Patent Judges Completely Out Of Touch With How Much Patents Hinder Technology Innovation

from the and-that's-sad dept

Thu, May 17th 2012 12:50pm — Mike Masnick

Last year, we were quite disappointed (but not surprised) to see former CAFC Judge Paul Michel argue publicly that we need many more patents to encourage innovation. He went so far as to suggest a tax credit for getting patents. He also argued that more patents would mean more technology jobs -- ignoring pretty much all of the research out there. CAFC, of course, is the appeals court that handles most patent appeals cases, and since its establishment has been a major part of the problem. You can trace the massive expansion of bogus patents to CAFC's views on patenting, expanding what was thought to be patentable, and generally doing tremendous harm to the important limits on such government granted monopolies.

Tim Lee recently got to talk to Michel following a talk he gave, and what becomes clear is that Michel is completely out of touch with how much of a problem patents are in the tech world today. Lee knows this subject better than probably anyone else, and when he tried to dig in on key points, it was obvious that Michel's knowledge of what actually is happening in the industry is based on myths and imagination, rather than reality. For example, when Michel pointed out that he's "a facts and figures guy" rather than one who focuses on "anecdotes and assumptions," Lee quickly points to James Bessen and Michael Meurer's comprehensive book on why patents hurt the tech industry. Michel does not appear to have actually read the book:

Some scholars have collected facts and figures. For example, a 2008 book by James Bessen and Michael Meurer attempted to compute the costs and benefits of the patent system to various industries. They found that benefits significantly exceeded costs for the pharmaceutical industry, but the costs of litigation exceeded the benefits of holding patents in many other industries. Their work suggests that the patent system has become a net disincentive to innovation in those industries. The problem was particularly severe in software.

Strangely, Michel singled out Bessen and Meurer's book as an example of a text that relied too much on anecdotes and not enough on data, declaring it "very disappointing." We pressed him on this. Michel conceded the problem was less that it was too anecdotal and more that he disagreed with the book's premise—that high litigation costs were a sign the patent system wasn't working.

Indeed, anyone who claims that the Bessen and Meurer book is about anecdotes either hasn't read it or is lying. It goes through so much data and so much evidence that, at times, it's a daunting read. But what Lee's discussion with Michel shows is that, while he insists he's not about "anecdotes and assumptions," that appears to be what he's entirely about. This comes to light quite clearly when Michel finally suggests that if software patents are so bad for innovation, that software companies can just "opt out":

Judge Michel seemed unaware of the depth of the software industry's dissatisfaction with the patent system. He suggested the patent system's critics were relatively marginal figures not representative of the views of the broader technology industry. And he didn't seem to understand the dynamics of the patent arms race currently affecting the software industry.

"If software is less dependent on patents, fine then. Let software use patents less as they choose," Michel said. "If other industries are terribly dependent on patents, then let's not wreck the system just because software people are unhappy."

I don't know if Michel has ever spent any time around the startup community, but the vast majority of entrepreneurs I talk to would absolutely love to "use patents less." But they can't. Because there are all sorts of patent lawyers and trolls who get patents on all sorts of crap and then sue these companies. You can't just opt out. How the hell do you opt out of getting sued by a bogus patent troll?

Lee notes that current CAFC chief judge Randall Rader was at the same event and complained about how unfortunate it was that "the patent system [is] coming under attack." We've written about Judge Rader before, and he seems equally out of touch -- simply refusing to believe that there are significant problems with the patent system. As Lee notes, these judges don't actually have the slightest clue what actually happens in the world of technology and innovation. Instead, their worldview is filtered through the very distorting lens of patent attorneys who profit off of the system:

Rader and Michel's perspectives are likely skewed by the fact they spent their time on the bench surrounded by patent lawyers (who by definition work with firms that have the resources to hire patent attorneys). For the typical software-producing firm, patent lawyers are simply too expensive. Most firms never get patents, and they typically settle patent claims rather than taking them to court. As a result, Judges Michel and Rader rarely hear from smaller firms for whom the patent system is nothing but a burden.

It would be nice if there were some way to teach judges about what's actually happening out in the world, rather than the very, very distorted view they get on the bench.

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Filed Under: cafc, jim bessen, michael meurer, paul michel, randall rader, tech industry

77 Comments

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Anonymous Coward, 17 May 2012 @ 12:53pm

"Patent Judges Completely Out Of Touch With How Much Patents Hinder Technology Innovation"

In other news grass is green, bears shite in the woods and the Pope is Catholic.
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:Lobo Santo (profile), 17 May 2012 @ 1:01pm

Good news everybody!
Eventually those judges will die, hopefully to be replaced with younger fellows who DO understand how patents suck for pretty much everybody except patent attorneys.
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Anonymous Coward, 17 May 2012 @ 1:04pm

Re:
I'm not sure about one of those....
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The eejit (profile), 17 May 2012 @ 1:06pm

Re: Re:
It's obviously the grass.
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Anonymous Coward, 17 May 2012 @ 1:10pm

getting them to listen to real people that try to make a living from innovating rather than to those that want to create nothing other than self-interested monopolies would be a reasonable way to start. as they seem to think that there is no world, no life, outside of a bloody court room, the very best of luck to you with that!
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Anonymous Coward, 17 May 2012 @ 1:11pm

Off topic, but surprised there's still no mention here of Anonymous DDoSing the Pirate Bay . . .
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Ruben, 17 May 2012 @ 1:13pm

Re: Good news everybody!
Voted "sadly insightful".
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bob, 17 May 2012 @ 1:16pm

TechDirt totally out of touch about how much patents pay for innovation
Of course patents are a pain. No one likes them. But if the innovative companies really wanted to get rid of them, they would have scrapped the system long ago.

