The Very Basis Of Our Patent System... Is A Myth
from the time-to-rethink dept
DWG pointed us to what appears to be Mark Lemley's latest (and I'll caveat that with the point that Lemley is crazy prolific, so he may have written something else more recently) paper on the patent system, in which he explores "the myth of the sole inventor," and worries about the fact that our entire patent system appears to be based on this very myth:The theory of patent law is based on the idea that a lone genius can solve problems that stump the experts, and that the lone genius will do so only if properly incented. But the canonical story of the lone genius inventor is largely a myth. Surveys of hundreds of significant new technologies show that almost all of them are invented simultaneously or nearly simultaneously by two or more teams working independently of each other. Invention appears in significant part to be a social, not an individual, phenomenon. The result is a real problem for classic theories of patent law. Our dominant theory of patent law doesn’t seem to explain the way we actually implement that law.He notes that if it's true that most inventions are being simultaneously discovered by multiple parties, and we still believe in the basis for the patent system as put forth today, we should be rejecting nearly all patents filed today:
The result is a real problem for classic theories of patent law. If we are supposed to be encouraging only inventions that others in the field couldn‘t have made, we should be paying a lot more attention than we currently do to simultaneous invention. We should be issuing very few patents—surely not the 200,000 per year we do today. And we should be denying patents on the vast majority of the most important inventions, since most seem to involve near-simultaneous invention. Put simply, our dominant theory of patent law doesn‘t seem to explain the way we actually implement that law.The paper has an extensive discussion on simultaneous invention, and just how prevalent it is -- something we've discussed before. The point raised is that nearly every major innovation has involved simultaneous invention, and appears to be the sort of "natural" progress that would happen no matter what -- contradicting the idea that patents are needed to act as incentive for the invention.
Multiple, independent studies show that what Merton calls -- singletons are extraordinarily rare sorts of inventions. Indeed, Lamb and Easton call multiple, simultaneous invention -- the pattern of scientific progress. Merton's classic work suggests that inventions occur not merely because an individual did something particularly creative or surprising, but because the time and conditions were right. There are two components to this idea. First, invention is not a discontinuity, but an incremental step in an ongoing process. Inventors are working with the tools they are given and trying to improve those tools or use them to make something new. Schoenmakers and Duysters study 157 different inventions and conclude that they are largely based on extensions of existing knowledge.It's not difficult to figure out why this is true. While patent system supporters continue to insist that patents are "necessary" as the incentive to innovate (we hear all the time in our comments how without patents, no one would bother inventing), the truth is that there are much more effective and useful drivers of invention and innovation: need and consumer demand. Other studies have shown that the major driver for invention is one's own need. That same study found that a second big driver of innovation was to get past a certain hurdle that would make an overall market bigger. In such scenarios patents don't make sense, because lots of players in the market are willing to collaborate to get past the initial hurdle. Giving a patent to a single player would hinder much of the innovation (as we've seen).
Second, invention by one and only one person or group is exceedingly rare. Far more common are different groups struggling with the same incremental problem, and achieving the same solution at roughly the same time. Ogburn and Thomas conducted the classic study here. They document 148 instances of simultaneous invention. Only rarely, they find, does an inventor come up with an idea that is not developed in similar form by others working independently. Data on litigation tells a similar story; empirical evidence suggests that between 90 and 98% of modern patent lawsuits are against independent inventors, not copiers.
Lemley goes on to point out that this issue of simultaneous invention isn't just the aggregate of "regular patents" obscuring the big genius breakthroughs. In fact, he finds that the big breakthroughs weren't really big breakthroughs at all:
In fact, however, the evidence does not simply show that most inventions result from simultaneous independent invention. It also shows that the vast majority of the most important inventions of the past two centuries—the pioneering inventions that seem with the passage of history such radical departures from the prior art—were themselves the result of gradual social processes in which multiple inventors developed the idea at about the same time.From there he goes through the history of a variety of such "breakthrough" inventions, and dispels the "myth of the lone genius" in each case. One by one, he goes through the steam engine, steamboats, the cotton gin, the telegraph, the sewing machine, the telephone, the light bulb, the movie projector, the automobile, the airplane, radio, television, the computer, the laser and polymer chemistry -- and in every case shows how lots of people basically came up with the same basic inventions at about the same time, often independently. In fact, sometimes the names most associated with the "invention" were stragglers, who were well aware of the work of others in the field. Lemley does admit to a few true independent inventions... but, in almost every one of those cases, the invention was more of an accident, such as with penicillin, vulcanized rubber, the pacemaker and film -- all of which resulted from accidents or mistakes, rather than any sort of "individual genius" that needed to be rewarded.
From there, Lemley shows how this basically destroys the very basis on which patent theory rests. It's supposed to be about creating the incentive for what wouldn't be created otherwise. And he notes that patents are "costly" to society, but that we as society agree to bear those costs under the (false) belief that we get these unique inventions because of it. As Lemley notes: "If we are patenting things we would have obtained without the cost of a patent, on this theory, we‘re wasting our money and probably harming rather than helping innovation downstream."
