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A Couple Videos About Our Crazy Patent System

from the you-might-enjoy... dept

Wed, Dec 12th 2012 8:01pm — Mike Masnick

We're hearing more and more talk about how broken the patent system is, and recently came across a pair of videos we figured some of you might enjoy. The first is a comedic riff on Apple's recent page turn design patent, leading Ron Charles to post an amusing video of how Apple might explain its patenting of "letters": There are some good lines in there. "Everything we've done, is designed to be very capable, but also familiar. So our goal, was to take all the amazing things that people like to do... and own them."

On a slightly more serious note, economist Alex Tabarrok, has put together a video arguing for the end of software patents: It's not a bad video, though I think the analysis is a bit overly simplistic, in that it kicks off with the idea that pharma patents make sense. The more you dig into the details of pharma patents, the more you realize that's not true either. However, even granting that, the argument he makes is the commonly seen economics argument that, at the very least, things like pharma and software display such different economic characteristics that it's silly to use the same patent system for both. Specifically, the sunk costs of innovation for software tend to be relatively low, so the protection a patent grants might not be useful. It also notes how patents can impede innovation. One thing I'm happy it includes is a note about how you get less innovation when you don't have competitors pushing you to keep innovating. That's a point that often gets missed in these debates.

Either way, I figured folks might enjoy both of these videos.

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Filed Under: patents, software patents, videos

29 Comments

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jameshogg (profile), 12 Dec 2012 @ 8:22pm

Aren't patents just indirect forms of taxation, where the money goes straight to the inventors?

If so, an independent, non-profit (government body?) organisation should decide if inventors ought to be rewarded for what they find, and how much.

This way a) the inventors cannot discriminate against who gets to clone the invention and still get rewards, and b) the scientific process does not get distorted by politics, as only those actually cloning the invention will get taxed whereas those who choose not to will not get taxed, on top of innovators being free to carry out R and D without needing the permission of voters and getting the right share of profit (if it indeed does make profit in the end - if it does not, a flat tax across everybody may be more suited since this category of R and D would just be general scientific research).

Also, I think this clip from House MD is worth posting. You all remember when House completely destroyed Vogler, right?

http://www.youtube.com/watch?v=wSlMthRW5AU
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Anonymous Coward, 12 Dec 2012 @ 8:26pm

Hahahahha.... you gave up Voltage films for these?
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out_of_the_blue, 12 Dec 2012 @ 8:42pm

Fine, make some distinctions.
"pharma and software display such different economic characteristics that it's silly to use the same patent system for both" -- Similarly, I'd find it far better to forbid corporations from owning patents, ONLY "natural persons", and on the point of two-tiers: apply a means test so that no one with "net worth" above x amount could even get a patent. After some (low) point The Rich don't need and shouldn't have gov't granted monopolies, they're already SET for life -- often for several hundred lifetimes.

Now, Mike, there are two original (far as I know) suggestions, totally do-able in practical politics, well-based in essential American fairness, on topic, and yet you'll ignore them, and your fanboy-trolls will jump in with sheer ad hom, NOT discuss them or put forth their own suggestions. And yet I soldier on.
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Shmerl, 12 Dec 2012 @ 9:05pm

Microsoft has beaten them to it. They already patented ones and zeroes which encode all letters as well ;)

http://www.theonion.com/articles/microsoft-patents-ones-zeroes,599/
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Anonymous Coward, 12 Dec 2012 @ 9:49pm

I appreciate all forms of communication for education the populous on issues, including patent law. Simplistic and misleading (many times downright inaccurate) are another matter entirely. Unfortunately, neither of these fall within the former.

While I have come to expect examples such as these on this site, it does not excuse deceptive communications and their republication.
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artp (profile), 12 Dec 2012 @ 11:05pm

One data point on why Pharma patents don't make sense
The Big Pharma companies don't do all their own research, or pay their own development costs.

Here is a comment I posted at Groklaw:
http://www.groklaw.net/comment.php?mode=display&sid=20121129053154687&title=The%20 Push%20for%20Patents&type=article&order=&hideanonymous=0&pid=1018251#c1018631

An excerpt:

The Push for Patents
http://www.desmoinesregister.com/apps/pbcs.dll/article?AID=2012311230028

On November 23, the Des Moines Register had a front page article entitled The Push for Patents, subtitled "Royalties Cushion Budget Cuts". And we here in Iowa know that when you elect Terry Branstad, that budget cuts are coming to EVERYONE!

