Another Example Of Patents Holding Back Innovation
from the seem-to-see-an-awful-lot-of-these-lately dept
Over the years, as we've pointed out the various problems with the patent system, it's never ceased to amaze me that defenders of the system repeatedly like to claim that the patent system only puts in place incentives to innovate. Repeatedly, we've tried to point out that it clearly has two competing forces -- one that adds incentives for some kinds of innovation, and others that hinders innovation. The question is how these two forces balance. For a variety of reasons, it appears that the hindering of innovation is weighing way too heavily on the patent system these days, and that's what we keep trying to point out. To deny that there's any disincentive from the patent system is to willfully ignore basic economics concerning monopoly power (and, perhaps, common sense). Someone who prefers to remain anonymous has passed on the latest such example of the disincentive from the patent system, pointing to the story of a guy who was unable to build an open source proxy system, because it ran afoul of someone's patents even though it appears the idea was created independently. Here's a clear case where the net benefit probably would have been much higher had the guy been allowed to create his software. Obviously, that's not true in every case -- but the point of bringing examples like this up are to show where the patent system fails, and where it can be improved.
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It really is that simple. But when you get paid 1000 dollars per patent... screw common sense is the mentality I would assume the patent office applies.
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My Ignore Patents Strategy
Here's how it works. A small technology firm, perhaps a start-up, begins the process of turning their great idea into a product or service that will serve the market and reap financial success for the company. The usual state of affairs is for this troupe of intrepid entrepreneurs to assemble seed capital. Instead of giving the bulk of that seed capital to patent attorneys to perform a patent search on their great idea to see if someone else already owns the rights to it, they deliberately tell the patent attorneys to take a hike. They specifically don't want to know if this idea has been patented before.
Here's why: If they're not successful, no one's going to sue them anyway - so the money spent on the lawyers would have been wasted.
If these paragons of the American Dream are successful, and there is widespread demand for the innovation that they've brought to market, the patent holders will most definitely send their legal-kneecappers around with the traditional cease & desist, FUD and other tactics in preparation for a lawsuit to take what others have worked to build.
Here's their defense: The young entrepreneurs state flat out that:
- They had no knowledge of the patent because they deliberately did NOT pay for the search.
- They paid attention to the marketplace, and in the marketplace there was no existing product/service that was like theirs.
- since there was no similar product in the marketplace, they had a reasonable expectation that it was 'unique' by definition of the USPTO, and
- If, in utter ignorance of the existense of this other patent, they still came up with the same idea, then by definition the idea was not 'unique' and not 'non-obvious', therefore invalidating the original patent.
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Re:
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Re: My Ignore Patents Strategy
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Re: Re: My Ignore Patents Strategy
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Re: My Ignore Patents Strategy
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Agreed
This quote from Joshua Lerner, an economist at Harvard Business School, in the Economist magazine is illuminating: “one of the big lessons that comes out of the economic literature on patents is that ‘one size fits all’ doesn’t make sense.” The implication is that—given the conflicting needs of different industries, different companies and different peoples around the world—the patenting authorities need to find a greater variety of tools for protecting intellectual property than they have at present."
In other words we may need a different system of patent rules for each industry. It is worthwhile to remember that software wasn't patentable until 1981, and business processes weren't patentable until 1998. The courts may have f'ed up big time by making these changes--these two areas seem to be where patents are abused the most.
There seems to be some scope for trivial-bullshit patents in Biotech as well (patenting of every lame molecule), but there seems to be less possibility of crap patents in fields like say Hydraulics or Airframe Design.
Perhaps the courts need to make a distinction between different broad areas of knowledge, to acknowledge the different systems/processes of innovation in each area.
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You got to be kidding Mike!
Which of these situations do you think offers more of an incentive to be innovative:
1) Don't get a patent on your idea, spend a ton of money developing and marketing your idea, and once you prove that your idea was successful, a large company comes into your market, steals your idea and leaves you eating dirt.
