Patent Lawyer Insists Open Source Stifles Innovation
from the gene,-please,-you're-making-us-laugh dept
I have to admit that I'm finally beginning to believe that patent attorney Gene Quinn is really a joke made up by someone trying to embarrass patent attorneys. He's an elaborate satire of the most ridiculous possible position a patent attorney could take, to highlight via reductio ad absurdum the sheer farcical nature of the positions held by many patent attorneys. He's the same guy who said anyone who was against software patents was against innovation -- even if the evidence showed that getting rid of software patents could lead to greater innovation. He also challenged me to a debate, saying it was impossible to make a statement that patents hindered innovation, and when I pointed out the detailed evidence supporting that position, he insisted he "didn't need" evidence, because of what he could see with his own eyes. I mean, this is not someone that you can take seriously. So I'm now coming to the conclusion that he's really just a made up joke by anti-patent folks to show where the ridiculous positions taken by some patent attorneys leads to.For example, take the latest "Gene Quinn" post, where he insists that open source software stalls innovation and that patents advance it. First, as you read through the blog post, you realize that Quinn can't actually make that argument. So he doesn't. Instead, he makes a totally different argument about whether or not software developers should spend their time doing searches on prior art. Now, we've had this discussion plenty of times in the past. Due to the way patent law is structured, if a patent holder can show "willful infringement," then they can get treble damages. For this reason many patent attorneys (not just those advising open source developers) recommend not looking at other patents, because some lawsuits involved patent holders claiming there was willful infringement if you had seen their patent. Thankfully, the courts have been raising the standard for proving willful infringement, but still this is a common recommendation.
Except, in Quinn's world, this is something that is just done with open source developers, and then you have to follow a maze of twisty little passages of the mind to watch as Quinn tries to contort this fact (which, again, has nothing to do with open source) into proof that open source is bad for innovation. The key nugget is here:
Stepping back for a moment and looking at the "don't look" advice from a different perspective, for those who want to do original work, I really don't know how you can do anything original without knowing what else is out there. If the goal is an artistic or creative one, as is the case with academia for example, the only way to know where to try and make a mark is to endeavor to know the industry and figure out what others have done, and then seek to identify what hasn't been done. This is one enormously positive aspect of the patent system. While clearly imperfect, when people and companies want to innovate and want to build a business and attract investors from zero to start-up they seek out the spaces where there are opportunities.Except, of course, almost nothing in this paragraph is accurate. We've already pointed out that the "don't look" advice is spread around widely and has nothing, specifically, to do with open source. Second, developers aren't looking to "do original work." They're looking to do useful work. Necessity is the mother of invention and all that. Innovation doesn't come from looking for something that "hasn't been done." Usually, it's in response to a need that you are seeing in the market place, and when you see that need, it doesn't matter if others are doing something already. The fact that you see a need that hasn't been fulfilled means that there's an opportunity.
In some ways, Quinn's mistake here is simply a restatement of the mistake many patent attorneys make in confusing idea and execution. He assumes that for innovation to occur you need to have an original idea, rather than just a better way of solving a market need. And, the idea that you have to do something "original" to attract investor attention suggests that Quinn doesn't spend much time in the venture capital world. It's pretty well known out here in Silicon Valley that if you come to investors with something truly original, you'll almost never get an investment. It's just too difficult. They can't fit that into the model they're working with. To get an investment you need one of two things -- neither of which is "finding some original space." No, you need a story about how you're doing something the VCs already understand, but better (i.e., the opposite of what Quinn suggests) or you've got a great track record of executing. That's because most good (successful) VCs recognize the difference between ideas and execution. And they'll bet on people who can execute over people with ideas every single time.
There's plenty more that's ridiculous in Quinn's post -- which is why I'm pretty sure that Quinn's blog is pure satire that had me fooled for many years, but I'll just respond to one more point, because it's so amusing:
I have a real philosophical problem with those who want to copy, whether it be intentionally or without knowing. We ought to want to find the open spaces and fill them. That is what Thomas Edison did, and many thousands of others throughout our history.As anyone who's actually studied Thomas Edison knows quite well, pretty much all Edison did was copy others. Nearly all of his great "inventions" were actually invented by others first. Edison, on the other hand, was great at taking the inventions of others and innovating. That meant making minor tweaks to make the offerings more marketable, marketing the hell out of them... and, oh yes, using the patent system to try to wipe out any of the competition (even if they had much, much, much better products).