The fact is that research and development cost money. How do you think that Xerox funded PARC. Did their clever patent attorneys curtail innovation? Nope. Steve Jobs came along and worked around them.

Companies look at the cost to innovate around patents and then compare it with the licensing costs. The fact is that Xerox funded PARC for many years on the revenues from just a few patents on the laser printer. Now that their 17-20 year term is up, everyone is free to use the information.

The system may not be perfect, but the US has had a strong patent system for 200+ years. Given that the US has also lead the world in innovation in many forms for many years and given that the US's innovation has accelerated as IP laws got stronger, I contend that innovation.

How much innovation is coming out of Somalia? It's a libertarian paradise where there are no IP lawyers. If you really believe that patents are so horrible, you should pack up and move there RIGHT NOW. I'm sure that all of the IP-haters will join you and you can innovate. Please fix AIDS and Cancer. The world will love you. I'll put $2 in your tip jar as a way of saying, "Thank you."
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bob, 17 May 2012 @ 1:17pm

TechDirt totally out of touch about how much patents pay for innovation
Of course patents are a pain. No one likes them. But if the innovative companies really wanted to get rid of them, they would have scrapped the system long ago.

The fact is that research and development cost money. How do you think that Xerox funded PARC. Did their clever patent attorneys curtail innovation? Nope. Steve Jobs came along and worked around them.

Companies look at the cost to innovate around patents and then compare it with the licensing costs. The fact is that Xerox funded PARC for many years on the revenues from just a few patents on the laser printer. Now that their 17-20 year term is up, everyone is free to use the information.

The system may not be perfect, but the US has had a strong patent system for 200+ years. Given that the US has also lead the world in innovation in many forms for many years and given that the US's innovation has accelerated as IP laws got stronger, I contend that innovation.

How much innovation is coming out of Somalia? It's a libertarian paradise where there are no IP lawyers. If you really believe that patents are so horrible, you should pack up and move there RIGHT NOW. I'm sure that all of the IP-haters will join you and you can innovate. Please fix Cancer first. The world will love you. I'll put $2 in your tip jar as a way of saying, "Thank you."
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BeachBumCowboy (profile), 17 May 2012 @ 1:19pm

Opt Out
How many entrepreneurs out there, the ones that actually are interested in building a company that provides value, would take the option of never being sued for violating a patent if they promised to never file a patent themselves? I'm sure the answer is "almost all of them."
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Richard (profile), 17 May 2012 @ 1:20pm

Re:
Perhaps because it isn't true..
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Anonymous Coward, 17 May 2012 @ 1:21pm

Patent judges couldn't give a shit whether patents hinder innovation.

They only give a shit about money.
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Richard (profile), 17 May 2012 @ 1:23pm

Re: TechDirt totally out of touch about how much patents pay for innovation
the US has had a strong patent system for 200+ years.
and entered WW1 without any serviceable aircraft because of a patent dispute between the Wrights and Curtiss.

Patents are at best a distraction.
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:Lobo Santo (profile), 17 May 2012 @ 1:30pm

Re: Re:
To some people, there's only one source of DDoS attacks.
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Anonymous Coward, 17 May 2012 @ 1:32pm

Re: TechDirt totally out of touch about how much patents pay for innovation
if the innovative companies really wanted to get rid of them, they would have scrapped the system long ago.
Instead of making bald-faced assertions that have already been refuted in the article you're posting about perhaps you should read said article, instead of looking like a complete idiot.

Here, this is the sentence where Mike pre-refuted your comment:

You can't just opt out. How the hell do you opt out of getting sued by a bogus patent troll?

Don't you feel foolish now?

Companies look at the cost to innovate around patents and then compare it with the licensing costs.
[citation-needed]

No, companies instruct their employees to ignore patents, so that when (not if, but when) they're sued by a patent troll for "violating" an obvious patent, they don't get hit for knowingly infringing. When they're sued, they look at the cost of settling vs. the cost of a lawsuit, but that's not the same thing.
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Anonymous Coward, 17 May 2012 @ 1:35pm

Re: TechDirt totally out of touch about how much patents pay for innovation
Xerox does a whole lot of hardware, and PARC existed before the laser printer. And... Xerox PARC did not patent the graphical user interface (software), nor did they patent object oriented programming. That would be why we all have graphical user interfaces instead of text based operating environments, and programs that are both functional, consistent and easy to use, instead of a whole lot of procedural retreads like the justice system.

