Software Patent Supporter Tries To Pretend Google Harmed Without Software Patents

from the nice-try,-but...-no. dept

Tue, Jul 22nd 2008 10:44am — Mike Masnick

There's a somewhat bizarre and ethically questionable post up on the usually excellent Patently-O blog, hyping up the fact that Google may lose its patent on PageRank (which Google only holds a license to, since Stanford actually owns it). First off, this isn't new or particularly surprising. It's talking about the upcoming decision on the Bilski case, which we've discussed at length. The decision could impact all software patents, and the author is merely using the Google name to get extra attention.

Even worse, it's misguided attention. Google is hardly a massive patent shop. It does get patents, but has rarely (if ever?) enforced them. And the idea that Google's success is somehow predicated on its patents is pretty ludicrous. Independent studies have shown, repeatedly, that Yahoo and Microsoft's search technology is just as good, if not better than Google's. But people use Google because they trust Google and are comfortable using it. Google has built up a reputation -- and that has nothing to do with its patents. If Google lost all of its patents today, it would have little to no impact on Google's position in the market. If anything, it might help Google, as it would also probably end a bunch of the silly patent lawsuits that have been filed against Google.

Finally, the post is ethically questionable, as its author, John Duffy, was hired by a software company, RDC, to write an amicus brief in the Bilski case pushing for the position that software should remain patentable. This is not disclosed in the post. In other words, he's clearly biased in favor of making sure that the end result of Bilski is that software patents remain in tact, and a little publicity campaign, stirred up by misleading claims that everyone's beloved Google will somehow be harmed could help push public sentiment towards allowing software patents.

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Filed Under: bilski, john duffy, patents, software patents
Companies: google, rdc

64 Comments

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Willton, 22 Jul 2008 @ 11:06am

Is everyone biased?
Must everyone that works in patent law be biased? Duffy is one of the most authoritative voices in patent law. The fact that a software company asked him to write an amicus brief that's in conformity with his own opinion should not unduly color his authority on the subject of patent law.

If Duffy is biased, then so are you, as you appear to be regularly employed by folks who do not like the patent system.
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eleete, 22 Jul 2008 @ 11:12am

Patents
We don't need no stinking patents.
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dorpass, 22 Jul 2008 @ 11:33am

Re: Is everyone biased?
Willton, it's not "if Duffy is biased," he is actually biased. In case that amicus brief was hard to read for you. And yes, if he writes an article that supports a case in which he is involved in anyway, he should disclose it. That's called ethics, not commonly used, but still nice to see from time to time.

Bringing Mike's bias into the discussion is idiotic, he didn't file an amicus brief in an ongoing case. If you have trouble figuring out a difference between business research and a lawsuit, you should step away from the keyboard.
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Anonymous Coward, 22 Jul 2008 @ 12:22pm

"We don't need no stinking patents." by eleete

QFT
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Medbob, 22 Jul 2008 @ 12:59pm

Ill-advised
Software patents are at best ill-advised. At worst they are an unnatural encumbrance upon the pyramid of ideas that fuel progress in the software art.

Would you patent the image of a tree?
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Mike (profile), 22 Jul 2008 @ 1:10pm

Re: Is everyone biased?
Must everyone that works in patent law be biased? Duffy is one of the most authoritative voices in patent law. The fact that a software company asked him to write an amicus brief that's in conformity with his own opinion should not unduly color his authority on the subject of patent law.

The problem was that he did not disclose his association with the case. That seems like pertinent information. The fact that almost every other site reporting on this matter do not disclose this, and position Duffy as totally unbiased to this issue is telling.

If Duffy is biased, then so are you, as you appear to be regularly employed by folks who do not like the patent system.

Can you really not tel the difference? First, we do no public advocacy work. Duffy does. Second, we do not do any work with any customers having anything to do with the patent system.

Third, not a single customer of ours agrees with our view of the patent system entirely. Some may think it needs reform, but nowhere near as extreme as the reforms we suggest.

So I'm not sure what kind of "bias" you think we have, unless it's that companies who disagree with our view on the patent system sometimes employ us for work that has nothing to do with patents.
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Robin, 22 Jul 2008 @ 2:03pm

Re: Re: Is everyone biased?
Well played Mike!

Being a writer/publisher/blogger/journalist/something imho you put your natural human biases out there, in the open, every single day. AFAIK, everything pertinent has always been disclosed by you and your team; your heart, opinions and research are on your sleeve.

Mr. Duffy comes from another school I guess.
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MLS, 22 Jul 2008 @ 3:03pm

Re: Re: Is everyone biased?
"The problem was that he did not disclose his association with the case. That seems like pertinent information. The fact that almost every other site reporting on this matter do not disclose this, and position Duffy as totally unbiased to this issue is telling."

Obviously you do not read Patently-O on a regular basis, otherwise you would have read several articles regarding Bilski where Professor Duffy's role was clearly noted. You would also have had the opportunity to read the brief he co-authored, as well as the briefs submitted by the parties and by all other amici.

"...we do no public advocacy work."

Techdirt apparently does not formally, but it seems to me this blog (to which you and one or more of your colleagues contribute) certainly engages in public advocacy.
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Mike (profile), 22 Jul 2008 @ 3:20pm

Re: Re: Re: Is everyone biased?
Obviously you do not read Patently-O on a regular basis

Sure I do. How do you think I recognized his involvement?

otherwise you would have read several articles regarding Bilski where Professor Duffy's role was clearly noted.

But it was not noted in this case, and that story is getting linked widely (it was on Techmeme this morning, with most of those linking to it taking it at face value).

You would also have had the opportunity to read the brief he co-authored, as well as the briefs submitted by the parties and by all other amici.

Which we linked to and discussed.

http://www.techdirt.com/articles/20080409/011406799.shtml

By your very reasoning in this comment, one would conclude that you do not read Techdirt regularly, since you seem to have not noticed this.

Do you see how silly your reasoning is?

Techdirt apparently does not formally, but it seems to me this blog (to which you and one or more of your colleagues contribute) certainly engages in public advocacy.

No, the point (which I thought was clear, but apparently not) was that we do not get paid for public advocacy work. Techdirt has no business relationships with anyone concerning what we discuss on this site. It is entirely editorially independent of the work we do for clients, which is more focused on advising and connecting companies with experts.

Willton is suggesting otherwise. That because we do some work providing analysis to companies, many of whom are very much in favor of software patents, that we're somehow biased.

Duffy, on the other hand, is clearly heavily involved with the Bilski case, and paid well to make that position clear to the court and the public at large. The same cannot be said for us in any way.
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Oh Snap, 22 Jul 2008 @ 3:34pm

Owned.
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Willton, 22 Jul 2008 @ 4:10pm

Re: Re: Is everyone biased?
The problem was that he did not disclose his association with the case. That seems like pertinent information. The fact that almost every other site reporting on this matter do not disclose this, and position Duffy as totally unbiased to this issue is telling.

Does this direct quote from the article not disclose his association with the case?

On a recent panel held after the oral argument in Bilski, I raised the issue of Google's patent claim with Ray Chen, the lawyer who represented the PTO in Bilski, and he asserted that, under the PTO's position, the Google claim was probably still patentable.[8]
...
[8] See Tony Dutra, Bilski Opponents Renew Debate on Patentability Formalisms and Standards (May 30, 2008) (reporting my debate with Chen on whether the PTO's position undermined Google's patents).