He also debunks the "ex post" theory for the patent system, which argues that even if patents aren't needed to create the incentives for the initial invention, they are then needed afterwards to incentivize the development of the invention into a product for the market. This theory falls apart quickly for anyone who understands basic free market economics: you don't need a monopoly to bring something to market. In fact, monopolies tend to hinder needed innovations. As Lemley points out, existing incentives such as brand reputation and first-mover advantage seem to suffice. And limiting a market to just a single provider, such as the one who invented it, often seems to lead to the invention being mistargeted, away from the most useful application:
Marconi thought the use of wireless radio technology would be to permit ships at sea to communicate with each other; while that is in fact a use, it is hardly the most important one. Armstrong, the inventor of FM radio, thought he had invented a way of extending the reach of AM radio and broadening its bandwidth; he missed the things (like the absence of static) that actually made FM a success. Bell described his telephone as an improvement in telegraphy, and Western Union turned down an opportunity to buy the patent for $100,000, rejecting the telephone as inherently of no value to us. IBM didn‘t foresee the market for personal computers. The transistor was originally conceived primarily as useful in hearing aids. The steam engine was developed to pump water out of flooded mines. Railroads were originally envisioned as a way of getting goods to canals, which would be the dominant form of overland transportation. The VCR was initially marketed to TV stations as a means of airing reruns. And so on.Next up, Lemley debunks the "disclosure theory" as a basis for patents. We've gone through a variety of reasons why disclosure theory is a myth. Lemley's critique is more direct: patents don't disclose anything useful, for the most part. This was highlighted in the recent This American Life episode on patents, in which a software developer with a patent admitted that he didn't even understand what his own patent said. Lemley puts it simply:
The problem is in part one of law; the Federal Circuit has permitted a number of vague general disclosures that don‘t in fact communicate very much to anyone, and patent lawyers often have incentives to write those vague disclosures. So even those who read patents hoping to learn the state of the art would often be disappointed today.He also discusses a few other reasons why disclosure doesn't work, such as the fact that patent applications are kept secret for 18 months, meaning any disclosure is already quite out of date, and the sheer impossibility of finding relevant patents thanks to the terrible classification system and vague wording. Instead of disclosure, reading patents is almost only done for lawsuit avoidance. As Lemley says: "If they read patents at all, it is to know what is owned, not what is known."
The final section of the paper is where Lemley suggests an alternate theory. That is, he isn't convinced that all of this means we should dump the patent system, but that we might need to rethink what patents are for and how to set them up... though even he concludes that his theory isn't entirely convincing and probably needs additional thought. His idea is that "patent races," whereby the opportunity to gain such a monopoly makes inventors rush their work to get the patent, may be a better way of viewing the patent system, with people often "racing" to beat others to the patent. He admits that this setup likely has negative consequences (many of which we see in the market today -- such as blocking out those who independently invent, but come in second or later). However, as an explanation for how the patent system works, it probably presents a much better theory than the standard theories, which he showed didn't work, earlier in the paper.
As always with Lemley, the paper is a great read. While it runs 104 pages, it's quite easy to get through. It's thorough, well-argued and well-documented. I'd be curious, though. to hear any critiques from patent system supporters. Too often when we write about these kinds of papers, we just get angry insults in the comments from patent holders, who insist that it's all just an "excuse to steal." This paper goes to great lengths to back up its arguments, and it would be nice if those who disagree with the position at least were able to do the same.
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Filed Under: mark lemley, patents, sole inventor
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Julio Palmaz invented the stent, which has saved thousands of lives since its introduction.
What did the fiscal rewards from his patent allow him to do? Open a vineyard (a notoriously unprofitable venture) that is leading-edge, and which now produces some of the most acclaimed wine in the world.
As it is near his home, hopefully Mike Masnick has used some of his earnings from this website to purchase some during a nice night out at dinner.
http://www.palmazvineyards.com/team/the_team_family_julio.cfm
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He invented an artificial tube? Are you really pushing for this when the tubes have been around far longer than Julio has been alive?
And he's a doctor! He's made a lot more money than most people to create a vineyard on his offtime.
Somehow I believe you're confusing successful licensing with fiscal rewards for patent bullying.
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First to post was the said troll heh. He might have invented the stent but doesn't the guy who invented the tubes have rights over this considering the current patent system? Can you see the problem or are you in the category mentioned by the last paragraph of this article?
Not to mention that being patented, the stent also failed to save many lives that couldn't afford it due to the same patent system. It also prevented other methods from flourishing because its patent must be awfully generic to the point that it may sound the pipe man can save ppl from an artery obstruction. That's just me saying but there's always the other side of the coin ;)
In the end what's being said here is that the patent system as it is HINDERS innovation and that we should try for alternatives that allow ppl to develop stuff without fearing bullying from big patent holders and trolls.