But more importantly:
#1: Why won't anyone think of the polar bears?
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jjmsan (profile), 17 May 2012 @ 1:39pm

Re: TechDirt totally out of touch about how much patents pay for innovation
And in the 1980's the system was changed to allow procedures and business idea's to be patented pretty much doing away with the necessity to come up with a working model. That and the fact that most of the people vetting patents are no longer highly informed in the field means we have a broken system. Go back to patenting physical objects that you create only and the system would be acceptable again.
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Anonymous Coward, 17 May 2012 @ 1:41pm

Yet another reason why judges are really just politicians in a black robe, most of them are just as out of touch as most of the politicians.
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BentFranklin (profile), 17 May 2012 @ 1:44pm

What in the world does it mean for an industry to be "dependent on patents"? It only sounds bad to me.
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Anonymous Coward, 17 May 2012 @ 1:53pm

Re: Opt Out
You know I'm fresh out of ways to lose money in Vegas. I'll put it all on the patent system!
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TtfnJohn (profile), 17 May 2012 @ 1:58pm

The self-same lawyers who distort the judge's (used collectively) themselves have a distorted view of the value of software patents. After all, if you can patent the design and particulars of a weed whacker head why not software?

Certainly it appears as a physical good. It often comes in boxes with pretty pictures on them. The same pretty pictures that are there when you download the. Legally of course.

And there are CDs in the boxes or DVDs that you use to install the software. After you download, legally, the software then you need to burn CDs or DVDs to install the software. All, touchable, seeable and losable physical goods so what's there must also be, right?

Not that the legal profession is stuffed to the gunwales with shysters or complete morons. They aren't. To those of us immersed in technology and the problems software patents can bring with them are as obvious as the sun on a clear day. To the tech-ignorant they just can't be because, after all, they're a good thing. Even the US Constitution says so.

Still, among the reasons patent law is held in such disregard these days are things like rulings allowing for patenting things like software and business methods which vanish only to reappear as trolls. That there's a backlash and people are "attacking" patents which would hurt the mythical single inventor in his garage out to make it rich. (No problem there either.)

It's the same dynamic from a different line of sight that what has brought copyright into deep contempt. Copyright seems destined to outlive or Sun and might even survive the Sun swelling to a Red Dwarf when it's life span comes to an end.

The concepts of copyrights and patents haven't shifted from an analog to the digital world at all well. It's not surprising given that they were and are based on norms in the analog world that fit there. In fact both are industrial age problems designed as solutions Our world is now vastly that that in which copyright and patent law came into and aren't appropriate to a digital world. In fact they are often, correctly, see as deterrence to progress rather than aids to it. I'm sorry if that bothers IP maximalists but that's how it is. And that opinion is held by far larger segments of civil society than you seem to realize.

The harder maximalists squeeze the more they're hated, the more they're hated the less chance of success they have become and the burial of that which they're trying to defend becomes.

A free market and a free people reject outside control and will fight to reject it. Whatever may be good about what IP maximalists are trying to defend will become Internet road kill the more strident the IP maximalists clamp down or create a culture for more matent trolls.

Clear?
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Anonymous Coward, 17 May 2012 @ 2:00pm

Re: Re: Re:
It seems the attacks were directed towards Wikileaks. The pirate bay may have been a side-effect.
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Anonymous Coward, 17 May 2012 @ 2:12pm

" It seems the attacks were directed towards Wikileaks. The pirate bay may have been a side-effect."

Citation please ?
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Richard, 17 May 2012 @ 2:15pm

Re: TechDirt totally out of touch about how much patents pay for innovation
All thats needed to blow your assertations out of the water is this patent "A method of excercising a cat" - a patent on playing with your cat with a laser pointer. Get rid of software and method patents and you might have a point.

http://patft.uspto.gov/netacgi/nph-Parser?Sect2=PTO1&Sect2=HITOFF&p=1&u=/net ahtml/PTO/search-bool.html&r=1&f=G&l=50&d=PALL&RefSrch=yes&Query=PN/5443036
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Richard, 17 May 2012 @ 2:15pm

Re: TechDirt totally out of touch about how much patents pay for innovation
All thats needed to blow your assertations out of the water is this patent "A method of excercising a cat" - a patent on playing with your cat with a laser pointer. Get rid of software and method patents and you might have a point.

http://patft.uspto.gov/netacgi/nph-Parser?Sect2=PTO1&Sect2=HITOFF&p=1&u=/net ahtml/PTO/search-bool.html&r=1&f=G&l=50&d=PALL&RefSrch=yes&Query=PN/5443036
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Anonymous Coward, 17 May 2012 @ 2:16pm

Judges are to adjudicate based upon the constitution and the law as written by congress.
What we need to do is change the laws.
Judges should not be looking at how patents hinder technological innovation it's not their job.

Just as judges should not be writing laws from the bench or using international law as a basis for their decisions.
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mwdallas (profile), 17 May 2012 @ 2:19pm

Out of touch? But that's not their job
A judge's job is to rule based on the current law, not re-interpret or rewrite the law in light of what's trendy or current. We can argue about whether they actually do that or not, but it seems pointless to complain that the __judges__ are out of touch. If the law is wrong, in light of what we know today, it's the __legislature__ who have to fix the laws. Not the judges.
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LyleD, 17 May 2012 @ 2:19pm

And the bad news!
Those judges will be replaced from the pool of current patent attorneys who have no inclination whatsoever of fixing their industry cash cow.
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Anonymous Coward, 17 May 2012 @ 2:29pm

Re: TechDirt totally out of touch about how much patents pay for innovation
Yes, the lack of a strong innovative tech industry in Somalia is primarily because of their lack of IP protection. I hear piracy is rampant there.
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Anonymous Coward, 17 May 2012 @ 2:33pm