If other sites linking to this article don't want to do their homework and decide to paint Duffy as an unaffiliated party, then that is a problem with the other sites, not with PatentlyO.
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Mike (profile), 22 Jul 2008 @ 4:24pm

Re: Re: Re: Is everyone biased?
Does this direct quote from the article not disclose his association with the case?

No, I don't believe it does. It says that he was involved in a panel held after the Bilski oral argument, but that doesn't say anything about Duffy being involved in the actual case or filing an amici brief on behalf of a company.

If other sites linking to this article don't want to do their homework and decide to paint Duffy as an unaffiliated party, then that is a problem with the other sites, not with PatentlyO.

Wow. So disclosure is meaningless and it's all up to readers to discern for themselves if someone is involved in a case they're writing about? Most of the rest of the world doesn't think so. Disclosure is a pretty clear concept, and "it's up to the readers and others to do the research and figure it out" is not a very strong comeback.
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Wilton-Son, 22 Jul 2008 @ 4:45pm

Re: Is everyone biased?
No, not everybody is biased, however, if a software company hires somebody to write a blog on whether software should or shouldn't be patentable, you best believe that the blog post will most likely contain many biased opinions leaning in favor of the company that paid for that opinion.

Give your head a shake
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MLS, 22 Jul 2008 @ 5:18pm

Re: Re: Re: Re: Is everyone biased?
For any lawyer who follows Section 101 jurisprudence, Professor Duffy is well known for his scholarship. For any lawyer who has followed Bilski, Professor Duffy's involvement is well known. For any lawyer who listened to the oral argument in Bilski, Professor Duffy's involvement is well known. For any lawyer familiar with the CAFC's invitation in its en banc order for briefs on 5 distinct question of interest to the court concerning Section 101, Professor Duffy's participation is only too apparent, particularly since he was asked to participate in the oral argument.

This was a blog post by a law professor in a lawyer blog where it hardly needs mentioning who Professor Duffy is. To try and frame it as a matter of "ethics" is in my view disingenuous.

Importantly, not one who has commented about the article at Patently-O has wondered aloud "Who is this guy, and what is his affilitation with the issue(s)?"
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Mike (profile), 22 Jul 2008 @ 5:30pm

Re: Re: Re: Re: Re: Is everyone biased?
For any lawyer who follows Section 101 jurisprudence, Professor Duffy is well known for his scholarship. For any lawyer who has followed Bilski, Professor Duffy's involvement is well known. For any lawyer who listened to the oral argument in Bilski, Professor Duffy's involvement is well known. For any lawyer familiar with the CAFC's invitation in its en banc order for briefs on 5 distinct question of interest to the court concerning Section 101, Professor Duffy's participation is only too apparent, particularly since he was asked to participate in the oral argument.

Neat trick: redefine the audience to only people who would know about who he is already... ignoring the fact that the post is getting widespread attention from non-lawyers.

This was a blog post by a law professor in a lawyer blog where it hardly needs mentioning who Professor Duffy is.

Mentioning a direct conflict of interest concerning the subject he is writing about certainly does seem pertinent.

To try and frame it as a matter of "ethics" is in my view disingenuous.

From you, MLS, this is hilarious, since you try to frame nearly EVERY post that I write about intellectual property as being about ethics.

I think I've cracked the code: when a post is about something where MLS can't actually deal with the issues at hand, he resorts to claiming that we're all ethically challenged. When it's pointed out that someone has done something that is ethically challenged, but who sides with MLS on things, suddenly it's not about ethics at all. Witness this post and the one from last week on the BSA's stats.

Importantly, not one who has commented about the article at Patently-O has wondered aloud "Who is this guy, and what is his affilitation with the issue(s)?"

Talk about disingenuous.

First off, the second comment pointed out Duffy's conflict of interest was not disclosed.

Second, you phrased that it in such a weasely way. As if people would ask what his associations are? Does that normally happen on any post? NO. That's the whole point. People ASSUME that a writer of such things is not biased and not being paid to state his opinion. So of course no one asks what his affiliation is with the issue: they ASSUME he's NOT affiliated with the issue, because that's exactly what you assume of someone who writes something like that and does not disclose the fact that he's closely affiliated to it.
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Joe Smith, 22 Jul 2008 @ 5:51pm

Re: Is everyone biased?
No, but you have to remember that PatentlyO (run by Dennis Crouch) is primarily by and for patent lawyers and whichever side of the patent street they work it is in their personal financial interest to have expansive rules on patentability and draconian rules on patent enforcement. Its like criminal defense lawyers profiting from stricter law enforcement.

Some of the PatentlyO posters are blinded by self interest and some are not but no one should read the blog (which is a good blog and well run) expecting the posts to be unsullied by personal interest. Some posters may be altruistic or idealistic but most will have a more mundane motivation. My observation is that Dennis Crouch himself (for whom I have great respect and I wish him well in his new role as father) when he moved from private practice to the academic world became more open to the possibility that the patent system might benefit from reform.
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MLS, 22 Jul 2008 @ 5:57pm

Re: Re: Re: Re: Re: Re: Is everyone biased?
If Professor Duffy has posted this article on a website where few, if any, knew who he was and his association with In re Bilski then your argument would have merit. However, this was not the case.

As for the article appearing on other sites, they all link back to Patently-O. I certainly do not believe it is incumbent on Professor Duffy, when posting an article on Patently-O to colleagues, to meet your rigid ethical test merely because someone might happen to see a reference to it at another site.

Why am I left wondering just who that poster was you mentioned...you know, "anonymous"? Could it be...? Nah...it is just my imagination running amuck.
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Willton, 22 Jul 2008 @ 6:23pm

Re: Re: Re: Re: Re: Re: Is everyone biased?
Neat trick: redefine the audience to only people who would know about who he is already... ignoring the fact that the post is getting widespread attention from non-lawyers.

Mike, IT'S A LAW BLOG. The blog's target audience is the legal community. The people who post on the blog are lawyers, patent agents, and examiners. MLS did not redefine who the audience is; he merely restated it.

Duffy certainly did not intend for non-lawyers to read his article; if he had, he would have posted it in other forums. He chose PatentlyO because he was targeting the IP legal community. Whatever attention Duffy's post is getting from non-laywers is merely incidental to others posting about it. Chastising Duffy for not disclosing facts that his target audience already knew is unwarranted.
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Willton, 22 Jul 2008 @ 6:36pm

Re: Re: Re: Re: Is everyone biased?
Wow. So disclosure is meaningless and it's all up to readers to discern for themselves if someone is involved in a case they're writing about? Most of the rest of the world doesn't think so. Disclosure is a pretty clear concept, and "it's up to the readers and others to do the research and figure it out" is not a very strong comeback.

Funny, that's what you often say every time someone challenges you to point out evidence to back up your contentions.
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Mike (profile), 22 Jul 2008 @ 8:43pm

Re: Re: Re: Re: Re: Re: Re: Is everyone biased?
As for the article appearing on other sites, they all link back to Patently-O. I certainly do not believe it is incumbent on Professor Duffy, when posting an article on Patently-O to colleagues, to meet your rigid ethical test merely because someone might happen to see a reference to it at another site.

My "rigid ethical test"? It's not rigid at all. It's quite straightforward: if you have a conflict of interest, disclose it. That's not a rigid ethical test: that's the most basic ethics of any sort of writing.