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Filed Under: gene quinn, innovation, open source, patents, software, software patents
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open source is pretty much millions of interior decorators. very few open source people are actually building buildings, most of them are just painting and moving the furniture.
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But now Apple is dominating and they seem to be even more controlling than Microsoft. So what lesson can we learn from all of this?
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They don't have market share in the OS area.
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Is Apple the New Microsoft?
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For the store and others things, there are better options, Europe and Asia don't use iTunes that much.
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Apple's Market Share is at MOST 10% of the PC market. By what standard is that dominating Microsoft?
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By what standard is that dominating Microsoft? You can not count iTunes, Microsoft does not have a comparable product the MSN Music store closed November 14th, 2006. If you are speaking of iPod market share vs Zune the yes Apple has the trump card.
In reality however the overall race is neck and neck, as of June 4 2010, Apple's market cap was $240 billion, and Microsoft was at $235 billion. A difference of only 2%, in other words FAR to close to call.
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No what made them big was a little deal they did with IBM 30 years ago, for the next 6-7 years they rode IBM's coat tails. After that they had enough money to wear down every competitor.
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While MS certainly didn't invent many concepts, they certainly refined, packaged, and marketed very well to gain the dominance in the OS market (in other words they innovated).
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Ummm, yes.
The trouble is that there is a right way and a wrong way of doing that when you have a monopoly position, and Microsoft has a habit of choosing the wrong way. It's not against the law to be a monopoly, but it is against the law to use your monopoly position to beat up and crush competition.
But even before they were a monopoly, they had a strong tendency toward engaging in actions that were often immoral and sometimes illegal (look at the saga of DOS).
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Exactly wrong.
Most developers are engineers, so the building is going to be pretty robust. The problem is that designers/UI developers/etc. are undervalued, so you get a megaskyscraper with an interior that only makes sense to an engineer.
That's just not appealing to most people, despite their insistence that brushing your teeth in the toilet tank is super-green.
End result? Most people eschew open-source 'solutions.'
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Actually it's exactly the opposite.
Software developers -->hate
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as I was saying:
Software developers Hate doing the menial tasks of drawing GUIs, documentation and graphics.
Just look at most open-source games: excellent pieces of coding, but have dismal graphics.
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I have completely removed M$ Vista from my laptop (I would have bought it without M$ crap if I could have) because I never use it. I can do everything I can possible need to do with Debian Squeeze and without "blue screens of death" or any of that phone home crap and DRM that M$ has. It seems to me that this "glacier" has surpassed Microsoft.
"but have failed to truly fix the guts"
With almost daily updates to my OS and ALL of my installed programs anything that may need to fixed gets fixed a heck of a lot sooner than waiting for a half of a year for a "Service Pack" that only fixes the OS. Once again this "glacier" has surpassed Microsoft in my opinion.
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As for web servers, I use NGINX instead of Apache. Apache takes far too much RAM.
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Currently WP Super Cache as my system doesn't have enough spare RAM to run memcache.
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Apparently it is good enough for the patent attorney in the featured article. A choice quote from him in the comments: "We have gone over this many time here. Why anyone pays for something that is free and works is beyond me. The fact that I use open source has nothing to do with the fact that open source thwarts innovation. Everything I said above is 100% correct, and those who oppose it are fooling themselves."
Contrast this with his article, which states: "But copying does not advance technology and does not foster innovation. Copying is antithetical to the patent system and that is what is wrong with so much of the open source community."
It would seem that while he believes copying does not advance technology and is 'wrong' when done by the open source community, he has no problem copying THEM when it suites him. The guy is a grade A hypocritical pillock.
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Glaciers however are pretty much unstoppable.
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Which web server is this? Apache has had a stable caching function since 2.2. Apart from that, why not use Squid Cache? You don't need the web server to do simple page caching. Hell, you could even use Squid Cache (open source) with IIS or whatever web server you care to use.
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I understand your point that he made a lot of changes to it, but that just reinforces Mike's point on invention vs innovation. He didn't invent the light bulb. It already existed. What he did do was make it practical and useful for everyone.
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Using the logic espoused here, it seems somewhat akin to saying that the Wright brothers only made an incremental improvement to something that already existed...such as the wings of a bird. Or that the Manhattan Project was little more than taking preexisting materials and making them work more forcefully.
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I see. So now we're awarding patents based on "sweat of the brow" effort?
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"Sweat of the brow", as you call it, is, of course, irrelevant.
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Re: Edison Innovative?