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Re: Julio Palmaz
The point isn't that the things that are patented aren't valuable to society. The point is that the patent and the heavy cost it places on society isn't always a necessary incentive for its creation.
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Re: Re: Julio Palmaz
And that, friends, was the true purpose of patents. To promote the purchase of alchohol facilities, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. May the tannens be heavy and the adjectives needed to describe the flavor be many.
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What did the fiscal rewards from his patent allow him to do? Open a vineyard (a notoriously unprofitable venture) that is leading-edge, and which now produces some of the most acclaimed wine in the world.
Two things.
(1) You assume that he couldn't have invented the stent without a patent. That's ridiculous. Plenty of medical innovation has happened sans patents (penicillin anyone?)
(2) You appear to be celebrating that a brilliant inventor took his talents to making alcohol, rather than continuing to save lives. Wouldn't your argument be stronger if you could show that the money he got because of the patent went into further innovations?
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It's a pretty sad argument if your only good example is that out of date (and would have been out of patent 50+ years ago anyway).
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Just because something happens at the same time doesn't mean there is a cause and effect relationship.
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That's mainly because for the last 50 - 70 years patents have been imposed upon the field.
Pencillin is a pretty good example. Invented and deeloped in the UK without patents it was then locked up by a US team who patented wome fairly modest improvements and thereby locked out the UK team that had done most of the work.
Want an example of a field where innovation flourishes without patents - Try formula one racing - full of innovation yet two of the leading teams (Williams and Maclaren) have filed just two patents between them in 15 years.
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Pretty sure you're not a teetotaler yourself, actually.
That was one of the more lame rebuttals I've ever seen you attempt to muster up.
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Unless you thinks its obvious that the only reason you would want to save lives is so you can profit and its a once in a million idea and the poor should just die anyway
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Re: Julio Palmaz invented the stent
OK I looked him up - and one thing is clear>he didn't do anything remarkable when he did that. He got the patent because, as so often happens, he was one of a very small bunch of people who was aware of the problem early on. Many many people, sitting where he sat would have done the same.
Also it is clear that patents were not on his mind early on - it was only when he sought a partner (who would expect to see a patent to hang their investment on).
Plus - the major patent lawsuit here involved to parties cross suing each other - not what you would expect if there really was one iunique lone inventor.
If that's your best example - well.....
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Show me evidence that a) somebody else didn't invent it, or wouldn't have shortly; b) he (or anybody else) would not have invented it if he hadn't been able to patent it; c) that he actually got rich because of the patent; d) that (assuming you can support c) his getting rich from the patent did not harm anybody else (say, for example, by helping to drive the cost of materials for a procedure up with the result of either impoverishing somebody or preventing them from having the procedure, or even causing unnecessary fiscal discomfort); e) that his getting rich is actually advantageous to anybody except him, and then we'll talk.
The fact that he makes a nice wine is great, but since I don't like wine and I consider alcoholism to be a societal ill, my appreciation of yet another variety of wine being added to the world is somewhat limited.
The very thrust of this article is that people (usually) invent things because they fill a need and not because they intend to make money from the inventions. Your example does nothing to contradict this; it just shows that yet one more person has taken advantage of the patent system by using his useful tool to rake in a personal fortune -- after he invented it.
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What about Ben Franklin?
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Re: What about Ben Franklin?
Well, since we all know Ben Franklin was actually a time traveler from the future--he understood well the burden patents would impose and so freely offered up his "inventions" to the fledgling United States in order to aid them in getting the ball rolling.
Of course, he only rolled out the quality stuff like University, Public Library, Fire Department, Farmers Almanac, Franklin Stove...
Mainly though, he did it so he could get in good with Congress and become the Ambassador to France. He was a smart man who know a good thing when he saw one.
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Some weed pls?
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There is often no sole inventor, many of our most innovative new ideas and concept come from a group of people working together. Sometimes it is just one person coming up with a better mousetrap (and there are literally thousands of examples of that in the patent system), but often it is a group working together to accomplish something.
There is also the pressure of the marketplace. Many developments are as a result of need. That is to say that a need is identified, and different groups and individuals work to try to find a solution to the problem. There are often multiple solutions to the same problem (see VHS and Beta, as an example), and the push to come up with the best solution is part of the process. It isn't a foregone conclusion that parallel development, or parallel discovery, would lead to exactly the same result. Sometimes it does, a there is sometimes only one viable solution. That is life.
The other problem is the use of the word "need". Development doesn't need a patent system, but the patent system does, over the long haul, provide a structure under which research can be made, products can be developed, and then brought to market with some assurance of the time and market place exclusivity that might be required to make back the money involved. Without patents, I am sure there would still be development. But it isn't clear that investments in development would be as high, and there is no indication that the market price for the initial product would be as low as it is under the current system.
So to look at it as an absolute need is a fail. The system doesn't need patents to work, but patents do appear to make things work better, to encourage investment, and provide a mechanism where developments can be shared through licensing which is beneficial to all parties.