Why am I left wondering just who that poster was you mentioned...you know, "anonymous"? Could it be...? Nah...it is just my imagination running amuck.

Implying that it's me? That would be wrong. First of all, I never post anonymously. I have no problem sticking up for what I believe in.

Second, it was actually from that comment that I was reminded that Duffy wrote RDC's amicus brief.
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Mike (profile), 22 Jul 2008 @ 8:50pm

Re: Re: Re: Re: Re: Re: Re: Is everyone biased?
Mike, IT'S A LAW BLOG

And thus any conflicts of interest need not be disclosed? That seems weird.

The blog's target audience is the legal community. The people who post on the blog are lawyers, patent agents, and examiners. MLS did not redefine who the audience is; he merely restated it.

From the title and the subject matter (focusing in on Google's patents, for example, for no reason other than to generate outside interest) it's quite clear this was NOT published just to the legal community.

Duffy certainly did not intend for non-lawyers to read his article; if he had, he would have posted it in other forums. He chose PatentlyO because he was targeting the IP legal community. Whatever attention Duffy's post is getting from non-laywers is merely incidental to others posting about it. Chastising Duffy for not disclosing facts that his target audience already knew is unwarranted.

Really? You honestly think that there's no ethical questions in not disclosing a conflict of interest? I just don't see how that is. Perhaps it's because I deal with plenty of writers who know that the most fundamental point is to disclose any potential conflicts.

I had thought this was quite common in legal circles as well.

Consider me surprised that lawyers don't consider this an ethically questionable area.
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Mike (profile), 22 Jul 2008 @ 8:55pm

Re: Re: Re: Re: Re: Is everyone biased?

Funny, that's what you often say every time someone challenges you to point out evidence to back up your contentions.

Are you honestly having trouble recognizing the different scenarios we're discussing here? I can't believe that you can honestly not see the difference. But, I'll spell it out for you:

Situation #1: We have an "expert" in patent law, making the case for something that will clearly get more widespread media attention (otherwise, why bring up Google at all?), and not disclosing that he's been paid to advocate for one side in an as-yet-undecided case, which could potentially be influenced by a public outcry concerning this post. And you say "reader beware."

Situation #2: People ask me at nauseum to point them to evidence I've already pointed to in the past because they simply disagree with it.

Do you see how those are different scenarios? Do you see why situation #1 might be ethically challengeable, and to simply say "reader beware" is a problem? Do you see how situation #2 has no ethical dilemma at all?

Or are you really that ethically challenged?
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MLS, 22 Jul 2008 @ 10:34pm

Re: Re: Re: Re: Re: Re: Re: Re: Is everyone biased?
"Really? You honestly think that there's no ethical questions in not disclosing a conflict of interest? I just don't see how that is. Perhaps it's because I deal with plenty of writers who know that the most fundamental point is to disclose any potential conflicts."

There is not one point raised in the brief that you pronounce mandates a disclaimer as a matter of ethics that has not appeared in the numerous journal articles published over the years by Professor Duffy. Lawyers know who he is and what his scholarship involves. Since lawyers, and specifically those who frequent Patently-O, were the intended audience, certainly none of them were confused in the slightest because Professor Duffy is well known and highly respected within the law profession.

You insult the integrity of a respected colleague, and I for one take umbrage at your persistent attempt to denigrate his stellar reputation. It is one thing to make a mountain out of a non-existent molehill, but quite another to question the character of a person that I rather doubt you have ever met or exchanged correspondence.

I suggest you stick with economics and leave statutory interpretation of our laws, interpretations governed by judicial precedent, to those who are recognized experts in the appellate process.
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Mike (profile), 23 Jul 2008 @ 12:21am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Is everyone biased?
There is not one point raised in the brief that you pronounce mandates a disclaimer as a matter of ethics that has not appeared in the numerous journal articles published over the years by Professor Duffy.

Again, this wasn't those other articles by Prof. Duffy. This was a specific article, written in a manner that was clearly designed to get outside attention.

And honestly, I have NEVER once heard a reporter say that he added a disclaimer once in the past, so he no longer needs to disclaim stuff. Can you point to a reporter or news publications online standards that claims this is standard behavior? I'd be curious.

Look at the WSJ. Look at Kara Swisher. Every time she mentions Google, she makes clear her conflicts involving Google, even though her audience *mostly* already knows this.

You insult the integrity of a respected colleague, and I for one take umbrage at your persistent attempt to denigrate his stellar reputation.

Oh come on. You can't honestly be serious? You come here on a near daily basis and take particular efforts to insult me, often personally, and anyone who disagrees with you. You have also insulted Nobel Prize winning economists and many other well respected economists as well, calling them "nutty."

And here I am pointing out a *STANDARD* journalistic practice involving disclosure, and you get all huffy about it?

Get real.

It is one thing to make a mountain out of a non-existent molehill, but quite another to question the character of a person that I rather doubt you have ever met or exchanged correspondence.

Right, and I'm sure you were best buddies with the economists you called "nutty." Or all the people you insulted by calling them thieves and ethically challenged for listening to music.

I suggest you stick with economics and leave statutory interpretation of our laws, interpretations governed by judicial precedent, to those who are recognized experts in the appellate process.

And I suggest that you take a good look in the mirror, because you have shown yourself to be a near total hypocrite. You insult well respected people all the time, often with meaningless drivel and totally unsubstantiated claims.

And we point to a common journalistic standard, and you freak out.

You have no credibility here, and acting as if you do just makes you look that much sillier.

I can't believe that you have the gall to suggest I not comment on legal issues, when you seem to have no problem judging well respected economists as being somehow mentally incompetent -- when even you admit your knowledge of economics is less than rudimentary.

Please, get off your high horse, unless you care to retract your previous statements.
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Victor, 23 Jul 2008 @ 5:57am

RE... Is everyone biased
Game.
Set.
Match.

Rationality is such a sticky thing, no?
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Willton, 23 Jul 2008 @ 7:01am

Re: Re: Re: Re: Re: Re: Re: Re: Is everyone biased?
"Mike, IT'S A LAW BLOG"

And thus any conflicts of interest need not be disclosed? That seems weird.

No, you idiot. This is what happens when you break up people's sentences and take things out of context. Read paragraphs and respond to them as they are written: as paragraphs.

You were saying that MLS was redefining the audience. He was not. The fact that PatentlyO is a law blog means that it's geared towards those who practice law. That's who the audience is: lawyers. The fact that someone like you, a non-lawyer, frequents the site says more about you (a blogger looking for fodder for his own website) than it does about the blog's intended audience.

From the title and the subject matter (focusing in on Google's patents, for example, for no reason other than to generate outside interest) it's quite clear this was NOT published just to the legal community.

If someone publishes an article about Google in Seventeen Magazine, who do you think the target audience of that article is supposed to be? Economists? If someone were to publish an article about Google on Baseball Prospectus, who do you expect to read it? Politicians?

The forum was a patent law blog. The target audience was the patent law community. The patent law community, especially those who frequent PatentlyO, is well acquainted with the Bilski case and Prof. Duffy's involvement therewith. PatentlyO is not some newspaper that gets wide circulation; it's a small blog that's geared towards a niche in the legal community (a niche within a niche, if you will). If Duffy wanted to get the attention of non-lawyers, he wouldn't have confined his post to a patent law blog.