2) Get a patent on your idea, spend a ton of money developing and marketing your idea, and once you prove that your idea was successful, large companies want to buy your patent or pay you a license fee to also use your idea.
So, since anyone with half a brain will choose number 2, your only remaining argument is for those that get patents on an idea, but then can't/don't do anything to bring it to the market...
In that case, patents may slow things down a little in bringing an innovation to market, but they don't inherently prevent innovation. If an innovation has true market potential, then it will make it to the market even if someone else owns a patent on that idea. Here's why...
What good in having a patent if you don't make any money from it? So, a patent holder will try to monetarily benefit from his invention in one of two ways:
1) Make money with the invention itself - If the patent holder is making money with his invention (by using/practicing it), then that's their source of profit, and they will use the invention's patent to prevent others from making a profit from their invention/idea.
2) License the invention to other companies - Is a patent holder going to ask such a high price to license his invention that nobody buy's it? Of course not...the license price will naturally float to what that the market will pay for it. If you disagree with this assessment, then please provide examples of inventions that you feel never made it to the market because their license was priced too high, and I will show you patents that really never had good marketing potential.
Someone else's patent for an invention is not a brick-wall in bringing that invention to market - it's just a bump in the road. If someone owns a patent on an invention, but can't/doesn't bring it to market, it's not the patent system's fault that the invention is not making it to market. It's probably because the invention doesn't really have too much market potential. Because if an "idle" patent (the owner is not doing anything with the patent) did have a good market potential, then more then one other company would realize this and that money could be made with the invention, even with paying a license fee.
Thus, the invention would still make it to the market even when someone else owned a patent for it. But, if an invention doesn't really have a good market potential, then no one else is going to be interested in it, and that will be the main reason why it never makes it to the market, not because of the patent.
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Re: You got to be kidding Mike!
There is a third valid argument with patents, that of "bad" patents (patents being issued for "obvious" ideas). I agree that this is a problem, but it's not an inherent problem with "patent system"...it's a problem with the patent examiners.
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You got to be kidding Anonymous Coward
Patents were instituted in response to the threat of trade secrets remaining private knowledge. If the idea your patent covers couldn't have naturally remained a trade secret, then it doesn't deserve patent protection. Period.
You've got it all screwed up, Anonymous.
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Misperceived incentives.
Patents assure that innovators don't have any real incentive to keep their inventions secret, but instead, to put are incentivized to publish them in the public domain, in exchange for a limited-term monopoly. If all these great software ideas had never been disclosed, then all of these genuises that complain about being kept from using 'standard routines' or "simple codes' would not ever have known much of those innovations.
Presume there's no reverse-engineering, then software writers could keep all their code secret. Surely that hold back further innovation by others. Presume that to use Windows or Mac OS, you had to connect on the internet to those companies servers, for which they'd charge a "toll" for the time you used their trade-secret software. Presume that if you needed medication, you'd have to go to one or more clinics owned by big-pharma, where they'd inject you with their trade- secret remedy. I only can see that as inimical to a continuum of innovations engendered by our patent system. Incentives to keep innovations secret is what the patent clause in the Constitution was intended to avoid. Too many comments argue over who should get rich off an innovation, or complain pointlessly about patents for useless gimmicks.
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Re: You got to be kidding Anonymous Coward
However, my post wasn't talking about the quality of some patents....it was talking about how the patent system (with a valid patent) promotes innovation and is an incentive to take an idea to market.
So, it appears you've got it all screwed up of what my post was all about :)
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Re: My Ignore Patents Strategy
Do you want mind-reading laws in this coutry?
Polygraph test, anybody ?
You just can't prove that you didn't see or hear about certain patent if all patents are available for everybody ion the world to see from www.uspto.gov
Unless, of course, you can documentally prove that you spent all the time since patent was publisehd in a prison cell without any communication with outside world.
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wtf bro?