The problem isn't one of ignorant judges, it's one of outright corrupt and dishonest judges. Our system is corrupt and that includes our judges.
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Anonymous Coward, 17 May 2012 @ 2:35pm

Re:
The citation was given by Richard at 1:20 in a link. Here is the full URL:

http://www.digitaltrends.com/web/the-pirate-bay-anonymous-not-behind-ddos-attack/
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bob, 17 May 2012 @ 2:37pm

Re: Re: TechDirt totally out of touch about how much patents pay for innovation
Uh, no. Extreme examples from any system don't disprove the entire system. Wacko patents don't invalidate the patent system any more than Jerry Sandusky invalidates all football.
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bob, 17 May 2012 @ 2:39pm

Re: Re: TechDirt totally out of touch about how much patents pay for innovation
And did the US lose? They solved the issue quickly. As it was, the Germans had plenty of planes and I doubt that a better supply of US planes would have made a darn bit of difference.

Plus, the US has rules that allow the government to just take the patent and decide how much it's worth as RCA found out.
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E. Zachary Knight (profile), 17 May 2012 @ 2:40pm

Re: Out of touch? But that's not their job
The role of judges is to interpret the law. That is their role in our system of checks and balances. Their job is to look at the actions of an individual/entity and determine if those actions comply or are in violation of what the judge feels is the application of the law.
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Alana (profile), 17 May 2012 @ 2:44pm

Re: Re: Re: TechDirt totally out of touch about how much patents pay for innovation
There are no winners in war.
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Anonymous Coward, 17 May 2012 @ 2:45pm

Re: TechDirt totally out of touch about how much patents pay for innovation
Given that the US has also lead the world in innovation in many forms for many years and given that the US's innovation has accelerated as IP laws got stronger, I contend that innovation.

Do you beleive that the Internet would be even a fraction as useful or advanced today had BT won their hyperlink patent suit in 2002?

http://news.cnet.com/2100-1033-955001.html
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bob, 17 May 2012 @ 2:45pm

Re: Re: TechDirt totally out of touch about how much patents pay for innovation
We can't opt out as individuals, but the companies can get together and change the law. They do this all of the time and everyone at TechDirt is happy to believe the idea that the big companies are (1) all powerful and (2) able to buy whatever laws they want. So why do you deny it now?

The fact is that the computer industry has been around for more than 80 years. During that time, IBM, Honeywell, Apple, Google and everyone else could have gotten together and scrapped the patent system-- if they all agreed. It's not like the consumer is going to say, "Gosh, I might want to prosecute a patent pro se and so we need to keep it around."

Face it. You can't claim that Washington is just a tool for big industry and then claim that it's not.
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bob, 17 May 2012 @ 2:48pm

Re: Re: TechDirt totally out of touch about how much patents pay for innovation
So they didn't patent it. Perhaps they didn't feel they had any real claims. Maybe they realized they had borrowed heavily from SRI. (Read John Markoff's book about what the Doormouse saw to get a clue about how broad the innovation happened to be.)

The fact is that it's usually pretty easy to work around most patents. It may not be worth it, but it's often possible to defeat them without much work. This is why the licensing fees are usually rather reasonable -- when it comes down to it.

I realize it's far from perfect, but you must remember that the inventor has limited powers too.

Without patents, the big companies just take all of the ideas and never pay for research.
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bob, 17 May 2012 @ 2:51pm

Re: Re: TechDirt totally out of touch about how much patents pay for innovation
Oh, I don't know. I can't get into specifics for lack of time, but I do know that people work around patents all of the time. If they can't get the patent office to kill them, they can usually come up with an even more innovative idea that gets around the claims. It happens most of the time. It's really rare for there to be a groundbreaking patent that locks up an area for a long time.

I think the way the court decided proves my point. Patents aren't worth terribly much in most cases.
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bob, 17 May 2012 @ 2:54pm

Re: Re: TechDirt totally out of touch about how much patents pay for innovation
You may be joking, but I think you're spot on. The rule of law nurtures innovation. Piracy disrupts it.

If you don't believe me, go to Somalia and start up your IP-free shangri-la.
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Anonymous Coward, 17 May 2012 @ 2:54pm

Re: Re:
Comprehension FAIL on my part ... can't find anything stating attack on Pirate Bay was intended for Wiki. ZDNet is saying both targets were deliberate:

http://www.zdnet.com/blog/security/the-pirate-bay-returns-anonymous-hater-takes-credi t-for-ddos/12233
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Mike Masnick (profile), 17 May 2012 @ 3:03pm

Re: TechDirt totally out of touch about how much patents pay for innovation
The system may not be perfect, but the US has had a strong patent system for 200+ years. Given that the US has also lead the world in innovation in many forms for many years and given that the US's innovation has accelerated as IP laws got stronger, I contend that innovation.

Correlation is not causation. Why do you ignore the stacks of evidence that show in a very detailed manner how the patent system hinders the pace of innovation?
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Rikuo (profile), 17 May 2012 @ 3:11pm

Re: Re: Re: TechDirt totally out of touch about how much patents pay for innovation
Your earlier comments in this article showed some semi-coherence, enough at least for me to question whether or not you're the "bob" we here at Techdirt are familiar with.

But the last line in the comment above just proves that you are the idiotic bob we know and love.
"Patents aren't worth terribly much in most cases".

