we're just not talking about the same thing. I'm talking about what's supposed to be, you're talking about what people get away with. Not the same. I might get away with robbing a bank, that doesn't mean I'm supposed to.
With enough obfuscated language and a decent lawyer, I could patent your right to breathe. The point you're missing is that this is not the point.
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Re: 100 % crap
I gotta go now, but just want to end this discussion with some observation.
Those same large companies whining the most about evil patent trols are in fact the worst polluters of the USPTO database.
Did you read some of the patents by MS ?
Just how many valid patent do they have, if their patents are challenged in court ?
Maybe 5 percent at the very best.
The point I want to make is that patent quality needs to be improved all over the board, but this shoiuld apply to everyone - large corps and little trolls (garage inventors)...
Same standard for everybody, that's all I want.
Same standard should also be used when patents are licensed: you just can't call a small guy attempting to license his patent "patent troll": while refering to IBM patent licensing practice as "technology licensing".
As far as I am concerned, IBM is the biggest patent troll with some 40,000 patents (most of them not used in any of their products)
And I only have one, so what ?
My one-person company has exactly the same rights as IBM. Period.
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Re: 100 % crap
Regardless of whether a patent can be monetized or not, the patentee has the exclusive right to exercise the claims therein, for 20 years.
That's a hell of a value. One little patent can set *ALL* of us back 20 years, simply because the patent holder has this one little right to exclude us from participating.
If I were an arch-villain, I'd file a bunch of patents or buy a bunch up, refuse to license them, and watch as millions die because they can't get the drugs they need (because they violate my patents), the safety features they need (because they violate my patents), etc.
It's simply just not that hard to file patent applications. It takes some persistence and a little bit of money, but not much. And then I have monopoly power, for 2 decades. Muhahahahahahahaha!
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Re: 100 % crap
For example, Amazon patents the "one click checkout thing". Now, I agree this is a stupid, and should never have been issued. But how did that stop ecommerce? It didn't.
The key is that a patent only protects one method of doing something. Amazon now owns one click checkout, but that doesn't stop me from creating my own methods of checking out. I can create my OWN method, OR I can license it from Amazon, or I can appeal to the courts/USPTO, etc, and say, "You have got to be kidding this is stupid." My choice.
Now, Patty claims you can be an evil genius and refuse to license patented drugs. You can't. As you can see...
"Underlying the constitutional tests and congressional conditions for patentability is the balancing of two interests--the interest of the public in being protected against monopolies and in having ready access to and use of new items versus the interest of the country, as a whole, in encouraging invention by rewarding creative persons for their innovations." (http://caselaw.lp.findlaw.com/data/constitution/article01/39.html)
If you held such patents, they would be overturned almost immediately as soon as anyone complained.
And I'm sorry guys, NTP and RIM just proved that the value of a patent is determined by the BUYER not seller. NTP wanted a lot of money from RIM. RIM didn't want to pay it. Now, from the beginning, NTP had 2 options, 1) ask for money and negotiate until they got a settlement they liked, or 2) force RIM to stop using their patented solutions. They could never determine the value, they could only ask for a value, or demand RIM stop using it. If RIM stops using it, the patent is worthless from that point on
RIM also had 2 options, 1) pay NTP a fee RIM was comfortable with, or 2) deliver emails in a way that did not infringe with NTP's patents. NTP was welcome to ask all they wanted. RIM was welcome to refuse. All the court was going to decide was if RIM had to change their models because RIM didn't want to pay. The potential ruling (had one come down) would have ordered RIM to stop using NTP's solutions within 60 days (or something like that). It would NOT have shut down RIM, nor would it have determined a value on the patent. RIM could have chosen to implement another method, or settle. They did settle. For less than what NTP wanted, I'm sure.
Granted, RIM didn't like paying. But they seemed to have used technologies covered by NTP, as those patents held up in court (RIM argued they shouldn't apply and lost). And if they did, then they owed NTP something for the efforts of the inventor that NTP represents.
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Re: 100 % crap
All corporations are not evil.
I've seen a big evil corporation patent an
employee's invention at their expense and then
sell the patent to him for a dollar. The
lawyers are on retainer, so why not.
Patent trolls suck.
It's easy to get a patent, it's not easy to
make stuff. The patent trolls know this.
They lay in wait until the manufacturer has
made an investment he's not willing to walk
away from, then pounce.
Get real.