If you think that Duffy was attempting to fool anybody into thinking that he was uninvolved, you're kidding yourself. If you disagree with his position, then disagree with his position. Stop grasping at straws in trying to find ways to discredit him.
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gregorylent, 23 Jul 2008 @ 7:55am

pagerank is to blame for a lot more damage to the internet ecosystem than google likes to admit
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MLS, 23 Jul 2008 @ 8:28am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Is everyone biased?
Professor Duffy is not a reporter and his comments on a legal blog directed to colleagues can by no reasonable measure be considered a "publication intended for wide public dissemination" beyond the bounds of Patently-O. Had you read and analyzed his comments you would have noticed he was talking about USPTO decisions in some recent BPAI cases that are problematic given CAFC decisions in cases such as Nuitjen and Comiskey, as well as decisions by the USSC.

Yes, I have criticized some of the sources you persist on characterizing as proof of the positions regarding patent law to which you subscribe. In each case, however, my criticisms were directed to the data sets that were selected by the authors, as well as many of their generalized assumptions and comments made about the "patent process" that experience informs me were inaccurate. GIGO is a rule that applies with equal facility to even the works of noted economists. Perhaps you overlooked a comment I made some time ago that such economic analysis would greatly benefit from a collaboration between economists and lawyers in order to avoid such erroneous assumptions and generalizations.
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Mike (profile), 23 Jul 2008 @ 10:17am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Is everyone biased?
No, you idiot.

First rule when you have no argument: insult your opponent.

This is what happens when you break up people's sentences and take things out of context. Read paragraphs and respond to them as they are written: as paragraphs.

When you are in charge of how people are allowed to write, then you get to set the rules. Until then...

You were saying that MLS was redefining the audience. He was not. The fact that PatentlyO is a law blog means that it's geared towards those who practice law. That's who the audience is: lawyers. The fact that someone like you, a non-lawyer, frequents the site says more about you (a blogger looking for fodder for his own website) than it does about the blog's intended audience.

But he was. I find it amusing that neither you nor MLS have responded to the obvious point: this was clearly intended for a wider audience by the use of Google's patents, which are totally meaningless in this context.

Secondly, I still have yet to find a reporter who says that they don't need to disclose every time.

Again, can you point out a news organization who says "well, our intended audience should know we're biased, so we don't need to disclose conflicts of interest"? I'm really curious to find one.

If someone publishes an article about Google in Seventeen Magazine, who do you think the target audience of that article is supposed to be? Economists? If someone were to publish an article about Google on Baseball Prospectus, who do you expect to read it? Politicians?

And that somehow makes the need for disclosure meaningless? If someone publishes an article about Google in Seventeen Magazine and they have a conflict of interest, they'll disclose it -- even if most 17 year olds know the conflict. Ditto for Baseball Prospectus.

You still haven't explained why that standard doesn't apply here.

The forum was a patent law blog. The target audience was the patent law community. The patent law community, especially those who frequent PatentlyO, is well acquainted with the Bilski case and Prof. Duffy's involvement therewith. PatentlyO is not some newspaper that gets wide circulation; it's a small blog that's geared towards a niche in the legal community (a niche within a niche, if you will). If Duffy wanted to get the attention of non-lawyers, he wouldn't have confined his post to a patent law blog.

No, if he didn't want such attention, he wouldn't have used the headline grabbing (and totally unrelated) example of Google's PageRank patent.

And, again, you haven't explained why such disclosure is unnecessary even if some segment of the audience is familiar with Duffy's work on the case.

If you think that Duffy was attempting to fool anybody into thinking that he was uninvolved, you're kidding yourself. If you disagree with his position, then disagree with his position. Stop grasping at straws in trying to find ways to discredit him.

I don't think he was trying to "fool" anyone. I just pointed out that it was ethically questionable that he did not disclose the obvious conflict.

And, as for his position: I DID disagree with it. Or did you not notice?
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Mike (profile), 23 Jul 2008 @ 10:25am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Is everyone biased?
Professor Duffy is not a reporter and his comments on a legal blog directed to colleagues can by no reasonable measure be considered a "publication intended for wide public dissemination" beyond the bounds of Patently-O.

Really? And you get to decide those rules?

Had you read and analyzed his comments you would have noticed he was talking about USPTO decisions in some recent BPAI cases that are problematic given CAFC decisions in cases such as Nuitjen and Comiskey, as well as decisions by the USSC.

And this has what to do with this particular discussion?

Of course I read his comments.

Yes, I have criticized some of the sources you persist on characterizing as proof of the positions regarding patent law to which you subscribe. In each case, however, my criticisms were directed to the data sets that were selected by the authors, as well as many of their generalized assumptions and comments made about the "patent process" that experience informs me were inaccurate.

No, let's be quite clear about this. You did not criticize them. You did not offer a counterpoint. You did not dispute the data. You called the economists in question: "nutty." And then, only after it was pointed out to you that these were well-regarded economists, and their writing was supported by multiple Nobel Prize winners did you even bother to take your first look at their research.

You may want to go back and revise history, but you don't get to do so.

I'm sorry, but my pointing out that Duffy did not follow the most basic journalistic standards is a fact. It's not an opinion. It's not an insult. He chose not to follow those standards -- and that's something I find ethically questionable.

You call it an insult, but I don't see how it's an insult. It's just pointing out that he did not follow what is widely excepted ethical behavior.

You, on the other hand, personally questioned the mental stability of well-respected economists with absolutely no knowledge of their research or results -- which you later admitted.

I'm not sure how you can think that you come off better in this comparsion.

Perhaps you overlooked a comment I made some time ago that such economic analysis would greatly benefit from a collaboration between economists and lawyers in order to avoid such erroneous assumptions and generalizations.

Then once again we have proven beyond a shadow of the doubt that you haven't read much of the research I've pointed to, since plenty of it IS from a collaboration between lawyers and economists.

But, you know, why bother with facts when you'll just try to rewrite history later?
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Willton, 23 Jul 2008 @ 11:05am

PatentlyO on Mike's ethical criticism
A couple comments from PatentlyO on this blog's criticism of Duffy's ethics:

I just read the techdirt blog and commentary. I don't get it. Some people seem to be confused by the concepts of having an opinion and "conflict of interest," as a number of the commenters accused Duffy of having the latter. I don't see any conflict at all - he wrote an article that presumably reflects his opinions, which are in apparent conformity with his amicus brief. Where's the conflict? Who suffers from this supposed conflict?

The original blogger seemed to be saying that Duffy violated some "journalistic" code of ethics by not disclosing his participation in the Bilski case. My understanding is that Duffy has no personal interest in the case - he just participated in an amicus brief. So the problem is that somehow the reader of the present piece is deceived by not knowing that Duffy participated in drafing a brief that is consistent with the present piece? That makes no sense. He's unethical because he doesn't disclose that he's published other writings promoting the same viewpoint?

If the supposed ethical lapse is that Duffy is trying to impermissibly influence the CAFC opinion, then that's even more absurd. The CAFC knows very well who he is. If the CAFC is influenced by public outrage aroused by Duffy's post in Patently-O, then we have bigger problems.

This looks like nothing more than a not terribly sophisticated ad hominem attack, where the strategy appears to be to divert attention from the substance of a writing by attacking the author.

http://www.patentlyo.com/patent/2008/07/the-death-of-go.html#comment-123445132

In the world of potential lapses in journalistic ethics, I'm not sure that it would be possible to find a less trivial and meaningless example than a blog article on an obscure patent case.

http://www.patentlyo.com/patent/2008/07/the-death-of-go.html#comment-123441730
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MLS, 23 Jul 2008 @ 12:02pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Is everyone biased?
Clearly Professor Duffy is a publicity hound trying to indoctrinate the masses based upon his academic research concerning the scope of patentable subject matter as set forth in 35 USC 101.