Huh?
First off, all your earlier comments in this article? You were saying about how they're necessary to fund R&D. Patents are a part of the legal system, and according to you, are necessary if you want to fund R&D. To then turn around this way, is like describing how to run a restaurant, and then spitting out that the large ovens you have in the kitchen aren't worth much. You're flip-flopping.

Second, patents ARE worth a lot. They're worth a lot for all the wrong reasons, but, at the end of the day, are worth a lot. Look at Apple doing all they can with patent law to stop the sale of HTC smartphones, and the designing of the Samsung Galaxy S3 by lawyers. That is not innovation, and even if it is, its innovation in the wrong direction. Its work and effort not to please the market (which is what companies selling products/services should be concentrating on) but simply so as to avoid having to pay out big sums in court.
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Anonymous Coward, 17 May 2012 @ 3:18pm

Re: Re: TechDirt totally out of touch about how much patents pay for innovation
But then you cannot completely privatice universities and ignore their costs. The way the world is moving at the moment is towards every industry surviving despite the government and away from because of the government.

University lectors are getting fired if they are not good enough at "selling ideas" both in grabbing funding by spamming applications to gather fonds and taking patents on their students/PhDs ideas.

Being clever is such a stupid need to demand of inventers. If you can game the system, you are the true superhero of tomorrow.
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That Crazy Freetard (profile), 17 May 2012 @ 3:22pm

Re: Re: Re: TechDirt totally out of touch about how much patents pay for innovation
All well and good, except his example isn't all that extreme. Absurd, yes, but the obviousness is blinding, and that's the whole point. People patenting obvious things because the patent researchers are either incompetent or willfully ignorant.

And then incompetent judges upholding them. Truly blind leading the blind.
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Rikuo (profile), 17 May 2012 @ 3:23pm

Re: Re: Re: TechDirt totally out of touch about how much patents pay for innovation
Piracy...disrupts innovation? How? Why?

I know this has been pointed out to you bob before, but piracy (as defined through copyright/patent/trademark laws) is only about 300 or so years old. Prior to that, there was no such thing as piracy (unless you're talking about looting ships on the high seas). There was still plenty of innovation.
Take the Romans for example. Built up one of the greatest empires the world has ever seen, had many great and wonderful technologies (like running water). All that technology would have needed innovation, and this occurred in a world WITHOUT copyright/trademark/patent laws.
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TtfnJohn (profile), 17 May 2012 @ 3:26pm

Re: TechDirt totally out of touch about how much patents pay for innovation
"The fact is that Xerox funded PARC for many years on the revenues from just a few patents on the laser printer. Now that their 17-20 year term is up, everyone is free to use the information."

I hate to tell you this, bob, but software patents didn't exist when PARC was flourishing. Like everyone else in the software business PARC and it's GUI were build incrementally on what came before it. From a selfish perspective Xerox was, among other things, looking for a way to better control it's high end copiers. To make life easier for the users of copiers.

Hardware like the mouse predated PARC as did ASCII drawing which is what PARC did first before the full fledged GUI. So Steve Jobs worked around nothing though he and apple may have come close to infringing a copyright or two. Both PARC and Apple used procedural programming for their first GUI's not O-O languages which had enormous runtimes and ran almost as fast as a turtle back then.

Improvement is software and computer languages is the very definition of incremental. One innovation building on another and the next on two or three others. Like just about every innovation that's ever occurred in the history of humanity.

Well, with the exception of Kitty Litter.

Thomas Edison not only infringed on other people's patents, he was proud of it. By the time he was finished with them he'd transformed them into something that the patents did not intend or imagine.

No, no system is perfect but your idea that American innovation has accelerated as IP laws got stronger needs more than your say so. There are many studies that disagree with you. I contend that American innovation has slowed as the result of the appearance of IP maximalists such as yourself. (Being as ignorant of history as you are certianly helps too.) A place where America has out done others is to take innovation, patented or not, and work it into the general economy which has meant, post Great Depression the consumer economy and THAT is what is threatened by your and other's attitudes.

Somalia is no one's idea of a paradise, Nor is it libertarian by any stretch of the imagination. It's a blood soaked failed state and that you'd insert it into this discussion either shows how desperate you are to make your point.

All the while showing how shallow, lacking in human empathy and identification and border line racist that you are.

Oh, jackass, cancer is not a single disease it's a cluster of them with similar behaviors, most notably out of control cell growth, and multiple causes.

Keep your two bucks. I wouldn't want to lower myself to take a thing from you.
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TtfnJohn (profile), 17 May 2012 @ 3:29pm

Re: Re: Re: TechDirt totally out of touch about how much patents pay for innovation
"Plus, the US has rules that allow the government to just take the patent"

Which is what the US Government did to the Wright Brothers before entering WW1 if memory serves.
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John Fenderson (profile), 17 May 2012 @ 3:30pm

Re: Re: Re: TechDirt totally out of touch about how much patents pay for innovation
The rule of law nurtures innovation.

Not automatically. The rule of law can nurture innovation when the law is appropriate and rational.

The rule of law also can (and there is a lot of evidence that when it comes to current patent law, does) do the exact opposite.
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Anonymous Coward, 17 May 2012 @ 3:31pm

Re: Re: Re: TechDirt totally out of touch about how much patents pay for innovation
Oh, I don't know. I can't get into specifics for lack of time.