As you well know, patents under current (and former) law must meet the threshold test of novelty, utility and non-obviousness. Clearly, Edison met all of these.
Clearly, a court disagreed, ruling against him and in favour of Swan.
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I see.
Is this the limbo bar that's easy to go over but very difficult to stay under?
Like if I am ordinarily skilled and I see the patent and go, "oh, that's obvious, I've even cooked up a few rounds of that here," then the "inventor" managed to stay under the bar, but if I am very skilled, then perhaps the inventor did make it over the bar after all?
It's a comedy to award a 20 year monopoly to the first person that finds and writes about something that is "not obvious". If you work in an industry with high capital costs and few competitors, then the non-obvious patents don't hand-cuff too many smart folks, but in software where there is a bunch of competition, these non-obvious patents hand-cuff a very large number of skilled people working on software. Oh, and never mind that many non-obvious things become obvious days, weeks, or months after you first think about the problem.
Also, we have the problem that the smartest of inventors don't file for many patents they otherwise could because they find many of those patents obvious. So the "dumb" and antisocial folks get the monopolies. Ouch!
http://www.linuxtoday.com/developer/2010062000135OPLLDV
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Using the logic espoused here, it seems somewhat akin to saying that the Wright brothers only made an incremental improvement to something that already existed...such as the wings of a bird.
Neither Edison nor the Wright brothers invented the version of their inventions that eventually went into common use. By 1910 Edison's bulbs and the Wright's aircraft control system were history.
If you want the inventors of the filament light bulb then they are the Hungarian Sándor Just and the Croatian Franjo Hanaman.
Edison invented neither the first light bulb nor the one that eventually went into common use. His contribution was a minor one, amplified by his real talent: self publicity.
The aeroplane (as we know it today) was invented by Bleriot. The Wrights were a relatively unimportant step in the process- although they managed to clobber US aviation for a decade with their patent war.
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Based on the "invented by others" link in the article, it sounds like this is exactly what Edison did. Do you have a link to one of these "various journals" that contradicts this point? (BTW, I'm no Edison expert, so I honestly don't know the answer to this, but if you're going to contradict information in a provided link, you should probably provide a link of your own.)
then crafted several thousand experiments (most report somewhere in the order of about 10,000) until he finally hit on the right combination of elements for a workable/reliable bulb.
Ah, but this is exactly the point Mike was making, that Edison didn't invent the lightbuld, but that he instead copied an existing idea and made it "workable/reliable". In trying to contradict him, you've actually provided a great example of Mike's idea of the distinction between invention and innovation.
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2. There was nothing to "innovate", as TD uses the term, until there was something that had been "invented", a term that encompasses "improvements".
For sure this is not what you term a "great example".
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Thomas Edison
Funny thing about Edison...
When he stopped "inventing" he began to charge people for using his patents. It's a reason that people began to move west, so that way they could invent and innovate without being charged for it.
What's ironic is that the movie industry, that felt small and persecuted from Edison, would eventually go on to be the big bully to the new technologies of today.
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Re: Thomas Edison
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http://mosspuppet.com/2010/03/11/steve-jobs-is-a-modern-day-thomas-edison/
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for innovation to occur you need to have an original idea,
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Re: for innovation to occur you need to have an original idea,
Ha! I like this. Very "insighful". The modern version of this would be "Build a better mousetrap and you'll get sued by the patent holder of the original mousetrap."
(So, you can mark a post as "insightful" but no one else can see this or even how many times it's been marked?"
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But here is the thing. If someone else can independently invent something without patents then patents weren't needed for that thing to get invented. Instead, patents only get in the way of its use and the widespread knowledge of such an idea. This only hinders the knowledge about it because no one is interested in researching or knowing about something they are not allowed to use or benefit from. Why should I research what has been done if I am not allowed to use it? What good does it do me to merely know about it when its use and sale of it means I must pay monopoly prices to someone else?
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This link might be relevant: The Most Important Software Innovations.
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No joke, just the facts
No joke whatsoever, just the facts, which you don't like. You say that my mistake is that I assume that "for innovation to occur you need to have an original idea..." Of course I do, and of course I am correct. Innovation requires originality. There is no innovation in reinventing or rediscovering. The fact that you don't understand that is curious.
Of course open source limits innovation. If everyone were just reinventing the wheel we would only have a reinvented wheel, not any advance. So if there are those out there that don't look for fear of realizing it has already been done before all they are doing is pretending to innovate. Intellectually it is a very easy proposition to grasp. Not sure why you have such difficulty with such an easy concept.