On this assumption I utilized Google to identify mainstream media referencing him.

I must admit you are correct. His name does appear in at least one New York Times article. It can be found at:

http://query.nytimes.com/gst/fullpage.html?res=9C06E3DB1E3FF936A35754C0A96E958260
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Willton, 23 Jul 2008 @ 12:09pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Is everyone biased?
But he was. I find it amusing that neither you nor MLS have responded to the obvious point: this was clearly intended for a wider audience by the use of Google's patents, which are totally meaningless in this context.

If that's the case, then why did he not advertise this post in places other than on PatentlyO? Why did he not seek to make his article more accessible to the non-legal public?

Duffy pointed to Google's PageRank patent (or license, rather) because Google is considered a great innovator, and the PageRank system is considered truly inventive and unique to Google. Duffy was not using Google's name for recognition purposes; he was using Google's patent as an example of something deserving patent protection.

Again, can you point out a news organization who says "well, our intended audience should know we're biased, so we don't need to disclose conflicts of interest"? I'm really curious to find one.

Can you explain to me how writing an article that's in conformity with his co-authored amicus brief and his prior scholarship is somehow a conflict of interest?

And, again, you haven't explained why such disclosure is unnecessary even if some segment of the audience is familiar with Duffy's work on the case.

The familiarity with Duffy's work does not just extend to "some segment" of PatentlyO's readership; it applies to pretty much PatentlyO's entire readership. That's why it's unnecessary. If other blogs are going to link to Duffy's article and represent him as being an unaffiliated party to parties who don't read PatentlyO and aren't familiar with Duffy's work, then that is a problem with those blogs, not with Duffy.
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stv, 23 Jul 2008 @ 12:16pm

stop shilling!!!
would you wake up, already. google doesn't need to enforce their patents. they can control their markets just fine without them. patents are far more necessary for small entities.

stop the shilling!!
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MLS, 23 Jul 2008 @ 1:03pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Is everyone biased?
"No, let's be quite clear about this. You did not criticize them. You did not offer a counterpoint. You did not dispute the data. You called the economists in question: "nutty." And then, only after it was pointed out to you that these were well-regarded economists, and their writing was supported by multiple Nobel Prize winners did you even bother to take your first look at their research.
.
.
.
Then once again we have proven beyond a shadow of the doubt that you haven't read much of the research I've pointed to, since plenty of it IS from a collaboration between lawyers and economists."

Merely FYI, I have taken the time to study each and every article you have cited. I secured copies via the internet. Most were in full text. One, the Bessen and Meurer book, was a redacted version. However, I did not stop there. I also identified other articles published by each author and studied as well those that appeared by their titles fo be germane (at least to the extent they were available on the internet...many of which can be found via SSRN). Notably, I did not stop there. Many of the articles contained citations to other studies, law cases, etc. I studied each of these as well (again...to the extent they appeared on the internet).

As for lawyer collaboration, I submit that persons such as Professor Duffy are much better situated to provide accurate information concerning patent law and the patent process than persons such as Mr. Meurer. This is not to slight Mr. Meurer, but merely to note that there are numerous practicing lawyers and academics who have demonstrated through their publications and scholarship their obvious mastery of the law and ability to discuss the law in a dispassionate and unbiased manner.
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John Wilson, 23 Jul 2008 @ 2:03pm

Re: PatentlyO on Mike's ethical criticism
It does seem that you and MLS have a similar notion of ethics and morality which isn't rooted in much other than what you want them both to mean.

A small disclosure statement, one line at the end of the post, would have satisfied what is, in the end something of a breach of ethical journalistic and ACADEMIC standards.

All that said which is simply my way of saying both you and MLS are missing the point, as usual, is that it's you two who are making a mountain of of a mole hill here.

OK, he didn't disclose. Now it's disclosed.

Whether or not I agree with his article has nothing to do with it. Professor Duffy is coming from a position of bias in this particular issue and that was clear about half way through the piece. What was not clear was his active participation in a case critical to what he's commenting on.

I'm sorry if you don't like things to be repetitive, in your mind, but I, for one, understand his position better because of the disclosure.

I neither agree or disagree more with the content of his piece I simply understand the author a bit more now.

Actually, I think he's out to lunch in a couple of his observations and spot on in others, given his obvious, from the content, bias that software patents are a "good thing".

My bias is, quite frankly, that they are a "bad thing".

Nor do I care any more about what comments appear on PatentlyO than they are likely to care about mine here. Or should.

Good luck finding the moutain while slaving away at the mole hill.

ttfn

John
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MLS, 23 Jul 2008 @ 5:17pm

Re: Re: PatentlyO on Mike's ethical criticism
"What was not clear was his active participation in a case critical to what he's commenting on."

No.
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Mike (profile), 24 Jul 2008 @ 12:14am

Re: PatentlyO on Mike's ethical criticism
A couple comments from PatentlyO on this blog's criticism of Duffy's ethics:

Um, so you find a couple of other lawyers who agree, rather than do as we requested and point to a single journalistic source that says it's ok to ignore basic disclosure rules.

That's convincing.
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Mike (profile), 24 Jul 2008 @ 12:21am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Is everyone biased?

If that's the case, then why did he not advertise this post in places other than on PatentlyO? Why did he not seek to make his article more accessible to the non-legal public?

Perhaps because Patently-O is a source that isn't just for patent lawyers, but many journalists and those interested in intellectual property issues follow.

Duffy pointed to Google's PageRank patent (or license, rather) because Google is considered a great innovator, and the PageRank system is considered truly inventive and unique to Google.

Actually, it's not. Most of the truly unique work for PageRank was done prior to Page/Brin's work by Jon Kleinberg at MIT. Page/Brin simply updated his work in a rather marginal way.

The truly unique thing about Google was in their attitude towards treating users.

Duffy was not using Google's name for recognition purposes; he was using Google's patent as an example of something deserving patent protection.

Again, as pointed out, Page/Brin's implementation was hardly unique at the time.

Can you explain to me how writing an article that's in conformity with his co-authored amicus brief and his prior scholarship is somehow a conflict of interest?

His amicus brief was not just his own opinion. He was hired by a company to write the brief from their perspective. He is being paid to suggest a particular viewpoint. I have no doubt that he absolutely believes in this viewpoint, but the connection with the case is something that would be disclosed.

The familiarity with Duffy's work does not just extend to "some segment" of PatentlyO's readership; it applies to pretty much PatentlyO's entire readership. That's why it's unnecessary. If other blogs are going to link to Duffy's article and represent him as being an unaffiliated party to parties who don't read PatentlyO and aren't familiar with Duffy's work, then that is a problem with those blogs, not with Duffy.

Again, you go to the whole "reader beware" thing. And, yet, despite my asking multiple times, you have failed to point to a single source who holds such a policy that if readership is already aware of a conflict it no longer needs to be disclosed.
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Mike (profile), 24 Jul 2008 @ 12:22am

Re: stop shilling!!!
would you wake up, already. google doesn't need to enforce their patents. they can control their markets just fine without them. patents are far more necessary for small entities.