Claiming that it's some cabal that holds you
back from profiting from your invention
is pretty lame. It's hard work, many fail
and loose their shirts in the process. I know
this from my own painful experiences. The road
to success is littered with the bodies of
disgruntled cranks and their worthless inventions.
These things take time.
The patent system needs some adjustment. It's
not as broken as copyrights but it could be if
we're not careful.
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Re: 100 % crap
What the fuck are you talking about ?
I didn't say all corporations are evil, but quite a few of them, e.g. MS, HP, RIM etc. etc. etc. have a very bad habit of *willfully* taking IP from patents belonging to small entities and treating that IP as their own.
This is downrignt illegal and punishable by law...
Unless your patent describes some product as a whole or you are in some new market, you are out of luck...
The proverbial inventor of a better_mouse-trap would be completely screwed if all the patents on basic mouse trap were in poseesion of large incumbent mousetrap manufacturers...
My situation is quite similar to this.
I might have to wait for 10 years before all basic patents in the industry expire then I can actualy make my "better mousetrap" without stepping on some large entiry patent.
In the meantime, all the mousetrap manufacturers shamelessly and illegally implement all the featiures from my patent, so what's the point of me actually trying to manufacture something ?
Call me patent troll or whatevr, but this is my constitutional right - to have some exclusive right in my invention, do you get it ?
Want to get rid of patent trolls (aka small garage inventors) like me - amend US Constitution first. We'll see how it goes...
Until then just shut the fuck up !
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Re: 100 % crap
What those big multinationals want to have is a nice little patent system to suit their needs.
They just want to kill all independent inventors and small patent holding companies in America, no more and no less.
Is this what you want ?
To be honest with public, they must start by amending the US Constitution. Yeah, hell with those inventors and authors, let them all die..
But, of course, this would be too much for a general public to swallow, so being dishonest crooks as the are, those corporate boys scream "patent trolls" to introduce some tweaks to the patent law which will make ALL patents held by small entities completely unenforceable, no more and no less.
You know: "Quod licet Iovi, non licet bovi"
You want to be a slave to your corporate master ? fine. But I want the freedom to invent things AND be paid for my inventions via the patent system.
I have a one-person company and my company is just as good as IBM, legally speaking.
Hear it ? Just as good or even better in some respects. If IBM can charge startups for their junky patents I can and will do the same (to IBM itself and to the startups), with much better patents though...
And no judge and no jury in this country will deny me this right !
The LAW is the same for everyone, be it IBM or some basement inventor.
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Re: 100 % crap
No it isn't, and you know it. Law is extremely skewed in favor of large corporations, who exist as a type of super-individual, that is not subject to death or prison, has a disproportionate voice in our democracy (because $$ = votes, whether through lobbying, campaign donations, advertising, etc), and is able to exert far more influence over our personal lives than any single individual.
As for patent law, this is absolutely true. You see it as big bad corp vs. little inventor because big bad corp hasn't yet entirely learned how to play the role of troll effectively. But just wait. Big bad corp is learning about this patent litigation business from the trolls, and is now starting to foray into this business model. Look at MS and their FAT patents and licensing scheme. Look at IBM and their massive portfolio that they make billions from every year. Just wait. Soon, not even you, mr. little inventor, will be allowed to invent, because big bad corp will own all the ideas, and you'll need to pay him a hefty licensing fee if you want to get in on the invention action.
Unless we do something to lessen the power of the patent and improve patent quality. Its the only solution, and it will work in your favor as a small inventor.
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Re: 100 % crap
No, it won't
Quality certainly needs to be improved,
but less powerful patents (aka no automatic injuctions) == death of all independent inventors in America (they are already non-existent in the rest of the world, by the way)
If you don't believe me, just go to Professional Inventor Alliance's (I am not a member) web site and read:
http://www.piausa.org/
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Re: 100 % crap
The thing that I can't really understand about patents, is why this system is allowed to deprive others of their rights. If someone patents an idea "FIRST" even someone else comes up with the exact same idea independently, they have already lost their rights to use that idea commercially. How does this promote invention? Why would I even bother to invent if I did not know who else might already be placing a patent on the same invention.
Would my idea not be at about the same risk, if there was no patent system at all? Where did all thew typewriters go when PCs came along? They are not needed any more. So if computers are used to invent, then whose invention is it?
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Re: 100 % crap
inventing something the first time is genius, inventing something the second time is stupidity.
my point is that inventing the same thing twice don't promote invention either.