You have been reading and replying to comments on your post for the last 20 minutes. Seems like you have time enough to get into specifics.

I beleive it has more to do with your realization that had BT won the suit the Internet would be a sad shadow of what it is today.

I do know that people work around patents all of the time.

And how would one get around a patent for "a system in which multiple users, located at remote terminals, can access data stored at a central computer."?

If they can't get the patent office to kill them, they can usually come up with an even more innovative idea that gets around the claims. It happens most of the time

Would you please cite a few examples specific to the Internet during the last ten years?

You said "the US's innovation has accelerated as IP laws got stronger"

Moore's law is a far stronger arguement for the increase in innovation than stronger IP laws. How about you cite some examples where strong IP laws have increased innovation?
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John Fenderson (profile), 17 May 2012 @ 3:34pm

Re: Re: Re: TechDirt totally out of touch about how much patents pay for innovation
I do know that people work around patents all of the time.

One of the big problems, though, is that you have to know the patent exists to work around it. When it comes to software patents, this is effectively impossible. It is essentially impossible to write a nontrivial program that doesn't violate a patent, and it's impossible to know in advance whether or not part you're currently writing is the one that will cause the lawsuit.

Until the lawsuit comes, and then it's too late.
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John Fenderson (profile), 17 May 2012 @ 3:37pm

Re:
Judges should not be looking at how patents hinder technological innovation it's not their job.

I disagree. Given that the purpose of patents is specified in the constitution, it seems that whether or not a law satisfies that purpose is one of the things, if not the primary thing, that judges should be looking at.
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Anonymous Coward, 17 May 2012 @ 3:41pm

Intellectual Ventures patent troll Nathan Myrvold is tired of playing toy chef with his EZ-Bake� Oven and is now attempting to collect a full set of IP courts and judges, because all the IP lawyers were sold out when he was a child. He's still mad that his grandparents could not afford to buy him a full set of his favorite team, the Washington Wizards.

All the other kids - boys and girls - beat him up, smeared his locker with Vaseline, pushed him headfirst into the urinal all the way through high school. They paid a chimpanzee to go to the senior prom with him, but she refused when she met him and saw his child molester glasses.

So, this is his revenge. Sucks for everyone else, doesn't it?
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tqk (profile), 17 May 2012 @ 3:44pm

Re: Re: Re: TechDirt totally out of touch about how much patents pay for innovation
You can't claim that Washington is just a tool for big industry and then claim that it's not.

The patent system supports those who get in early, because it impedes new entrants from innovating. TD had an article here to that effect about a week ago.
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Geof (profile), 17 May 2012 @ 3:58pm

Innovation *has* slowed
bob writes, "the US has had a strong patent system for 200+ years. . . . the US has also lead the world in innovation in many forms for many years and . . . the US's innovation has accelerated as IP laws got stronger"

Really? Do you have a source on this? How do you measure innovation? The usual indicator is (drum roll please) number of patent filings.

Where is your accelerating invention? Since the latter half of the 20th century we've developed the birth control pill, the microprocessor, digital networking, cell phones, and stem cells. All but the last of these more than a quarter century ago. Compare that with the first half of the 20th century when countries were being electrified, the automobile, radio and film became a consumer products, and the air plane, air conditioning, plastics, sonar & radar, television, mass production, rocketry, computers, penicillin, the transistor, and the atom bomb were invented.

Patents have always been used to form cartels. Immediately following WWII, U.S. courts became very sceptical of patents, emphasizing free competition backed up by antitrust regulation. But from the 1980s on patents have been prioritized over competition. (See May & Sell, Intellectual Property Rights: A Critical History). In the past 30 years, what has that bought us? People like to tell themselves that the pace of technological change is faster than ever, but the truth is it's positively sluggish compared to a hundred years ago.

And whereas the early U.S. deliberately disregarded foreign intellectual property restrictions in order to promote the development of its own industries, today its preeminent political and economic power after Europe civilization almost suicided in Wold War II puts it in a position to impose restrictive regulation on the rest of the world. Of *course* the U.S. attracts smart people from around the world - but that doesn't mean patents are the reason for American innovation. If they have any positive effect from the U.S. point of view, it is to retard the development of competition.
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Anonymous Coward, 17 May 2012 @ 4:16pm

Re: Re: Re: TechDirt totally out of touch about how much patents pay for innovation
So as an inventor you simply need to...

Step 1: Come up with an idea.

Step 2: Hire 2,000,000 patent attorneys working full time to determine whether their idea infringes on any of the patents issued in a typical year, which no corporate entity in the world can afford to do, not to mention the garage inventor. And all the due diligence in the world still does not guarantee you won't still be sued by someone who thinks you're infringing on their vague patent on a method to make this do that.

Step 3: Take your idea and simply design around all the patents that you are aware of that you might possibly infringe on without rendering it completely useless, which as you say is usually pretty easy. After which you might still get sued for infringement, possibly for willful infringement if you've looked at the accused patents.

Step 4: Build a viable business around your watered-down designed-around idea, while still being vulnerable to patent infringement suits despite your best efforts.

Step 5: Profit!
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TtfnJohn (profile), 17 May 2012 @ 5:25pm

Re: Out of touch? But that's not their job
Judges are perfectly entitled to issue rulings in line with statue, precedent and the Common Law, the latter almost totally dealing with precedent in civil law. Even if that ruling appears to be a novelty to people not educated in civil and common law.