Moreover, it discourages duplicate efforts, and instead encourages parallel or alternative methods to achieve a given result.
Further, the best results of the patent system are in the long run. If you encourage investments to be made, and things to be developed more quickly, then they come out the other end (off patent) more quickly. Less than 20 years isn't a long time in the overall scheme of things, and while it is easy to argue that all inventions would be made eventually, it appears to be a good trade to give exclusivity for a time in order to get there more quickly overall.
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I disagree with much of your post, but this statement is outright ridiculous. The linked article specifically mentions that you couldn't actually create something using the words and drawings in a patent-- even if you're the one who wrote the patent!
I also have to question how a patent on, say, streaming music, in any way is beneficial to 'all parties'. It's a patent that never should have been granted, and it's being used to extort money from a company that actually attempts to innovate. It looks, from where I'm standing, that the patent system is exactly the opposite as you have described it. So much so, that I find myself wondering if we're talking about the same patent system.
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There's no duplicity here. Just a look at the truth as they see it.
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From most patent descriptions I have read, I would be able to either (a) piece together what is needed to make it happen, or (b) find someone skilled in the art who could. It's not an IKEA instruction sheet, it's a patent.
As for your question of a patent on streaming music, you have to go back to the point before the patent existed, and look at what the existing art was at the time. If all you had was super slow dialup connections, or x25 networks, and slow computer systems, a method by which to stream music would be an incredible advancement. If it got us to there being streaming music a few years sooner, we all benefit in the end.
You have to look at most of those patents, and realize that they are near the end of their shelf life, and they were probably very innovative ideas and concepts 20 years ago.
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Ahh, but it didn't.
I was writing software to stream music (and voice) well before that patent was issued, back when all you had was super-slow modems and computer systems.
The patent had nothing to do with the timing of the development of that technology. If anything, it may have slowed it down by preventing other people from working on it.
(Why didn't I patent it myself? In those days, you couldn't patent software, just like you shouldn't be able to now.)
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Betamax vs VHS is one prime example of how patents are not needed (as they are structured today). JVC took an amazing 'risk', they decided to let ppl do whatever with their invention and took advantage of their pioneer position to create a market and crush Betamax even though their technology wasn't the best at the time (Betamax had a better image but Sony wanted full monopoly and got utterly screwed).
Proves the point of the article, patent law is flawed ;)
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You wouldn't notice the difference.
Betamax was superior but only slightly and it was beaten by S-VHS in the end.
Search for "How Beta and VHS Technically Compare...." in the page
http://www.videointerchange.com/video-history.htm#BetaMax
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vhs had better marketing
but mainly it was the porn industry, as always, porn went VHS (i think sony was blocking them from beta) the market followed.
You want a new piece of tech to flourish? find out why the porn industry would want it and get them to use it.
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Simultaneous invention
The later points made in the article about how the patent system isn't (as) required seem to be much more compelling than the "simultaneous invention" point. Maybe he defends the idea of simultaneous invention in more detail in the full article, but based on the information quoted here, it just seems like it's too easilly dismissed by the IP maximalists.
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Re: Simultaneous invention
If you file a suit, you have to actually prove that:
a) It was not independently invented;
b) It would directly harm you (as an actual person, not a corporation-person);
c) It must have a direct element of provable harm to your economical/technological status (e.g. patenting haptic feedback for touchscreens). NOTE: this does not include being undercut for a similar quality item (HTC, Samsung, Nokia springs to mind).
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Re: Simultaneous invention
Simply because patents are not supposed to be obvious - and if more than one person comes up with the idea at the same time there is a prima facie case that the idea IS obvious.
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Here's an example. I'm an algebra teacher and I give a test with a single problem. 80% of the class gets the right answer. Was that answer obvious? No. It took a base level knowledge of algebra and the correct implementation, but it was not obvious.
Don't get me wrong. I'm not saying that an obvious idea should be patentable. I'm just saying that to many people, especially IP maximalists, simultaneous invention doesn't logically equate with obviousness.
For example, the theory of evolution may seem obvious to us now, but it wasn't at the time that it was formulated simultaneously by Darwin and Wallace.
"All truth passes through three stages. First, it is ridiculed. Second, it is violently opposed. Third, it is accepted as being self-evident."
- Arthur Schopenhauer
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Its not about it being obvious its about it "being obvious to an expert in the field" so the patent system is suppose to take the base knowledge and training as a given, its just that the people looking at the patents can't be an expert in all fields and they are usually written in such a convoluted fashion that not even an expert can tell you what it means.
"For example, the theory of evolution may seem obvious to us now, but it wasn't at the time that it was formulated simultaneously by Darwin and Wallace.
"All truth passes through three stages. First, it is ridiculed. Second, it is violently opposed. Third, it is accepted as being self-evident."
- Arthur Schopenhauer"
We are not talking about philosophy and scientific theory. We are talking about product and method. The article argues that the majority of things that are invented are done so by people practicing in their field and/or solving common problems.