Keep up the good work. I enjoy reading your fiction.
Cheers.
-Gene
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Re: No joke, just the facts
This is what I love about the satire of Gene Quinn. Note that he doesn't respond to any of the key points in the post (such as that the central pillar of his argument has nothing to do with open source) and then comes back with a comment that is once again deeply misleading and has nothing to do with what we actually said.
In this "Gene World" (again, which absolutely must be satire) you only have two options: "come up with something totally new" or "reinvent/rediscover." That this very post explains how that's not true is ignored.
Of course open source limits innovation. If everyone were just reinventing the wheel we would only have a reinvented wheel, not any advance.
Again, you falsely assume that the only option outside of coming up with something totally new is to reinvent. You don't seem to recognize that incremental improvements happen in many different ways, mostly focused on seeing what needs are not met by consumers -- not by looking at what producers have done.
Intellectually it is a very easy proposition to grasp. Not sure why you have such difficulty with such an easy concept.
I love it. You amuse me to no end. Now that I understand that you are pure satire, I have to say, Bravo, sir. Brilliant.
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Re: Re: No joke, just the facts
If it's satire then someone has way too much time on their hands (having read the comments he makes on his article). Maybe TAM has a twin?
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Re: No joke, just the facts
Take the T-Rex vehicle for example.
http://www.carfind.ca/ArtImages/91050/T-Rex-1400R-i005.jpg
Certainly cars have been around for quite a while, as have motorcycles (both of which build upon the discovery of the wheel BTW), yet this vehicle is regarded as innovative.
Limiting access to concepts and ideas only serves to limit innovation built upon a foundation of those concepts and ideas.
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Re: No joke, just the facts
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Re: No joke, just the facts
You're both right. I believe you're using the dictionary definition of "innovation", which just requires a "new idea", whereas Mike (and others) make a distinction between invention (a completely new idea) and innovation ("ideas applied successfully in practice").
Of course open source limits innovation. If everyone were just reinventing the wheel we would only have a reinvented wheel, not any advance.
Wait, what does open source have to do with reinventing? You imply that the fact that open source limits innovation is self evident, yet your supporting analogy has nothing whatsoever to do with open source, at least not as far as I can tell.
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Re: No joke, just the facts
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Re: No joke, just the facts
why do you hate me?
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Re: No joke, just the facts
Gene Quinn claimed:
So, was Edison innovative, or not?
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Re: No joke, just the facts
I'll roll with the wheel metaphor. Let's say I have a method for a wheel, but it's not a circle because I lack the relevant maths knowledge (which is what software boils down to). Someone comes along who knows how to deal with circles, but doesn't know how to create a wheel method. In a closed source system they would have to literally reinvent the wheel. In an open source system they would be able to combine their knowledge of circles to my knowledge of wheels to come up with a potential innovation: a circular wheel.
Your argument seems to be based on the premise that there is value in reinvention. As another poster has pointed out, doing something repeatedly in hope of stumbling across something new may have worked for Edison, but is not regarded by everyone to be a good way of working. One of the key tenets of software development, closed or open source, is code reuse. Whether through software libraries or object orientated programming, most developers design software around code reuse. This isn't a concept unique to open source, but common to all software development.
If anything, open source melds the best of both worlds in reusing code but still allowing improvements by contribution. In the closed software model you may have a better wheel function but end up using the one I wrote because you have no way to change it. In the open source model, not only can you use your better wheel, but so can I.
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LOL
LOL, ROTFLMAO, LOL, god my belly hurts.
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vertical vs horizontal
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open source
Amen, punks
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Re: open source
Where do you get "other people" from?
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Re: open source
Interesting that bad code accounts for the major market share.
http://news.netcraft.com/archives/2009/09/23/september_2009_web_server_survey.html
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Re: open source
angry dude regurgitated:
Guess what, this whole Internet thing you’re using right now is built on Open Source, from the domain name servers that tell your machine what IP address corresponds to a name like “techdirt.com”, right through to most of the world’s Web servers and all the software that runs on them.
How do you feel about using it now? Want to go back to your proprietary CompuServe and (pre-Internet) AOL services, and pay USD25 an hour for access?
Do you feel lucky, punk?