Patents are meant for the sole purpose of keeping one person's real, and produced, invention or innovation from being taken and produced more cheaply by a competitor that did not invent the product. Programs should not be covered under patent law, but more so under trademark law, registering a certain process or symbol to one person/group. Patents were never meant for a company to "invent" something, but leave it for liscensing. If you cannot make the product, you do not deserve the patent.
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Re: You got to be kidding Mike!
Um. No. Do you really mean to say that a monopoly doesn't hold back innovation?
Which of these situations do you think offers more of an incentive to be innovative:
1) Don't get a patent on your idea, spend a ton of money developing and marketing your idea, and once you prove that your idea was successful, a large company comes into your market, steals your idea and leaves you eating dirt.
2) Get a patent on your idea, spend a ton of money developing and marketing your idea, and once you prove that your idea was successful, large companies want to buy your patent or pay you a license fee to also use your idea.
That's an extremely simplistic and, frankly, wrong view of the world. A small company needs to be able to compete. Often they can do that by being a lot more nimble than larger companies who are slow to act, don't have the same level of customer service, etc. Plus, by continually innovating, a smaller company can often stay well ahead of the larger entity.
If the idea is really so easily copied in a way that destroys their business, then the small company has no business being in business. Welcome to capitalism.
Do we really want to reward companies who can't compete? You seem to be saying yes... All we're saying is that doesn't seem right to us.
So, yes, patents have both effects, and to deny that it hurts innovation in some ways is flat out wrong. The real question is how the two effects balance out.
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Re: Misperceived incentives.
Why is that simplistic? The entire point of the patent system is flat out to add incentives for innovation. So, to be honest, that's the only way it should be judged.
As for your second point about the publishing, that doesn't really apply for most software patents we're talking about, because those patents don't reveal the code, just the concept -- and that gets revealed in the software itself. Most of the patent lawsuits around software aren't about people copying the ideas or reverse engineering, but people coming up with things independently.
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Re: Re: My Ignore Patents Strategy
Funny how you need perfect 100% proof that an idea was developed independently, but for normal crimes you just need beyond a reasonable doubt.
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Are you Commies or What?
Oh, the new software was open source and would be GIVEN away? There was no money associated with it? I'm sorry, if it was such great software then people would pay for it, and if no one would pay for it, then it has no value.
Or all we all Communists here? All IP should be held by "the people"?
Mike is getting flakier all the time tilting at this IP windmill. He never looks at the other side.
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Re: Are you Commies or What?
Yeah, man, that Linux and Apache... boy, it has no value at all. It hasn't contributed to the economy at all!
Or all we all Communists here? All IP should be held by "the people"?
I always find this to be the most amusing argument of them all, because our argument is actually the reverse of communism -- it's all about capitalism.
Our argument is that the market should determine who wins and who loses, not the gov't by setting up artificial scarcity in the form of patents. It's the side that's fighting for patents that seems much more "communist" in insisting that those who can't actually build a viable market for their product deserve to somehow be rewarded -- even if they failed in the market.
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Re: Re: Misperceived incentives.
Your view about "most lawsuits" sounds like its out of your head instead of anyting quantative. Many, many patent suits involve formerly-connected parties, e.g., former employees, vendors, servicepersonnel, researchers, who go off on and get involved in a competing line of products.
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Re: Re: You got to be kidding Mike!
It's not a wrong view of the business world at all - it's actually a simple fact: if a small company grows a market to a certain point, big companies will take notice and jump into that market. Perfect example, Alienware. They created a market for high-cost performance gaming PC's. Guess what, Dell noticed and got in the market.
My Point #1: Patents help create an incentive to innovate.
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From the start, the odds are against small companies from succeeding. Not only do they have to deal with the stress of finding a good marketing person, they also have to find funding to bring their idea to market.
So, if some small company happens to beat all those odds and successfully bring a new idea to the market, you feel that there should be absolutely nothing to stop a big company from entering the market and taking it over? Yeah (sarcastically), having no protection from this very plausible scenario is a REAL incentive to innovate!