Wow, stv, in your rush to criticize me, you didn't even read the post. I said EXACTLY what you said. That Google doesn't need to enforce their patents.

So, does that mean that you're shilling now?
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Mike (profile), 24 Jul 2008 @ 12:24am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Is everyone biased?
Merely FYI, I have taken the time to study each and every article you have cited. I secured copies via the internet. Most were in full text. One, the Bessen and Meurer book, was a redacted version. However, I did not stop there. I also identified other articles published by each author and studied as well those that appeared by their titles fo be germane (at least to the extent they were available on the internet...many of which can be found via SSRN). Notably, I did not stop there. Many of the articles contained citations to other studies, law cases, etc. I studied each of these as well (again...to the extent they appeared on the internet).

Then why did you falsely claim no lawyers were involved in the research?

As for lawyer collaboration, I submit that persons such as Professor Duffy are much better situated to provide accurate information concerning patent law and the patent process than persons such as Mr. Meurer. This is not to slight Mr. Meurer, but merely to note that there are numerous practicing lawyers and academics who have demonstrated through their publications and scholarship their obvious mastery of the law and ability to discuss the law in a dispassionate and unbiased manner.

Ah, now I get it: by "unbiased" you actually mean "agrees with MLS."

No wonder I was confused.
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Mike (profile), 24 Jul 2008 @ 12:25am

Re: Re: Re: PatentlyO on Mike's ethical criticism
"What was not clear was his active participation in a case critical to what he's commenting on."

No.

No, that was not clear? Or no, he's not participating in a case critical to what he's commenting on?
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Mike (profile), 24 Jul 2008 @ 2:07am

By the way
For good measure, I will note that MLS and Willton keep harping on the minor point of the ethical questions, but neither have responded to the main point of the post: that Duffy's argument that this is somehow harmful to Google is untrue.

They claim that I'm making a mountain out of a molehill concerning disclosure, but that was not the main point of the post -- just something I noted on top of the main point. They were the ones who chose to turn a FACTUAL point (Duffy did not follow standard journalistic practices) into a false claim that I was somehow insulting Duffy.
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Willton, 24 Jul 2008 @ 6:25am

Re: By the way
For good measure, I will note that MLS and Willton keep harping on the minor point of the ethical questions, but neither have responded to the main point of the post: that Duffy's argument that this is somehow harmful to Google is untrue.

They claim that I'm making a mountain out of a molehill concerning disclosure, but that was not the main point of the post -- just something I noted on top of the main point. They were the ones who chose to turn a FACTUAL point (Duffy did not follow standard journalistic practices) into a false claim that I was somehow insulting Duffy.

First, that was not Duffy's point. Duffy's point was that "the PTO’s new interpretation of patentable subject matter provides a clear avenue to reject patent applications and to invalid issued patents on all [patents on innovative computer implemented processes] without regard to how meritorious or creative the innovation is." Duffy doesn't give a damn about how the result in Bilski would affect Google's profitability; he's concerned that the PTO is being lazy and is more concerned about limiting their workload than doing their job in rewarding inventors for their inventions.

Second, I have chosen to avoid commenting on your larger point because (1) it's not the subject of Duffy's article, and (2) I don't know enough about the subject to so comment.
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Willton, 24 Jul 2008 @ 6:40am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Is everyone biased?
Perhaps because Patently-O is a source that isn't just for patent lawyers, but many journalists and those interested in intellectual property issues follow.

Many journalists? Like who? You?

"Duffy pointed to Google's PageRank patent (or license, rather) because Google is considered a great innovator, and the PageRank system is considered truly inventive and unique to Google. Duffy was not using Google's name for recognition purposes; he was using Google's patent as an example of something deserving patent protection."

Actually, it's not. Most of the truly unique work for PageRank was done prior to Page/Brin's work by Jon Kleinberg at MIT. Page/Brin simply updated his work in a rather marginal way.

The truly unique thing about Google was in their attitude towards treating users.
...
Again, as pointed out, Page/Brin's implementation was hardly unique at the time.

And again, you missed my point. I am not commenting on whether PageRank is truly inventive or not. I'm pointing out why Duffy used the example of PageRank: he's holding it up as technology that is deserving of patent protection. Duffy is not using Google to garner attention.

His amicus brief was not just his own opinion. He was hired by a company to write the brief from their perspective. He is being paid to suggest a particular viewpoint. I have no doubt that he absolutely believes in this viewpoint, but the connection with the case is something that would be disclosed.

That doesn't show a conflict of interest. That shows that he has a viewpoint that's consistent with a brief he was asked to file in court on someone else's behalf. I see no conflict there.

By the way, do you even know what a conflict of interest is?

Again, you go to the whole "reader beware" thing. And, yet, despite my asking multiple times, you have failed to point to a single source who holds such a policy that if readership is already aware of a conflict it no longer needs to be disclosed.

That's because there's no conflict here. The only reason for disclosure is to explain who he is, and if the readership knows who he is, there's no need to disclose.
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Willton, 24 Jul 2008 @ 9:39am

Re: Re: PatentlyO on Mike's ethical criticism
Um, so you find a couple of other lawyers who agree, rather than do as we requested and point to a single journalistic source that says it's ok to ignore basic disclosure rules.

That's convincing.

Who's "we"?

And what are these "basic disclosure rules?" If I am to find said source, I have to know what these rules are and whether they apply to this situation.

If the rule is that one has to disclose where one would have a conflict of interest, then the rule does not apply, as Duffy is not conflicted.
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MLS, 24 Jul 2008 @ 9:59am

Re: By the way
Poor Larry Lessig and many, many other practicing lawyers and law academics who have blogs or publish articles in legal journals where they make no mention of their involvement in specific cases. I guess all of them are as ethically challenged as you attribute to John Duffy.

By the way, and perhaps you did mention it but I either never saw it or have simply forgotten, in each of your articles citing Boldrin and Levine's book "Against Intellectual Monopoly" did you happen to mention your participation? I presume you did because failure to do so would be improper for a journalist.
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MLS, 24 Jul 2008 @ 10:20am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Is everyone biased?
"Actually, it's not. Most of the truly unique work for PageRank was done prior to Page/Brin's work by Jon Kleinberg at MIT. Page/Brin simply updated his work in a rather marginal way."

Is this the same Kleinberg who was listed on the patent as the author of a reference that was considered during the prosecution phase of the patent?
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Mike (profile), 24 Jul 2008 @ 11:29am

Re: Re: By the way
Poor Larry Lessig and many, many other practicing lawyers and law academics who have blogs or publish articles in legal journals where they make no mention of their involvement in specific cases. I guess all of them are as ethically challenged as you attribute to John Duffy.

Really? Can you point me to a time where Larry Lessig published a piece arguing an issue related to a case he was involved in where he does not mention his involvement?

By the way, and perhaps you did mention it but I either never saw it or have simply forgotten, in each of your articles citing Boldrin and Levine's book "Against Intellectual Monopoly" did you happen to mention your participation? I presume you did because failure to do so would be improper for a journalist.

What participation? I have had no participation in Boldrin and Levine's book whatsoever.
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Mike (profile), 24 Jul 2008 @ 12:02pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Is everyone biased?
Many journalists? Like who? You?

Like all the journalists who wrote about the Patently-O piece. You think they just found it by accident?

That doesn't show a conflict of interest. That shows that he has a viewpoint that's consistent with a brief he was asked to file in court on someone else's behalf. I see no conflict there.