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Re: Re: open source
The creators of TCP/IP protocol didn't know anything about "open source" concept cause it did not exist
Neither the creators of Netscape Navigator or MShit IExplorer cared much about "open source"
The UNIX system was purely commercial development
The early BIND development was supported by DARPA contract
Where is "open source" in this picture, punky ?
Grow up, kiddo
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Re: Re: Re: open source
Wrong.
'Neither the creators of Netscape Navigator or MShit IExplorer cared much about "open source"'
Netscape was built by ex Mosaic developers, Mosaic was proprietary but pretty permissive on access to source code. Mozilla was founded by Netscape after it publicly announced its commitment to open source.
"The UNIX system was purely commercial development"
"The early BIND development was supported by DARPA contract"
Even ignoring your ignorance, none of your points address Lawrence's assertions that open source is widely relied upon, including facilitating this conversation.
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Recipe for disaster
If everyone was to do that then all progress would cease forthwith because there is so much prior art that it would take several lifetimes to check it all.
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That Jawad on Web article about Edison is bullshit
Allow me to demonstrate:
"Thomas Edison did not invent the record player. Rather, he invented the phonograph, which was intended for making recordings."
Yes the phonograph was intended for making recordings. But so were all of the other early recorders: the Tainter Graphophone and the Grammophone.
"The phonograph was first marketed as a dictation machine and only later modified for use in musical devices."
False. It was modified continually throughout it's lifespan, but there was no major difference between the early models used for dictation and the slightly different models used for music playback.
"The ability to record sounds had been invented much before Edison’s phonograph."
Egregiously false. There were no known methods of recording audible sound before Edison. The closest thing was the Phonoautograph, which made a visual recording of sound.
"The gramophone, invented by Emile Berliner, was actually the first record player as we know it."
The Gramophone did indeed look more like a later record player than the Phonograph. But it came a full ten years after the Phonograph.
All of which is irrelevant to the fact that Edison invented the first known method of recording audible sound. Which was not an innovation, but an honest to goodness real live invention the changed the world.
I realize that you have an idiological antipathy to the idea of an invention that really was earth shatteringly important, but you shouldn't let this antipathy lead you into believing junk history like this.
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Re: That Jawad on Web article about Edison is bullshit
Egregiously false. There were no known methods of recording audible sound before Edison. The closest thing was the Phonoautograph, which made a visual recording of sound.
Hate to be a pedant but the ability to record sound is not the same thing as the ability to record and playback. The phonoautograph could certainly record sound...
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Re: Re: That Jawad on Web article about Edison is bullshit
I don't mind pedantry, actually.
But recording a picture of a sound and recording a sound are really quite distinct activities. The potential market for the former is vanishingly small by comparison.
And again, Edison was absolutely the first to record audible sound. I know he was a salesman and a quack and a charlatane, but he did have one great invention that was truly his own, and the phonograph was it.
I realize that this fact is inconvenient to the 'innovation is more important than invention' point of view, but this doesn't make it any less a fact.
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Re: Re: Re: That Jawad on Web article about Edison is bullshit
Agreed - but Edison would have been aware of these earlier machines and have been inspired by them.
Personally I don't buy the "innovation is more important than invention" line anyway. Firstly I think it is a misuse of language - those two words don't really have those different meanings. Secondly I don't think there is a clear cut distinction between the two concepts. In reality there are big conceptual ideas and little problem solving ideas and every point on the spectrum in between. Inventions and innovations are just two different words for new ideas.
The real point is that to be successful in the real world you usually need a lot more than just the initial big idea. You also need a lot of little ideas to solve problems.
Edison was fairly bad at getting big ideas - mostly they were copied (I'll give you the phonograph).
He was brilliant at marketing and self publicity - which is why he has gone down in history as a great inventor.
He was pretty good at finding smaller ideas to solve the implementation problems - although his way of doing it was inefficient - and he often had to rely on others (eg Swan, Tesla) to provide important steps in the process.
He did tend to lose interest once his invention had reached a certain level - which is why he didn't come up with the tungsten filament or the record player - the big time versions of his inventions.
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Re: Re: Re: That Jawad on Web article about Edison is bullshit
Ripping an mp3? I find it difficult to argue that ripping an mp3 is any different than recording a "picture" of a sound. It is arguably more accurate than other methods, but any recording is some kind of a picture of sounds. You are assuming that the picture of sounds is then only to be viewed visually - you have focused on a small portion of a potential market (I assume accidentally).
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Edison
No - Edison's great talent was self publicity and his enduring achievement was to persuade history that he invented things - when his version was never the first and only rarely the eventual version.