I'm sorry, but I feel that if there were no patent system, most people would never bother risking their time or money to develop an idea because there would be absolutely nothing to stop a big company from taking it all away. So why bother taking all that risk in the first place? Result: Loss of innovation due to "why bother?".
Can you understand that your "well, that's competition", and "Welcome to Capitalism" attitude is NOT an "incentive" to bring one's ideas to the market? But, by having some help to limit the competition (via a patent), it actually provides an incentive to take the risk.
My Point #2: Patents do NOT prevent an innovation from reaching the public.
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You also seem to be confused on another issue. You keep saying that it's wrong to "reward" someone for their invention if they can't compete. I'm going to assume that your real reason for this attitude is that, by giving someone a monopoly to an innovation, it harms the public because the public won't be able to benefit from the innovation if the inventor "can't compete". If you think this, then please provide us a few examples of an innovation that did not make it to the market because a patent owner decided to neither sell his invention to the public or licensed it to someone else. You will find that you can't find many examples of this. Do you really think that if an inventor is not making much money marketing his own invention, that he would rather exercise his monopoly power and "sit" on his invention, rather then make more money by licensing it to someone else who could do a better job marketing it? Of course not. So, your point of patent's holding back innovation is unsubstantiated. And if you disagree with this statement, then again, please provide examples of innovations that were prevented from reaching the public due to a patent.
All of my above points are meant for a truly "good" patents. I agree that there are "bad" patents out there. But, even though they only help to feed the lawyers, those bad patents are still not preventing "true" innovation from reaching the public.
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Re: Re: Re: You got to be kidding Mike!
... at which point Alienware continued to dominate Dell, because Dell couldn't convince people that their machines were nearly as good or desirable as Alienware.
That's why Dell eventually bought Alienware.
That's a perfect example *disproving* your point. The small company was able to beat the big company at its own game by offering something better. When Alienware came on the scene the common wisdom was that no one could successfully start up a new PC maker... and they did it by being innovative and giving people something different. That's called competition and it drives everyone to be better.
You just helped prove my point.
From the start, the odds are against small companies from succeeding. Not only do they have to deal with the stress of finding a good marketing person, they also have to find funding to bring their idea to market.
That's called the challenge of going into business. Lots of businesses fail. It's all about execution. I'm not sure what that has to do with patents.
So, if some small company happens to beat all those odds and successfully bring a new idea to the market, you feel that there should be absolutely nothing to stop a big company from entering the market and taking it over? Yeah (sarcastically), having no protection from this very plausible scenario is a REAL incentive to innovate!
Except this happens all the time. Small companies come onto the market all the time because they see a need and they can serve a need.
As for big companies coming into the market, THAT'S A GOOD THING. It drives everyone to keep innovating. If your product is so simple that a big company can automatically dominate your market when they want to, then you've done a bad job. A small company needs to be able to out-innovate and out-maneurver a big company -- just like what Alienware did.
I'm sorry, but I feel that if there were no patent system, most people would never bother risking their time or money to develop an idea because there would be absolutely nothing to stop a big company from taking it all away. So why bother taking all that risk in the first place? Result: Loss of innovation due to "why bother?".
I spend a lot of time around entrepreneurs, and I've never once heard that as an excuse. Entrepreneurs innovate because they see a need, and they know the market will reward them for that need. They thrive on the idea that they might compete against a big company -- knowing that it's about the execution and the ability to keep beating them.
Can you understand that your "well, that's competition", and "Welcome to Capitalism" attitude is NOT an "incentive" to bring one's ideas to the market? But, by having some help to limit the competition (via a patent), it actually provides an incentive to take the risk.
Hell yes it's incentive. It was the incentive for starting my business. We compete with a lot of much bigger players, and the reward is beating them at their own game, and getting companies to give us money instead of them. That's the incentive and it has nothing to do with patents.
Limiting competition *slows down* innovation, because companies stagnate and have no incentive to keep innovating.
If you think this, then please provide us a few examples of an innovation that did not make it to the market because a patent owner decided to neither sell his invention to the public or licensed it to someone else.