Did you know there are hundreds of patents for making toast?
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And how does this contradict my example? It should go without saying that students taking an algebra test would be trained in algebra enough to solve the problem. I'm simply pointing out an example where an expert can arrive at a solution that is not necesarilly obvious.
We are not talking about philosophy and scientifictheory.
I was merely illustrating that the issue of obviousness crosses different categories.
Did you know there are hundreds of patents for making toast?
And how does this relate whatsoever about my point about obviousness? I did not say that the principle of obviousness was being applied correctly by the US patent office. It most certainly is not. What I said was that simultaneous invention would not be an effective argument for IP maximalists.
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What are you arguing? That its not obvious unless 100% of people know it already? They don't mean obvious like you don't have to figure it out, or like you were taught it sometime previously.
Obvious in this case means if any expert(not anyone in the field, experts) was asked how to do it, he could figure out a way using similar methods, or with some of the same puzzle pieces.
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"And how does this contradict my example?"
Students aren't experts, the answer should be obvious if you asked a bunch of algebra teacher though, unless 80% of those kids are geniuses.
"I was merely illustrating that the issue of obviousness crosses different categories."
It was obvious to other experts when they looked at the research. That's why ts the most popular theory because people who are experts in the field look at the research and reach the same conclusion, the obvious one. From what I remember of the history Darwin and Wallace and few others were sharing the research that let them arrive at this conclusion. Patenting research is a whole other topic.
"What I said was that simultaneous invention would not be an effective argument for IP maximalists"
It should be because then who should hold the patent? The one who filed it first? Why can't they be forced to find the best way to use it, or sell it, or whatver to see who succeeds? When does it become open for the third guy who figures it on his own without ever hearing of the first 2? Why can't the market decide which version they want? It stupid to say the first guy to figure something out can sue anyone who figures it out after him without using or knowing about the original guy.
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If a student is instructed intensely on the principles of algebra during a class, this is similar to -- not exactlyt the same! -- as someone who has been instructed intensely over several years in a technical field and who is now considered an "expert". The similarities are blatantly obvious. Sheesh. What is it with people who don't understand analogy?
From what I remember of the history Darwin and Wallace and few others were sharing the research that let them arrive at this conclusion.
Unsure of point.
It should be because then who should hold the patent?
Did you accidentally start responding to someone else's comment? What little sense I can make of your reply doesn't appear to relate to anything I've written.
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So, basically you're saying that algebra is easy. I'm not quite sure how to react to that other than...no it isn't. There may be a straighforward process by which you can instruct someone how to solve algebra problems, but that doesn't mean that they are inherently easy. Using my example above, programming a computer is hard. It takes a certain kind of personality to really embrace, training, and experience to master. Yet once you've reached the point where you are an "expert", certain principles -- such as streaming -- are "obvious" and "easy" to formulate. Writing a program to stream an mp3 is not easy. Coming up with the idea for streaming -- to someone who is an expert programmer -- is obvious and easy. That's the difference.
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"Yet once you've reached the point where you are an "expert", certain principles -- such as streaming -- are "obvious" and "easy" to formulate....
Coming up with the idea for streaming -- to someone who is an expert programmer -- is obvious and easy."
This is precisely why software should not be patentable. If it's 'obvious and easy' to an expert programmer but still then it should not be patentable. The fact that it requires a lot of work is completely irrelevant because the standard isn't 'new' and 'time consumer' it's 'new' and 'not obvious to other skilled in the same field.'
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I guess I am. If you make up a sentence and then quote me, but if you read my post no its not what I said. You said:
"Coming up with the idea for streaming -- to someone who is an expert programmer -- is obvious and easy."
that is what i said. You were making some argument that if it takes training and practice its not obvious. Here I can quote you I don't need to make shit up:
"I'm an algebra teacher and I give a test with a single problem. 80% of the class gets the right answer. Was that answer obvious? No. It took a base level knowledge of algebra and the correct implementation, but it was not obvious."
Do you even know what your point is anymore? It seems here it was that if only 80% of experts can get it right its not obvious. But now its: there is a difference from something being obvious to everyone and being obvious to experts? NO SHIT!
You seemed to be claiming that simultaneous invention is not a good reason to argue against the patent system because its only obvious if you know what your talking about. Of course, but if its obvious to people who know what they are talking about it shouldn't be patentable. Your analogy was a group of students taking a test and 80% of them getting it right and you said that wasn't obvious because they had to be students to be able to take the test. Of course obviousness doesn't mean some uneducated bushman will know how to do it. Obvious in this context means obvious to an expert in the field.
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Re: Re: Re: Re: Simultaneous invention
To someone skilled in the field ANY algebra problem is obvious. I recall an anecdote about a Maths professor in a lecture:
Professor "it is obvious that.."
Student "excuse me sir, Is it?"