The carbon filament bulb and the cylinder phonograph were dead within a few years and no one uses DC power distribution.
He was also a movie pirate - this from Wikipedia:
"In 1902, agents of Thomas Edison bribed a theater owner in London for a copy of A Trip to the Moon by Georges Méliès. Edison then made hundreds of copies and showed them in New York City. Méliès received no compensation. He was counting on taking the film to the US and recapture its huge cost by showing it throughout the country when he realized it had already been shown there by Edison. This effectively bankrupted Méliès.[50"
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Re:
No he's never tried to do anything practically useful at all.
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Edward De Bono Quote
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So there are no music/movie "pirates" right? Just researchers.
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Posted on P Quinn's blog
Let's look at a few underlying problems before diving into this example about the 25 claims:
For starters, it's easiest to come up with the broadest claims where the fewest details need to be known (and can even be guessed at with little recognition for difficult subtle issues), yet these are the claims that give you the widest scope of coverage! This means the people with less sophistication have been empowered to place barriers and hand-cuffs on the smartest of inventors, and they can do this early in the evolution of the art and science. [This has nothing to do with software, except software has such low capital requirements to manufacture, retool, distribute, etc, that we find many thousands of developers participating rather than tens (if that many). Thus, the opportunity costs of monopolies (and "taxes") are that much greater for areas like software, meaning the liabilities of these patents are that much greater.]
To encourage the less capable to file the patents fastest and so get them, the patent system awards a staggering **20 years** of potential monopoly and/or discriminate taxing/injunction rights. There is also a fairly low "innovation" bar to be met (discussed further in a moment). This means you have potentially many less than brilliant (or less than highly skilled or even modestly skilled) people all able and trying very hard to grab the broad patents. It's also true that some of the more anti-competitive will have a much greater tendency to participate over those that tend to value collaboration or who dislike hand-cuffing their peers.
To bias against the vast majority of inventors (and greatly in favor of large corporations with many contracted employees and years in business), the patent system makes it money-wise expensive to come up with a good patent or even with any patent. Certainly, the patent is not free or automatic as is copyright. This means that if you create a large work ahead of others (or alongside others), you might have many thousands of details and larger ideas that could be patentable, but most people will not know which of these if any to try and patent. Most people don't have the money, naturally, even if the ideas are already implicit in their carefully crafted and finished work. Patents have always been a game of money played by those with high ambitions (eg, needing millions or billions in investment). It is not a game designed to deal with ordinary individuals and small businesses; hence, we see why software patents are such a failure and biased against most developers/engineers/inventors/innovators. The patent holder can block you from the patented ideas, and can use all of your unpatented ideas freely.
With so many ideas in every single body of code (think of fiction.. I'll explain better in a moment), the patent system is making developers walking liabilities. In some capital intensive industries, for example, companies can protect themselves because there might only be a few other likely competitors. With software, where the bar is extremely low, we find that the many ideas will be patented by someone at some point in time, and the patents will land in the hands of many distinct groups -- this is a mathematical probability/statistics reality.
The many ideas that don't get patented right away and perhaps not until they were fully developed by several independent groups across many years and products, can still get patented and frequently don't get challenged sufficiently in courts because of the very high costs to do so and difficulty in recovering evidence. [See the Red Hat virtual desktops suit they just won with 3 cases of provable prior art. Red Hat had help from the wider open source community that was helping them find prior art, and still they spent 3 million dollars and 3 years I think it was.] This means that the patents (and associated 20 years of control) aren't going to those that first or best know the inventions. That's an awful lot of power to put into the wrong hands (assuming any single person's hands could even be deemed worthy to block off many thousands of others).
It also means that many people are able to copy ideas already expressed by several groups, get a patent, and then sue many years later when it is very difficult to track down the prior art.
Writing software is like writing fiction: you are limited in concepts you can create only by your imagination and "writing" skills because you are creating virtual worlds. Mother nature never interferes or hides deep secrets that impede or prohibit general software development (thanks to digitalization and to the well-defined mathematical, idealized underpinnings). You build based on models with rules you create.
This also means ideas are particularly cheap for software (and for fiction), while more detailed and precise implementation is the much more difficult part and the part more closely dependent on your skills and understanding.
Obviously, models matter, but that is only the beginning, and frequently the core of the models come from distinct disciplines where patents are not awarded (and this is a main reason why those models got developed). Some software is simply a representation of mathematical realities, for example -- the sort of stuff many mathematicians have been developing for years and years, thankfully, without a patent/monopoly framework.