In this case that's what this judge did which appears to be in line with the three above as no court has overturned the ruling extending patents to software. As flawed and troublesome as that is.

Appellate courts and the legislative branch of the US Federal Government have had plenty of time to rewrite statue law to nullify the rulings that created patents on software and so called business methods but they haven't.

As bad or worse, the same court he was a member of ruled that applicants didn't have to come up with a working model or, at least, details of what the working model would be. (Which doesn't always mean code in glorious MS Basic, but that would have been a distinct improvement over the situation as it now exists.)

In essence they made it possible with that to patent vapour-ware. And a ton of it has been patented.

Now, if the bobs of the world would explain to me how patenting vapour-ware helps innovation as it blocks people from doing that the vapour-ware claims to do when not a single line of code has been written and the patent is held by a non-practicing entity who have no intention to bring the "invention" to market it is often used for suing others who do have an on the market product which they allege violates the vapour.

And, if the bob's of the world would tell me about the huge R&D costs of vapour-ware. Then compare that to the costs incurred by the practicing entity who, they claim, unknowingly violated their patent on their world changing vapour-ware. One innovated while the other sat on a nice set of legalese that described what didn't exist and would have never existed. Put another way, vapour-ware is a legal fiction that now has the power of law behind it as if it were real.

For all of this mess, and the 30 years or so the courts and the US Federal legislature have had to clean this up none of them have. The judges involved, though, were, like it or not well within their rights to rule as they did.

It's very hard to have a legislature overrule a court decision when those who stand to profit the most from the decision are also big donors and when the issue doesn't seem to engage many people.

If Congress Critters had done what the court did, believe me, it would be far far worse than anything this too specialized court did in its rulings.

Sadly, it's almost impossible to get a court ruling overturned at the best of times for utter and absolute stupidity which is how these look to everyone but bob now.

Then again, we're getting familiar at the misfiring of bob's synapses and ability to read and understand things he doesn't like. He can't.
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TtfnJohn (profile), 17 May 2012 @ 5:34pm

Re:
One day there will be meetings of Patents Anonymous when the CEOs of such companies will admit their addiction to patents and that it was at least part of the reason their company crashed and burned when they all expired.

Of the usual baddies Big Pharma is the most patent dependent with second place to the patent trolls attacking the software industry.

And maybe our friend bob. He seems dependent on them too.
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Anonymous Coward, 17 May 2012 @ 5:42pm

Re: Innovation *has* slowed
Geof (@53, above) is exactly right in noting that some attempts to measure innovation do so by complex number-crunching on counts of patents. In that imagined world increasing the number of patents typically will by definition increase "innovation." It is, however, a stupid metric. But if a judge is working within that model, it can be hard to see alternatives.
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6, 17 May 2012 @ 6:00pm

Mike you are quite right about Michel and the rest of the CAFC having a somewhat distorted worldview. They even know they have it. Or at least Michel does. I heard him speak and talked to him afterwards. He indeed recognized that they have a "cloistered" worldview due to their position.

Michel is currently out in the world trying to gather experience on these matters and at the same time advocating for the patent system.

I have pledged him my sword if he should so need it as he is a reasonable man.

And btw, there is a way for software companies to "opt out" in a manner of speaking. Get a case to the USSC and you'll see how quickly they'll be opted out.
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abc gum, 17 May 2012 @ 6:09pm

Wow - the sock puppets must've renewed their contracts.
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illuminaut, 17 May 2012 @ 7:02pm

Re: Re: TechDirt totally out of touch about how much patents pay for innovation
Because as someone with a personal stake in it, his mind is already made up and evidence that don't support that view is merely a nuisance.
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Lawrence D'Oliveiro, 17 May 2012 @ 8:34pm

Re: The fact is that research and development cost money.
No they don�t. Product development, manufacturing, promotion and distribution cost money. But you don�t get patents for that.

I saw a comparison a few years ago between Apple and Dell. You know, Apple, the company that has this reputation for amazing, unique, revolutionary products, versus Dell, which is primarily known as a volume box-mover. The proportion of revenue that Apple spent on R&D was half that of Dell.
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JMT (profile), 17 May 2012 @ 8:46pm

Re: Re: Re: Re: TechDirt totally out of touch about how much patents pay for innovation
"Piracy...disrupts innovation? How? Why? "

Well if it's real piracy, you might be dead, which is disruptive.
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Anonymous Coward, 17 May 2012 @ 9:49pm

Re: Re: TechDirt totally out of touch about how much patents pay for innovation
"...stacks of evidence..."

You mean the ones that even the authors admit merely show correlations?
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Anonymous Coward, 17 May 2012 @ 9:55pm

Re: Re: Re: Re: TechDirt totally out of touch about how much patents pay for innovation
Since you appear to believe that a critical fault in the system is widespread incompetence at both the administrative and judicial level, perhaps you should try to either seek employment with the USPTO or appointment to the judiciary in order to show them how is should be done.

The easiest thing in the world to do is level criticism when you have no substantive knowledge of the law and its administration.
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That Crazy Freetard (profile), 17 May 2012 @ 10:00pm

Re: Re: Re: Re: Re: TechDirt totally out of touch about how much patents pay for innovation
Perhaps I shall.

Then there will be at least one competent technologist in their house.