Professor - leaves the room for 10 minutes - then returns
Professor "Yes it is obvious"
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Re: Re: Re: Re: Re: Simultaneous invention
Call me a geek, but I LOLed at the joke. As for this statement, the reason that it's wrong is the very basis of my example/analogy. You can be equiped with all of the tools necessary to solve a problem, but still be required to apply that knowledge to come up with solution to the problem. Another example: if you were to have asked a computer programmer a few years ago how they would allow people to listen to music on a smart phone, they'd probably pause for a moment and describe the concept of streaming. They would not need ten minutes, days, or weeks to come up with the principle of streaming. It would be...obvious. This is materially different from solving an algebra problem.
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Re: Simultaneous invention
Actually that makes it more risky to try to innovate, because if someone else beats you by a day, your investment becomes worthless. Without a patent system, you can still compete in the market even if you don't get there first.
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Re: Re: Simultaneous invention
It's worse than that. You can be up for a combined legal and licensing bill of considerably greater than the money you put into making your independent invention in the first place. That can put your innovative company into a financial death spiral. You have no way of knowing whether a patent troll is going to sue you or not. If one does, you do not know how much it will cost you. Financial planning gets to be just about impossible.
People thinking of starting a business see these large risks of unknown magnitude, then decide it is all too hard. So they do not start the business. Result: damage to the economy and higher unemployment. That is a cost of the patent system. Even though the cost is hidden, it is still real and large.
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Re: Simultaneous invention
"In fact, sometimes the names most associated with the "invention" were stragglers, who were well aware of the work of others in the field."
If the patent system was an incentive for the "first inventors", wouldn't you see the first inventors claiming the patent?
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They never saw it coming......
I think the patent system is flawed in relation to human nature. People (in general although especially inventor types) will spend more time finding a solution to make something better/easier than they will ever spend on the task/item. At the same time, people will spend more time crying about a "stolen" idea than they would just coming up with a better idea. For the most part human nature is going to point out that people are a complicated kind of lazy, but none the less lazy.
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Patents and other IP failures relating to fundamental property rights
Going even deeper though, I recently read a very well-written article on the fundamental problem with patents and other intellectual property "rights" in light of a pure understanding of physical property rights, written by Stephan Kinsella, a patent lawyer of 16 years:
Intellectual Property and Libertarianism (mises.org)
The basic claims go like so:
1. Ownership can come about only by contractual transfer or homesteading (first claim).
2. Intellectual "creation" is not sufficient for ownership, since if I carve a statue out of your hunk of marble without your permission, it's still yours (though my work may make it more valuable to you).
3. Intellectual "creation" is not necessary for ownership, since if I carve a statue out of MY hunk of marble, it was already mine (though carving may add value, again, it doesn't affect ownership).
Then with those three points, he comes to this conclusion:
The whole article is worth reading, since it provides a lot more thorough reasoning than my summary and excerpt here. He also addresses the pragmatic approach (ignoring said property rights for the good of society) and why it doesn't make sense either.
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Re: Patents and other IP failures relating to fundamental property rights
Given all of that, copyrights and patents take away rights. We've always had the right to copy, until a patent or copyright comes along, and suddenly we lose those rights in favor of, as you say, "the state ... assigning to A a right to control B's property". We grant to A the right to infringe our rights.
If there is a moral component to copyrights and patents at all, it is that they are immoral.
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Seriously, what are the politicians thinking? Are they even thinking at all, or just being paid by companies to push these laws?
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More Cowbell!
Plus its interesting that
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Er, I've held all along that we should support the individual inventor.
Anyway, even if a myth in current practice, the system OUGHT to promote the few with guarantees of exclusivity. The patent system was never made for corporations, that's what has changed.
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Re: Er, I've held all along that we should support the individual inventor.
If steve jobs held all of Apples patents and passed them on when he retired, what would be the difference?
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Re:
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When is somebody going to try and patent a study?
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Re:
just little things like that
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Then I can only assume you have zero experience in the world of intellectual property. Lemley is one of the foremost thinkers and writers in the field, well respected by many judges, and isn't just an academic by a practitioner as well.
On top of that his writing is clear, easy to understand and his points are well documented and backed up with facts.
You on the other hand fail to point out a single thing you disagree with, but instead focus on a weak anonymous attack on Mr. Lemley. Guess who's more credible to... um... everyone?
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Re: Re:
Perhaps I expect too much, but if one is inclined to speak to the law, it does seem to me that they should speak to all of it, and not just to some easily identified piece parts.
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Re: Re: Re:
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Re: Re: Re:
Perhaps I expect too much, but if one is inclined to speak to the law, it does seem to me that they should speak to all of it, and not just to some easily identified piece parts
I love how you always do this. Rather than *EVER* point to a single thing that you actually disagree with, you do the pretentious asshole move of saying "curiously, I do not recall him mentioning some random source that I prefer..."
Put up or shut up. If Lemley got something wrong, say it. Otherwise, admit you don't have the goods. And remember, last time I challenged you on something like this, you eventually (after many back and forth comments) you admitted you didn't have the goods. So it's best to come out up front and admit that.