You just asked me to prove a negative. Sorry, it doesn't really work that way. However, the whole point of this post was an example of exactly what you say doesn't happen. And, in the past we pointed to plenty of university research that doesn't happen because of patent issues.
NTP tried to shut down RIM (who did innovate) due to patents. Over a billion dollars was wasted on that case and settlement that should have gone towards further innovation.
Do you really think that if an inventor is not making much money marketing his own invention, that he would rather exercise his monopoly power and "sit" on his invention, rather then make more money by licensing it to someone else who could do a better job marketing it?
Given the number of companies doing that these days, yes, I think it's fairly obvious that there are a number of patent hoarding companies who think exactly that way.
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Re: Re: Re: Re: You got to be kidding Mike!
Actually, my only point with my Alienware example was to prove that if a small company does pull off creating a successful new market, they will eventually get competition from a big company. It's a fact and that was my only point. But, since you ignored that point and instead tried to use my example against me, please let me return the favor...Why do you think Alienware sold out to Dell? If Alienware's PC's were so much "more desirable" then Dell's, why didn't the owner's of Alienware hold onto their company and keep reaping the financial rewards of their dominance in the market? I'll tell you why, Alienware sold out because they were faced with the very real possibility that Dell will eventually get "it right" and kick Alienware's ass out of the market. So, Alienware choose to take the money and run instead of facing a slow death. But, if there was a “Patent” to some how protect Alienware’s market from Dell, they probably would not have sold out to Dell.
"The small company was able to beat the big company"
Yes, this can sometimes happen, but it's not the norm by any means. So, please don't mention any more of these infrequent "facts" to counter what happens the "majority" of times in the real world. My whole discussion with you is based on what happens most of the time, not sometimes. By trying to counter with things that happen nly "sometimes", it just comes off as a desperate attempt to save face,
because your examples are only "exceptions" and not the normal. If you continue to bring up facts that are really insignificant to what typically happens most of the time, then it will be a waste of my time to
continue trying to have a rational conversation with you.
"I spend a lot of time around entrepreneurs, and I've never once heard that as an excuse. Entrepreneurs innovate because they see a need, and they know the market will reward them for that need. They thrive on the idea that they might compete against a big company -- knowing that it's about the execution and the ability to keep beating them."
And yes, true entrepreneurs have the ego or "drive" that thrive off of the satisfaction of beating a larger company. But, guess what? Entrepreneurs are not the only ones who come up with ideas. So, what do you think happens to all those ideas that come from non-Entrepreneurs who are not so ego-driven in taking big risks to bring their idea to market? One thing's for sure, if there wasn't a patent system, most if not all of those ideas would never see the light of day. Result: Loss of innovation. But, because we do have a patent system, many of those everyday inventors will move forward with their idea because they know they have something (the patent) to help prevent a large company from stealing their idea. Result: Increase in innovation.
"Limiting competition *slows down* innovation, because companies stagnate and have no incentive to keep innovating." I could equally say that if a patent was slowing down a company from bring an innovation to the market, it could actually be an incentive for them to innovate a new way around the patent, and maybe this new way is a better solution then what the original patent offered ;)
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Get rid of Patents altogether
The argument for patents is to promote creativity and inventiveness. I put it to you: If someone does not want to invent or research without the protection of a patent then let him cease to do so! There is a trillion inventions NOT being done today anyway, a few more will not make a difference.
Most inventions will not be held back even if they cannot be patented, this is clearly shown by history.
Most inventions are done spontaneously or by people without monetary gain in mind. Look at Open Source as an excellent example.
So to those who don't want to invent without the existence of a patent system I say: "Well, don't invent, then". Someone else will invent and create anyway - though probably not the same ideas and goods that we have today. But so what?
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Re: Re: Re: Re: You got to be kidding Mike!
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Re: Re: Re: Re: Re: You got to be kidding Mike!
Mike, nothing to say about alienware or entrepreneurs?