After all, patents exist to protect ideas which are non-obvious to someone who is competent in its respective field.
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Anonymous Coward, 18 May 2012 @ 12:02am

Root Cause
More patents = more job security for the patent judges.
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Anonymous Coward, 18 May 2012 @ 12:26am

Re: Re: TechDirt totally out of touch about how much patents pay for innovation
" Why do you ignore the stacks of evidence that show in a very detailed manner how the patent system hinders the pace of innovation?"

Wouldn't that mostly be from the stand point of under developed countries that benefit from the advances done by others? It seems that many reports are written from a "global benefit" rather than looking at the benefits of the richer countries only.
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Mike Masnick (profile), 18 May 2012 @ 1:03am

Re: Re: Re: TechDirt totally out of touch about how much patents pay for innovation
Wouldn't that mostly be from the stand point of under developed countries that benefit from the advances done by others?

No. There are lots of studies about patents hindering innovation in the developed world as well. In fact, the Bessen & Meurer book lists over a dozen such studies
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The eejit (profile), 18 May 2012 @ 1:30am

Re: Re: Re: Re: Re: TechDirt totally out of touch about how much patents pay for innovation
No, that's just innovating on the population.

There's a patent for that, I think.

[/bad-taste-bear]
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Anonymous Coward, 18 May 2012 @ 3:57am

Re: Re: Re: TechDirt totally out of touch about how much patents pay for innovation
Umm... the university patent mongering? Yeah, that didn't work. That was a huge net loss for them. Someone just wrote about that, here, too! Sad you missed it.
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Anonymous Coward, 18 May 2012 @ 4:11am

Hey...
Where's that patent guy with the huge, obnoxious sig? Haven't heard from him in a while, and this seems to be precisely his sort of post.
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staff, 18 May 2012 @ 7:02am

more dissembling
"How Much Patents Hinder Technology Innovation"

The dissembling continues. Patents only hinder innovation theft, not innovation. You and Lee write like large infringer paid puppets.

�Patent troll�

Call it what you will...patent hoarder, patent troll, non-practicing entity, shell company, etc. It all means one thing: �we�re using your invention and we�re not going to pay or stop�. This is just dissembling by large infringers and their paid puppets to kill any inventor support system. It is purely about legalizing theft. The fact is, many of the large multinationals who defame inventors in this way themselves make no products in the US or create any American jobs and it is their continued blatant theft which makes it impossible for the true creators to do so.

Prior to eBay v Mercexchange, small entities had a viable chance at commercializing their inventions. If the defendant was found guilty, an injunction was most always issued. Then the inventor small entity could enjoy the exclusive use of his invention in commercializing it. Unfortunately, injunctions are often no longer available to small entity inventors because of the Supreme Court decision so we have no fair chance to compete with much larger entities who are now free to use our inventions. Essentially, large infringers now have your gun and all the bullets. Worse yet, inability to commercialize means those same small entities will not be hiring new employees to roll out their products and services. And now some of those same parties who killed injunctions for small entities and thus blocked their chance at commercializing now complain that small entity inventors are not commercializing. They created the problem and now they want to blame small entities for it. What dissembling! If you don�t like this state of affairs (your unemployment is running out), tell your Congress member. Then maybe we can get some sense back in the patent system with injunctions fully enforceable on all infringers by all inventors, large and small.

Those wishing to help fight big business giveaways should contact us as below and join the fight as we are building a network of inventors and other stakeholders to lobby Congress to restore property rights for all patent owners -large and small.

For the truth about trolls, please see http://truereform.piausa.org/default.html#pt.
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Lord Binky, 18 May 2012 @ 10:30am

I'm All for an Opt-Out Clause
Let us make the whole patent system a Permanent Opt-Out. If your company decides to file as an Opt-Out participant, You can legally ignore ALL patent filings, while also being unable to ever file for, and relenquish all owned patents to public domain. Sales of more than 25% of your held patents prevent your company from participating in the Opt-Out clause until ALL of the sold patents expire.

We then have a choice on how to deal with all patententable materials generated by the opt-out group. We can consider all new patentable materials as "prior art" for the remaining patent communities such that they can never be patented since it was developed in the Opt-Out group, OR we could all a free for all by allowing all patentable material to be patented by the remaining patent group regardless of it's origin, providing that Opt-out applicants still cannot hold patents.
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Anonymous Coward, 22 May 2012 @ 12:57am

Re: TechDirt totally out of touch about how much patents pay for innovation
The reason why Somalia is not a powerhouse of innovation is because it has no functioning justice system or education system. Anybody who is so foolish as to show up in Somalia with money, will be robbed straight away, and quite possibly killed as well.

Suppose by some miracle someone could get a functioning tech company started in Somalia (we are in deep fantasy and denial already). What happens then? Communications are non-existent. Forget about any decent internet service. Getting supplies of anything is a nightmare. Skilled labour is non-existent. They do not speak English. There are continually armed hoodlums at the gates desperately attempting to do the robbery.

That is why Somalia does not have a functioning economy, let alone a tech sector. It is nothing to do with the existence or non-existence of a patent system.
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Anonymous Coward, 15 Apr 2014 @ 7:43pm

http://www.ipwatchdog.com/2013/10/16/judge-michel-patent-reform-bills-would-weaken-patent-system/id= 45709/

Michel on his A-Game.
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