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SEe also Eric Johnson's work
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patent up
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Re: patent up
This is why we NEED to expand the system to cover ideas.
*removes hat, feels slimy, goes to take shower*
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Connections
He also sometimes mentions when two people (or groups) came up with the same idea, but one gets to market first; also at least one example of two groups coming up with different solutions to the same problem about the same time. (In this case the cheaper, faster method won.)
Or a method of getting your oven hot enough to melt steel being borrowed from glassmakers. I guess some folks will say he "stole" that idea and claim that glassmakers were put out of business because they didn't get paid... ignoring the fact that it advanced the steel industry (and clockmaking, I think it was, and by extension, navigation). Among other things.
Or how about how motion pictures started as a bet as to whether a horse's feet all simultaneously leave the ground during a gallop?
None of these would ever have been invented if it hadn't been for the patent system! ... Oh, wait.
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Re: Connections
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Patent myths
Anyway, Lemley is looking at problems with the patent law that doesn't require legal theory to fix. Just as with the terrible US Supreme Court decision a few years ago that refused to invalidate the Copyright Law extensions to Mickey Mouse a few years, there was a very valid constitutional and policy basis to invalidate these extensions as law. A majority of the Court, which is politicized of course, wouldn't bite.
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I see...
The lazy bastards can't make phones more cheaply than ZTE and Huawei so screw them! They all deserve to lose their jobs -- all they did was invent the bloody technology!
Qualcomm better watch its back, I guess.
I see, I see...
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Re: I see...
Where exactly did you see that written? I must have missed it.
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Patenting again
"Lemley does admit to a few true independent inventions... but, in almost every one of those cases, the invention was more of an accident, such as with penicillin, vulcanized rubber, the pacemaker and film -- all of which resulted from accidents or mistakes, rather than any sort of "individual genius " that needed to be rewarded."
OOPS! Goodyear accidentally discovered vulcanization, but spent a LOT of money testing it and making it useful - money that HE said he would not have spent had he not had patent protection.
The discoverer of penicillin (name escapes me) got a lot of money from (essentially) VCs to test it thoroughly - money he would NOT have gotten without patent protection.
I believe the same is true of the other inventions, but I know less about them - however, there is every reason to believe that NONE of them would have moved forward if the technology could have been stolen and exploited by others!
Even so, most patents today should never have been granted. I spend more time explaining to potential clients why they may not want to apply for a patent than otherwise.
Also, I absolutely refuse to do software, business, or so-called "broad" defensive patents.
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Re: Patenting again
But he also claimed it wasn't an accident. And there was another guy who patented it around the same time. Wikipedia also indicates that "Goodyear did not profit from his invention."
http://en.wikipedia.org/wiki/Vulcanization#History_of_vulcanization_of_rubber
The discoverer of penicillin (name escapes me) got a lot of money from (essentially) VCs to test it thoroughly - money he would NOT have gotten without patent protection.
I think Fleming never patented penicillin. The only patent I can find reference to is for a method of mass production, granted in 1948, 20 years after Fleming's accident.
there is every reason to believe that NONE of them would have moved forward if the technology could have been stolen and exploited by others!
Every reason, huh? But you haven't named any, other than your belief that they were all patented and wouldn't have been developed without patents. Not very convincing.
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Arguments against patenting
Good argument against patents AS THEY EXIST TODAY, doesn't even consider patents as the founders intended.
Also, a little misleading: merely suing an inventor does not mean an ORIGINAL inventor, more likely to mean a COPIED invention.
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Re: Arguments against patenting
I think you may have completely missed the point of the article. The patent system the founders intended was based on the idea of a lone independent inventor coming up with something nobody else would have, and needing protection to develop it. The fact that almost all important inventions are arrived at by multiple groups almost simultaneously throws the entire system into question. Which, since you're a patent attorney, I can certainly understand you would not be happy with. :-)
Also, a little misleading: merely suing an inventor does not mean an ORIGINAL inventor, more likely to mean a COPIED invention.
It says "against independent inventors, not copiers" (emphasis mine).
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Myth of Simultaneous Invention
If one reduces the issue to those inventions that are special or basic then such invention is very rare.
It is common that people perceive the appearance of simultaneity when in fact some key fact or idea has propagated (within minutes) to the secondary inventors. In many cases MERELY THE FACT THAT ANOTHER HUMAN HAS MASTERED THE PROBLEM is sufficient to induce a follow-on solution set.
It is also quite common that such simultaneity is in fact a fraud by indirect or directly related parties.
I have made a short response directly to Mark. I would be happy to make a much longer response in a scholarly fashion but sadly I lack the resources and support of Stanford or for that matter any outside support. I am free but with very limited resources.
This all still leads us to the absolute need in society to reward those weird, and socially difficult creative types that willingly create our open technological economy.
The present America Invents bill relies on rigid corporate structures to COMMAND creativity- which refuses to be commanded.