Well, then I'm glad the rest of the world doesn't live down to your journalistic standards.

If you have been paid to advocate a specific point in an attempt to persuade a court to rule in favor of the company paying you, then, yes, there is a conflict of interest.

A conflict of interest does not mean that you don't believe what you say. Do you think journalists wouldn't disclose that they hold a certain stock when they report on a company because their reporting is "consistent" with their investing philosophy?

Do you think journalists wouldn't disclose that their spouse works for a company they're covering because their positive reporting is "consistent with how they really feel?"

Consistency with how you really feel is not a reason to avoid disclosure.

By the way, do you even know what a conflict of interest is?

Yes, very much. Obviously, we disagree on the definition, but I have asked you (repeatedly) to point to a single journalistic disclosure policy that agrees with your position. You have not given one.

That's because there's no conflict here.

And on that, we disagree. If he is being paid to advocate to the court a particular position to influence the court -- then there is a conflict. He has a clear stake in the outcome.

The only reason for disclosure is to explain who he is, and if the readership knows who he is, there's no need to disclose.

Again, please point me to a single journalistic disclosure policy that says "well, if most of our readers know this conflict, there's no reason to disclose."

Most readers of Kara Swisher's columns know her conflict regarding Google, yet she is sure to mention it every time, because that's what Dow Jones requires.
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MLS, 24 Jul 2008 @ 12:25pm

Re: Re: Re: By the way
"What participation? I have had no participation in Boldrin and Levine's book whatsoever."

The credits page(s) of their 2007 copy contains:

"Many other people contributed thoughts, ideas, examples and discussion: ...Mike Masnick..."

Perhaps this was simply an oversight. Perhaps they were referring to another Mike Masnick. Who knows?

"Really? Can you point me to a time where Larry Lessig published a piece arguing an issue related to a case he was involved in where he does not mention his involvement?"

You are fond of advising people that articles upon which you rely to substantiate your economic viewpoints (note: I am in no way challenging any of your views) are easily found by searching the internet. For example, the articles/books by Bessen and Meurer, Bessen and Stiglitz (or was it Meurer?), Petra Moser, and Levine and Boldrin have all been referenced in your articles.

The point I made is easily substantiated in the same manner. As but one example, even a quick perusal of Lessig's blog details his views directly pertaining the Eldred v. Ashcroft. One blog article openly advocates what he terms The Eldred Act. Of course, his role and that of the EFF regarding the Eldred case is nowhere mentioned.

Guess what...it is irrelevant that he participated in the case and does not happen to mention it because anyone even remotely familiar with the case, the issues presented, and who is a student of copyright law does not need to be told the blatantly obvious.
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Willton, 24 Jul 2008 @ 1:17pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Is everyone biased?
Like all the journalists who wrote about the Patently-O piece. You think they just found it by accident?

And who are they? If they are so numerous, sure you can give me plenty of names.

Well, then I'm glad the rest of the world doesn't live down to your journalistic standards.

If you have been paid to advocate a specific point in an attempt to persuade a court to rule in favor of the company paying you, then, yes, there is a conflict of interest.

How? He's not saying or doing anything that undermines that client's interests. Their interests do not conflict.

A conflict of interest does not mean that you don't believe what you say. Do you think journalists wouldn't disclose that they hold a certain stock when they report on a company because their reporting is "consistent" with their investing philosophy?

That's completely different. A journalist who does that is undermining the interests of those he serves (either the public or his employer) to further his own (plus he may be violating some securities laws). Duffy is not undermining RDC's interests by posting this article and not disclosing his involvement.

Consistency with how you really feel is not a reason to avoid disclosure.

No, but consistency with the interests you are supposed to represent is a reason why disclosure is unnecessary.

Yes, very much. Obviously, we disagree on the definition, but I have asked you (repeatedly) to point to a single journalistic disclosure policy that agrees with your position. You have not given one.

How would I know that we disagree on the definition of what a conflict of interest is when you don't actually define it?

Tell me, does your definition of "conflict of interest" differ from the legal definition? If so, perhaps you don't really know what a conflict of interest is.

As for disclosure policies, I wouldn't even know where to look, even for one that's consistent with your view. But why should I honor your requests when you rarely honor mine?

And on that, we disagree. If he is being paid to advocate to the court a particular position to influence the court -- then there is a conflict. He has a clear stake in the outcome.

How? His "stake in the outcome" is consistent with his client's interests. His interests and his client's interests in this case do not conflict.

Again, please point me to a single journalistic disclosure policy that says "well, if most of our readers know this conflict, there's no reason to disclose."

I probably can't, but it doesn't matter because there is no conflict. In order to have a conflict of interest, you must first have two interests that conflict. I don't see Duffy having two conflicting interests. Do you?

Most readers of Kara Swisher's columns know her conflict regarding Google, yet she is sure to mention it every time, because that's what Dow Jones requires.

I imagine what Dow Jones requires has more to do with securities law than professional ethics, but that being said, if Swisher's professional interests as a writer conflict with her personal interest in Google, then I could see why disclosure is necessary. But what I don't see is how Duffy's personal interest in 35 U.S.C. 101 jurisprudence competes with his client's interest in the Bilski case.
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Mike (well, not really), 24 Jul 2008 @ 2:37pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Is everyone biased?
There IS a conflict because he is advocating a position that conflicts with my opinion that patent law does not promote progress as the Constitution requires. It also stifles innovation. If you do not believe me, well then believe all of the empirical evidence cited in the work of preeminent economists (some of whom have received the Nobel Prize). I mention their work from time to time because I simply cannot believe how many people have been deceived into thinking patents and copyrights are really incentives.

A long time ago we ended slavery and declared that people would no longer be property. The time has now come to do the same for ideas.

Disclaimer: I am not John Duffy and I had nothing to do with the Bilski case. Additionally, I am not Larry Lessig and I had nothing to do with the Eldred case.
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Mike (profile), 24 Jul 2008 @ 2:54pm

Re: Re: Re: Re: By the way
"Many other people contributed thoughts, ideas, examples and discussion: ...Mike Masnick..."

Perhaps this was simply an oversight. Perhaps they were referring to another Mike Masnick. Who knows?

That's nice. I had no idea. My "contributions" were merely from them reading Techdirt, or possibly seeing me speak, no more. I have met David Levine once, in Washington DC where I spoke to him for about 30 seconds and exchanged business cards after I saw him on a panel discussion and he saw me on a different panel discussion. I sent him an email saying that it was nice meeting him and that's the last contact I've ever had with him. That was April of 2006. I have never met/spoken with/emailed or otherwise directly communicated with Michele Boldrin.

If they want to credit me for the ideas I write about here, that's great. But that's quite different than getting paid to advocate a specific position.

Do you not see the difference?

The point I made is easily substantiated in the same manner. As but one example, even a quick perusal of Lessig's blog details his views directly pertaining the Eldred v. Ashcroft. One blog article openly advocates what he terms The Eldred Act. Of course, his role and that of the EFF regarding the Eldred case is nowhere mentioned.

http://www.lessig.org/info/disclosure/

Thanks for playing.
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Mike (profile), 24 Jul 2008 @ 3:03pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Is everyone biased?
There IS a conflict because he is advocating a position that conflicts with my opinion that patent law does not promote progress as the Constitution requires

Really, MLS? This is the level you've stooped to after having been proven to have been wrong?