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Re: 100 % crap
...why are you against this? logic points to only one possible reason.
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Re: 100 % crap
http://www.google.com/search?q=site%3Atechdirt.com+angry+dude
...why not put on some "big boy pants" and grow up a bit?
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Observation about patents
This has been happening for quite a while. There's the famous XOR patent for blinking a cursor on a black and white CRT... a company purchased the patent solely to force hardware (and some software) makers to fork over money. This was a decade or two ago, and people saw that this business model works. Nowadays with software patents becoming more and more prevalent, this is starting to eat into actual development, since 14 or so years in "internet time" could effectively stifle any development.
Some large companies amass a hell of a lot of patents, and whenever another company accuses them of violating a patent, they find a couple of dozen said company has violated as well, and usually come to a cross-licensing agreement. These agreements effectively leave out the small developer (and OSS projects as well).
What we currently have is what we currently have. It's being abused, yes, but unless people spend many years completely overhauling the system, this is what is going to remain the case. You will find considerable resistance from people with a vested interest in the current system (large companies that paid a lot to amass their current portfolios, the patent whores, etc.), so it's going to be quite an uphill battle.
So, while the current system is by no means perfect, it's all we have for the foreseeable future. Dreaming can only go so far. Reality is the bitch.
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Re: Observation about patents
But when people start rejoycing when PTO invalidates (not finally and under heavy pressure) some of NTP patents, I just go nuts.
I read some NTP patents and they are better than 90 % of patents issued to IBM, not to mention Microsoft junk.
I studied a LOT of patents issued to big high-tech corps in my field: 95% are total junk, yet they collect royalties on them and use them as a patent thicket to prevent entry by guys like me...
Those guys have a different meaning for the word "fairness"
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Re: Observation about patents
> collect royalties on them and use them as a patent
> thicket to prevent entry by guys like me...
Okay, you've totally lost me. You admit that 95% of the patents are totally junk, but because the system has allowed this kind of abuse in the past, it should continue to allow it so that you can get in on the action?
What kind of crazy-assed morality is that?
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Re: Observation about patents
Worry about my mental health :-)
My patent is in those 5 remaining percent of actually novel and unobvious patents, there are some good ones out there , believe me.
The problem is a double standard.
When IBM licenses their patents it's called a "technology licensing" - a good thing.
If I try to license my patent they will call it "patent trolling" or worse, money extortion.
Go figure...
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Re: Observation about patents
I read some NTP patents and they are better than 90 % of patents issued to IBM
I'm pleased to see the NTP patents struck down for the simple reason that they never should have been granted. Not because of the quality of their writing, or big vs. little, or business model success, but because they cover what is not an original idea.
The internet's history includes packet radio networks back in the early 1970's, which were most certainly used to transmit electronic messages from one or more processors to one or more recieving processors by RF, the core claim of the NTP patents.
This, dear angry independant patent-holder, is called "prior art", and is a concept with which you may want to familiarize yourself. The vitrol aimed at the USPTO is due to their failure to Have A Clue, specifically in the area of prior art in this case, and that they have demonstrated a healthy (even agressive) resistance to any introduction thereof about said Clue.
And not just about NTP, but about a great many things, for a great many reasons, and it is this, not some desire to submarine individual inventors or corporate strongarming, that prompts the calls for reform.
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Re: Observation about patents
*All* american independent inventors are mad as hell at the moment, just read some testimonies, go to Professional Inventors Alliance web site and read : http://www.piausa.org
This is more than just a heated discussion, it's a war on the Capitol Hill and in the US Supreme Court and all over the place, including the mass media...
You obviously never wore shoes of an independent inventor, otherwise you would sing a different tune.
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Re: Observation about patents
At what point does my saying "Prior Art" equate in your mind as "Fuck the little guy"? I mean, I know you have your axe to grind and all, but could you chill out for long enough to actually read what I wrote?
I want you to invent. I want you to have your patent. I want you to be able to manufacture, or license, or what-have-you to your heart's content.
What I don't want is a successful business soaked for half a billion dollars because some nimrod managed to get a patent out of a broken USPTO for a technology demonstrably in existance 20 years prior to the patent's issuance.
Do you see the hair I'm splitting here? I mean, I know you're of the opinion that I'm perfectly at liberty to patent the wheel as long as I word my application right, and that you think this is all peachy, it's just that I don't agree with you. No big deal :-)
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