Rigid control can drive engineering and manufacture but not new creation. Germany in WWII never invented a single new thing, not one- rigid Nazi heirarchy did produce quick engineering results (with a little help from the fear of being posted to the Russia front), and slave labor producing amazing manufacturing results).
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Re: Myth of Simultaneous Invention
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Re: Myth of Simultaneous Invention
Let's see you do the same.
It is also quite common that such simultaneity is in fact a fraud by indirect or directly related parties.
Prove it. Charging people with fraud is a big claim. Let's see you back that up.
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Gross Misstatement by Lemly's 104 page Apologia for Overfed, and Overpriced Lawyers
"The theory of patent law is based on the idea that a lone genius can solve problems that stump the experts, and that the lone genius will do so only if properly incented. We deny patents on inventions that are "obvious" to ordinarily innovative scientists in the field. Our goal is to encourage extraordinary inventions – those that we wouldn’t expect to get without the incentive of a patent."
The Lemly quote above has been highlighted because it is entirely and utterly without merit. "Ordinarily innovative scientists in the FIELD" , yet the field gets narrower and ever narrower, while the power of search engines gives the examiner ever wider and wider scope to try to knit disparate fields and elements of invention together in rejecting genuine inventions. When the scope of field is reasonably limited the number of breakthrough inventions one can count grows very quickly.
Lemly, like many if not most students of law, simply cannot imagine the act of creation, or the energy among others it induces. Lemly wants everything (except his work) to be the product of a committee in the world of invention and technology. Creativity is real and normally the product of ONE mind, the denial of creativity and originality is the province of companies, committees and governments. It is the defense of denial and theft by large interests that is the great engine of employment for Lemly and other lawyers.
Vic Kley
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Re: Gross Misstatement by Lemly's 104 page Apologia for Overfed, and Overpriced Lawyers
I would think that the existence of the Patent system is the engine of employment for countless persons in the legal field. The abolishment of software patents would greatly reduce the jobs for lawyers.
Please compare the number of IP attorneys or lawsuits in the fashion industry versus the smartphone sector.
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myth
You are missing the point. It is a question of property. According to Thomas Jefferson the right of inventors and authors to their discoveries and creations is irrefutable. To deprive one of their property which is the anchor to their livelihood is to deprive them of life itself.
If large multinational infringer and Chinese interests don't pay you to write your rubbish, they should.
Please see http://truereform.piausa.org/ for a different/opposing view on patent reform.
http://docs.piausa.org/
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Re: myth
Where are your many titles?
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Re: myth
Your interpretation is... interesting. "It has been pretended by some, (and in England especially,) that inventors have a natural and exclusive right to their inventions..." (emphasis mine) -Thomas Jefferson
To deprive one of their property which is the anchor to their livelihood is to deprive them of life itself.
Patents and copyrights are not property.
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Patent System Too Much of A Possibly Good Thing
Here's a prescription to fix the problems:
1. Severely limit the value of patents by reducing their life to a reasonable period, say 10 years, of which 5 years is an exclusive right, followed by 5 years during which anybody can license.
2. Limit the license fees obtainable to a small percentage of the original sale price of a sell-able product, shared equally by all patent claimants, say 2%. If my product sells for $10, all patent claimants on that product may share equally 20 cents. The manufacturer can put that money in escrow and the patent claimants can fight over it.
I think these changes, implemented by Congress, would do much to reduce the flaws in the system, while still keeping some semblance of the requirements in the Constitution.
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Re:
Sure. Go ahead and read it. Then read Lemley's response:
http://ipwatchdog.com/2011/10/09/defending-the-myth-of-the-sole-inventor/id=19648/
O ne of the two papers ends up being shredded. And it's not Lemley's.
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I note that the many posts with facts are taking issue with Lemley's supposed facts. His cites for simultaneous invention are mostly relating to non-patentable discoveries. One of the two cites blithely points to the "simultaneous" invention of the telephone, which has been addressed by two different studies showing that Elisha Gray did not invent Bell's telephone, and when he finally demonstrated one, it was based on Bell's principles, not his own.
I believe Lemley also erred in citing Watt, since he then has a diatribe about Watt locking up technology, but does not provide a single piece of evidence supporting simultaneous invention. Is Lemley's paper about simultaneous invention, or a diatribe about possible effects of patents.
Lemley then tries a snow job by claiming that rejection of about half of all patent applications is the ultimate evidence of simultaneous invention. Except, that is plain wrong. Patents are frequently abandoned for economic reasons that have nothing to do with other inventions. Patents are often rejected on patents that have long expired. Lemley cannot just make a statement about the relevance of the rejections of patent applications without a study of those applications and whether the rejections were the result of simultaneous invention or for other reasons.
Lemley also completely avoided the legitimate counter viewpoint that the lack of interferences, which fundamentally would indicate simultaneous inventions, and a similar lack of litigation, which he at least needs to put into context.
Yes, a paper is being shredded, and cracks are appearing in Lemley's.
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