If it's not clear, the post from "Mike (well, not really) is from MLS, who apparently has the temperament and debating skills of an 8 year old when it's been shown that he's been wrong.

Consider this conversation over. It's not worth responding to children.
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Willton, 24 Jul 2008 @ 4:14pm

Re: Re: Re: Re: Re: By the way
http://www.lessig.org/info/disclosure/

Thanks for playing.

Hmm, so Lessig doesn't place his disclaimer after every post, but that appears to be good enough for you because he has this disclaimer placed somewhere else on his blog. Yet it's been clearly disclosed in other areas of Patently-O that Duffy is involved with the Bilski case, and apparently Duffy's unethical? It appears that you think that what's good enough for Lessig is not good enough for Duffy. I smell a double-standard.

Thanks for playing.
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Mike (profile), 24 Jul 2008 @ 4:31pm

Re: Re: Re: Re: Re: Re: By the way
Hmm, so Lessig doesn't place his disclaimer after every post, but that appears to be good enough for you because he has this disclaimer placed somewhere else on his blog. Yet it's been clearly disclosed in other areas of Patently-O that Duffy is involved with the Bilski case, and apparently Duffy's unethical? It appears that you think that what's good enough for Lessig is not good enough for Duffy. I smell a double-standard.

The link to the disclaimer is on every page on the site (i.e., it IS included on those posts).

And, I won't even get into the difference between someone posting something to their own personal site, and posting it to someone else's publication.

Please, come back when you actually have an argument.
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Willton, 24 Jul 2008 @ 4:44pm

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Please, come back when you actually have an argument.

Oooh, tough guy. Well, tough guy, my argument has been for the past few posts that there's no conflict of interest, hence no need to disclose. You have yet to show me two interests that compete due to Duffy's post on PatentlyO without disclosure of his involvement in Bilski. A conflict of interest does not exist purely because you say so.
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Mike (profile), 24 Jul 2008 @ 4:52pm

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my argument has been for the past few posts that there's no conflict of interest, hence no need to disclose.

If you are paid to advocate position A, and then you write a column advocating position A and don't disclose that you have been paid specifically to advocate that position (even if it's a position you agree with), then there's a conflict of interest.

RDC didn't tell Duffy to submit an amici brief on whatever he wanted. They told him to defend RDC. He also has a clear economic interest in having his position prevail, as it will also lead to other companies hiring him to submit amici briefs as well.

He wasn't hired by the company as a neutral party. He was paid specifically to advocate a position. He is, in effect, a lobbyist. That sort of information requires disclosure in any publication I have ever seen.
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Willton, 24 Jul 2008 @ 6:25pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: By the way
If you are paid to advocate position A, and then you write a column advocating position A and don't disclose that you have been paid specifically to advocate that position (even if it's a position you agree with), then there's a conflict of interest.

Why? What interests are competing? How is this person conflicted? Who is suffering from this supposed conflict?

RDC didn't tell Duffy to submit an amici brief on whatever he wanted. They told him to defend RDC. He also has a clear economic interest in having his position prevail, as it will also lead to other companies hiring him to submit amici briefs as well.

Oh please. Professor Duffy will always be asked to file amici briefs to the CAFC on cases involving Section 101, regardless of how this case turns out. If Duffy was doing this for the money, he'd still be practicing law. The only interest he has, aside from RDC's, is seeing the law conform to his viewpoint. If anyone needed disclosure, it was RDC.

He wasn't hired by the company as a neutral party. He was paid specifically to advocate a position. He is, in effect, a lobbyist. That sort of information requires disclosure in any publication I have ever seen.

I should hope that he wasn't hired by a neutral party, because if he was then there would definitely be a conflict of interest. But if his personal views and his personal interests are in conformity with those of whom he represents, why would publishing his own views on the subject result in a conflict of interest? Again, what interests are competing?
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Mike (profile), 24 Jul 2008 @ 6:42pm

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Why? What interests are competing? How is this person conflicted? Who is suffering from this supposed conflict?

The interests of the public and the interests of RDC. RDC paid Duffy to advocate on their behalf. He no longer is an impartial observer of the situation. I honestly have no idea how you cannot see this as a conflict.

He has been paid to state a specific position, and then he publishes an article in a publication where it does not disclose that he has been paid to espouse a certain position.

I'm repeating myself.

You clearly do not see this as a conflict of interest. I find that rather troubling when it comes to your own ethical moral compass, but so be it. I don't see what good it is repeating ourselves here and going around in circles.

Suffice it to say, no reputable professional publication would ever publish such a piece by Duffy without disclosing that he was paid to advocate that position. Now, Patently-O may not be a professional publication, but it has gone down a notch in my book for not disclosing that Duffy has been paid to advocate this position in an ongoing case.
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Anonymous Coward, 24 Jul 2008 @ 10:22pm

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Apparently anytime an attorney makes a presentation, whether, for example, in writing on a legal blog or at a conference, that might find its way onto the internet (those pesky cell phones with video capability) the attorney is deemed to have a journalistic responsibility to fully disclose the nature of his/her involvement in a(ny) case pertaining to the presentation.

The variations on this theme of journalistic responsibility are almost infinite, so the ethical thing to do is make a full disclosure on every occassion a communication in any form takes place.

Why is this important? Since many members of the public may happen to hear about, and perhaps even read or view, the presentation, disclosure is needed so they will not be mislead into thinking that the presentation is not propoganda, no matter where that person may reside. Had Professor Duffy done this then clearly confusion would have been avoided in Bangladesh, the Marshall Islands, Madagascar, Peru, and various other countries throughout the world.

This responsibility is, however, subject to numerous exceptions. For example, if you are but one of numerous counsel listed on a brief to the Supreme Court, and an advocacy group of which you are an emeritous member is also listed on the brief, it is not necessary to disclose your relationship with that group to the court. This exception applies even if you are aware that the brief will immediately be disseminated worldwide.
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Mike (profile), 24 Jul 2008 @ 10:50pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: By the way
Apparently anytime an attorney makes a presentation, whether, for example, in writing on a legal blog or at a conference, that might find its way onto the internet (those pesky cell phones with video capability) the attorney is deemed to have a journalistic responsibility to fully disclose the nature of his/her involvement in a(ny) case pertaining to the presentation.

Another sarcastic post from MLS pretending not to be MLS.

Fortunately, I'm sure most of our readers understand the difference between publishing an article and other forms of communication, even if MLS is apparently unable to understand.
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Now don't accuse me of being MLS too..., 25 Jul 2008 @ 4:34pm

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My take on the topic is that a conflict of interest only exists if people influenced by Prof. Duffy's blog are in a position to change patent law and are unaware that he was once paid to support that view. I don't see what other interests are present in this scenario, but I may be missing something.

BTW, the troll in me must commend this:
First rule when you have no argument: insult your opponent.

Actually, that's the first rule of frustration. Neater Trick: frustrate your opponents by making the same arguments in a circular fashion, and when they finally insult you, invoke the "First rule of having no argument" to "invalidate" their arguments. Heh heh, how many times have I done that for personal amusement! But, then, I'm a recovering trollaholic.

Interestingly enough:
If it's not clear, the post from "Mike (well, not really) is from MLS, who apparently has the temperament and debating skills of an 8 year old when it's been shown that he's been wrong

"8 year old"? Looks like somebody's been set up for Neater Trick (TM) part 2....
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