What a low bar:
The bar to getting a patent is essentially that you find something non-obvious to the ordinary practitioner. This is a ridiculously low bar.
[Note that a very high bar will still get in the way of the most advanced implementations of the most advanced models. There is a reason mathematicians don't patent their research (but, unfortunately, others take these and patent them, eg, as software implementations).]
First, we'll find that many people will be able to come up with the inventions read by patent claims without much help at all beyond the same things the patent authors had accessible (which is a lot; note that inventions are hardly out of their time because society's inventors and inventions evolve alongside each other). How do we know this? Just look at the bar: "non-obvious to an ordinary practitioner"! In fact, most things that would pass this bar could be developed "independently" by almost **any** practitioner at some point before 20 years. What might not be obvious right away, might eventually become obvious (without the help of the patent or patent author). That is what non-obvious means, that it might be well within your means but simply not immediately clear and perhaps not until you've thought about the problem for a while longer.
I don't know how patent law stayed with such a low bar matched up with such a long monopoly period for so many years, but perhaps the clue is in that when there are significant hurdles already (eg, like very high costs and/or mother nature fighting you), the patent is the least of your worries, and most won't apply or can't/won't afford to experiment with costly laboratories. On the other hand, the fact anyone can participate writing software (doing math, fiction, music, business, etc) and contributing ideas and suggestions brings the "obvious" folly of this system to the fore.
Einstein needed social context (key experiments and mathematics done by contemporaries, and perhaps many other clues also coming from peers) in order to make his great inventions. He didn't need to be motivated by patents (and did know about them very well), and in fact would not have been able to come up with his inventions of others had been patenting along the way. Of course, science and mathematics is (or has been) out of the scope of patenting. It's clear monopolies on ideas stifle greatly if enforced. And not even a real Einstein can come up but with a few of the key ideas ahead of everyone else.
Finally, before addressing the quote at the top specifically, let's tie together a few more points. Most people already are priced out of the patent game. Even if they wanted to play a little, in the software and fiction worlds, they are overwhelmed with ideas and approaches. They could spend all their time patenting and never get anything else done or cover all their ideas. AND many others would surely beat them to many cases, even if the person was very smart (the world is full of smart people). Also note that knowing how to write software (or at least well) isn't even a requirement for getting broad "software" patents that might read into many future inventions. You mostly have to be quick and be willing to spend money. You can even get help with the technical details after you have started writing the patent application. Software patents are a "land" grab open to almost anyone and which simultaneously turns many infinite resources into scarcities. Well, the main point to be made in this closing paragraph is actually that, the more you know, the more things are obvious to you and the less you might think is actually patentable and try to patent (eg, if you decide to dedicated a great bunch of hours and dollars to play the game rather than develop the "obvious" ideas into something of utility); however, if the law grants patents to what is non-obvious to the ordinary practitioner, then it follows that it will grant patents to what is obvious or even ridiculously obvious to some of the smarter folks.. or to the not-so-obvious to those that are not as skilled but worked on a particular problem for a few months (perhaps while many of the more capable peers were busy with more sophisticated matters and other problems).
Alright, onto the 25 claims brief discussion:
Patent claims are structured so that many claims have many fewer than 25 properties/features. Many patents exhibit a step-wise approach with respect to required features described by the claims, where a new claim repeats the broader invention claimed ahead of it and then adds a single (or two) new feature(s). And every now and then, several branches are covered.
This means that an implementer avoiding the 26-feature claim doesn't gain much if s/he then bumps into 10 other broader claims that preceded it.
Finally, you can't make a better wheel than a round one (meaning trying to patent around "roundness"). You can't make 2+2 equal anything but 4. You also can't also cover a distance with a shorter segment than a straight line.
In other words, we can't patent around things many times unless we accept inferior (longer, etc) solutions. This is the case, even if we can prove that the patented solution is optimal as shown by the mathematics or logic (and quite possibly when the patent author wasn't able to do such a proof).
To conclude:
Patents are stifling, and this shows up very clearly when we try to apply them to creations that many are capable (and sometimes very willing) to create. This tends to be the case for works of the mind only, where the final product is information (eg, "processes" and "methods" accessible to most people). And the extreme problem cases are magnified thanks to the Internet and other modern inventions. Also, open source has shown that a monopoly is not only not necessary as a motivator but is undesired by many software developers because of its stifling, biased, and other unfair aspects of the system (and of monopolies in general).