I think my answer was pretty clear. Alienware was a success story. Because they chose an exit route of cashing out now doesn't take away from that now. In fact, it shows just how well they had done against Dell that Dell realized they *couldn't* compete. If Dell could just steal the idea and beat them in the market... why didn't they?
Because they couldn't. Alienware was more innovative and ran circles around them, despite Dell being a lot larger with a lot more money and power in the market. They still couldn't compete.
You claim your point was that the small company would eventually get competition from the big company, but that's not what you were saying originally. Of course they'll get competition if they're good and they've found a market, but Alienware shows that a small company can quite often outrun and out innovate the big company.
So what else do you want me to say? My point was proven.
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an invention
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May I request you to forward it or reply me with the proper way.
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cell- +9198300 08676
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Companies Valuable Because of Patents
It strikes me that a number of people on this forum suffer from the "Little Person Syndrome". This is an affliction common to those who either lack the ability or the gumption to create things themselves. They are smart enough to recognize their limitations but their egos cannot stand admitting that they are not as creative as others. So they rationalize that when they copy others work and get in trouble for doing so that other's creations should be socialized for their personal profit.
The software industry seems to be full of hacks who lack creativity. These hacks have a profit motive, in that they expect to make a living from consulting service, books, and other means. They use so called open source as a loss leader to generate revenue. In the end they are just as bad as the big business patent pirates.
America's founding fathers recognized the importance to advancing the sciences through full disclosure of inventions in exchange for the grant of a period of exclusivity. This kind of creativity is recognized as a property right in our constitution. America is the only country which defines this as a constitutionally protected property right.
In the end Mike and his supporters are arguing that they should be able to take others property.
Ronald J Riley,
President - Professional Inventors Alliance - www.PIAUSA.org - RJR"at"PIAUSA.org
Exec. Dir. - InventorEd, Inc. - www.InventorEd.org - RJR"at"InvEd.org
Change "at" to @
RJR Direct # (202) 318-1595
Generally available 9 AM to 9 PM EST
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Re: Companies Valuable Because of Patents
You make three HUGE assertions in this paragraph and back up none. I'd like to see you try, because all three are false, and easily proven as false.
It strikes me that a number of people on this forum suffer from the "Little Person Syndrome". This is an affliction common to those who either lack the ability or the gumption to create things themselves.
Resorting to insults is not proving your point.
They use so called open source as a loss leader to generate revenue. In the end they are just as bad as the big business patent pirates.
I am amazed that you would attempt to call the use of open source as a loss leader as being bad for society. Do we need to go through a basic economics lesson here. You do realize that when the price of inputs go down, that generally leads to a net *benefit* for society. In this case, with the cost of inputs being much lower, thanks to open source, the net benefit for society has been tremendous. Just look at how many revolutionary new internet services are built on open source technology. To claim this is bad for society makes me lose pretty much all belief in your credibility.
America's founding fathers recognized the importance to advancing the sciences through full disclosure of inventions in exchange for the grant of a period of exclusivity. This kind of creativity is recognized as a property right in our constitution. America is the only country which defines this as a constitutionally protected property right.
Ah, a nice rewriting of history here that ignores a few important things:
(1) Our founding fathers were very uncertain about this -- with Thomas Jefferson and Ben Franklin being particularly upset about this.
(2) Even if it really was their intention to set aside legal monopolies, changes to the patent system in the last few years has taken the system WAY away from its original intentions.
To ignore both of those things again makes me question your credibility.
In the end Mike and his supporters are arguing that they should be able to take others property.
In the end, Ronald again resorts to insults instead of arguments. I am NOT saying anyone should just be able to take anyone else's property. If Ronald actually bothered to READ my arguments he'd know that's not true. Instead of his kneejerk reaction, it might help if he read what I do write about: which is that the net benefit for society can be served much better without patents. It's not about trying to "take from others" but setting up the best overall system for encouraging true innovation for the sake of a net benefit to society.
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