P. Quinn, there are still many areas (traditional heavy industries) where patents will not impede as many people (although the Internet and computing are bringing solutions of all sorts to the hands of many collaborators). As an alternative to abolishing all software patents, changing the law to disallow infringement claims against individuals, non profits, and small and medium businesses and/or to lower the duration to a couple of years, would go far in removing the arguments against software patents and opposition to them. With respect to patent duration: The modern world works too fast. The world of the late 1700s was much much slower and less developed in many ways.
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Posted also on P Quinn's blog
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No patent infringement claim on the use of software on a programmable device might be able to avoid First Amendment violations (assuming it gets past the "abstract" test) if the software was developed relatively independently of all other work (esp, of claim descriptions which are incredibly broad).
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Copy others to then block those doing same or even independents
Let's look at copyright law. A derivative work is defined by the courts. It's a subjective determination. A derivative work will share at least some if not many features and/or details with the "primary" work.
What might appear like a derivative work on the surface might have been be arrived at naturally. Eg, to look at a (non-copyrightable) math scenario that does present itself frequently at many levels, two people might come to the same fact-supported conclusion and structure their proofs very similarly. One proof need not be a derivative of the other even if they both look very similar. After all the same sorts of inspirations that led the first author to produce a work were also in the environment of the second author (to varying degrees this is always true).
So in copyright law, the person creates a work and this implies a set of other works that likely would infringe (as "derivative works"). The courts define this scope of infringement. A derivative work will share some or many features with the original. The court I think allows "derivative works" to exist without infringement if they were created relatively independently of the original work.
For patents, the story is different. The patent author may not develop a precise work ever, but s/he then does define the scope of infringement around the perhaps hypothetical work.
So while a judge or jury in a copyright case might say that because this product has all of these similarities to this other one, then perhaps the latter is a derivative work, with patents, the patent author, not the courts, define the scope. In particular, the patent author has an incentive to be as broad as possible and much broader than would be called a derivative work were copyright law to be applied to an actual product created (or imagined) by the author.
As an example, I might write a 20,000 line computer program. A court would define if some other work would be a derivative work, yet I can attempt to capture all the broad concepts of the product generated by those 20,000 lines. I can generally cover much more ground through the patent approach than would happen through the derivative works.
So what is the point of this discussion? That patent law let's people define markets they want to own or tax (subject mostly only to others not having described those markets already.. oh, and subject as well to the fairly low hurdle known as "non-obviousness"). They allow a person to force others who create totally independent works (at least based on "derivative works") to be forced to stop using their independent creations or perhaps to have the option to pay a "tax" for the privilege of using their non-derivative independent works.
I mention this because it should be clear that if a person creates prior art, that there is at least one implied scope of coverage that would include that prior art yet be very broad and include many other works that share a few features of that work but no more and which would not be called derivative works BUT which would imply that patents taken out that come close to describing that prior art case, would share many of the attributes of that prior art and hence numerous products that infringe on that patent would have infringed on a patent taken out by broadening the unpatented prior art (or maybe even through "derivative works").
As a more concrete example. A patent on a new style of bicycle might relate to a prior art bicycle but come with a head gear and goggles and camera that allow the rider to see their surrounding at 270 degrees (think of a panoramic view) rather than what humans see which is certainly less than 180 degrees.
The USPTO would likely grant such a patent despite it being so similar in so many ways to the prior art bicycle. Were someone to be able to claim copyright on that bicycle, a court could very easily rule that the patented claims describe derivative works of that bicycle.
So my point is that patent authors are allowed to effectively create for themselves protection on what would be derivative works off that prior art, so as to block others from creating essentially what they did and claim: further derivative works. This means, those with money and desire to patent, can "copy" others' independent works and then write the patent so that future numerous people creating "derivative works" of that prior art (whether on purpose or independently) will likely violate the patent.
Patent authors take much inspiration from society, eg, from recent unpatented works, for many of their ideas but then prevent others from coming up with those same ideas off that same prior art or even independently.
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patents and Quinn
I will say, there was an article in the JPTO some years ago (I may be able to find it) where a noted patent attorney argued that NOT using open software is essentially malpractice, because it is demonstrably harder to hack (to steal client's data).
As a patent attorney, I find I am being very helpful with the right kind of client - though I would like to see the law changed so that an idea has to be coupled to execution to make the patent valid - no more trolling.
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Polo Outlet
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