So it is a timely and relevant article here in Iowa, and I'm sure the natives took notice, although I was incommunicado for the next 7 days. Here's a summary.

The University of Iowa took a $37 million dollar cut in royalties from patents from 2009 to 2011, from $43 to $6 million due to one expired drug patent based on the cytomegalovirus promoter. [Note: I have no idea what I just typed.]

The U of Minnesota dropped $75 million in royalties over the same period. An expired anti-AIDS drug accounted for $10 million of that loss last year. Northwestern leads the nation with $191 million in royalties in 2011, mostly from Lyrica, an anti-seizure drug that is also being used for fibromyalgia.

It also notes that patent royalty income to universities increased 4% each year from 2009, so the losers lose big when a popular patent expires.
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artp (profile), 12 Dec 2012 @ 11:09pm

Re: Fine, make some distinctions.
Several people have proposed the first on Groklaw, including me. To this, I would add that patents should be non-transferable, and no exclusive licenses may be granted.

People invent things. Corporations do not invent things.

I like your second idea. Doesn't stand a snowball's chance in hell of being enacted.
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Anonymous Coward, 12 Dec 2012 @ 11:16pm

Re:
Taxation yes, it's a tax on your freedom to mold your property into the shape you wish.
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Beech, 13 Dec 2012 @ 1:16am

Re:
Perhaps an example of something in either of the videos you found to be misleading?
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Beech, 13 Dec 2012 @ 1:21am

responses
So, i would have to say Hypothetical Apple made a huge misstep here. 26 letters? Come on! apple is known for simplifying things, making them easier and better. And the English language has an already redundant letter, C. Every sound C makes can be emulated either by K or S, so why keep it around?

Also, on first glance i thought the second video was titled "End Software Patents w/ Alex Trebek." Which would have been a lot more awesome.
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Anonymous Coward, 13 Dec 2012 @ 3:09am

Re: Re: Fine, make some distinctions.
So an R&D team cannot invent anything, just one member? Would really discourage team-work and sharing of ideas.
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Anonymous Coward, 13 Dec 2012 @ 3:34am

Re:
It looks pretty accurate to me, simplistic without all the shades of gray but accurate none the less.
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Anonymous Coward, 13 Dec 2012 @ 3:37am

Re: Re:
You don't own ideas and should never have the ability to stop anybody from implementing their own even if it is the same as yours period.

There may have been a time that we needed something like granted monopolies to protect some inside society that time is gone, no longer those tools make sense in the modern world.

A world were everybody has a playing field that is rapidly approaching something akin to "level".
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Anonymous Coward, 13 Dec 2012 @ 3:51am

Re: One data point on why Pharma patents don't make sense
It seems that being dependent on something that will go away eventually and can't be sustained indefinitely is not a good idea.

There are better ways of course.

Maybe open development where everybody contributes with resources is an option?
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Michael, 13 Dec 2012 @ 5:01am

Re:
You cannot do much with those 1's and 0's without this guys patent on math...

http://www.techdirt.com/articles/20121205/02440521234/remember-when-you-couldnt-patent-ma th-good-times.shtml
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Michael, 13 Dec 2012 @ 5:03am

Re: responses
You have to submit all of your patent applications in the form of a question.
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silverscarcat (profile), 13 Dec 2012 @ 5:15am

Re:
These ones were more entertaining.
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jameshogg (profile), 13 Dec 2012 @ 6:55am

Re: Re:
Well what you have to remember is that taxes are unavoidable. And there are specific taxes aimed at certain kinds of property such as alcohol, air travel, etc - all for reasons that may be necessary such as a degree of regulation on drugs and attempts to slow the process of global warming. I know I often speak like a Libertarian on here, but I think when it comes to issues of what should and should not be taxed a more Socialist perspective is needed. Taxes have to be a necessity, and one important thing that would be a lot more justified in falling into a taxation system is the development of scientific research - we all have a fair obligation to contribute to it.

But of course, taxes would only be aimed at those who sell on the inventions to others and not those who build them in their own homes. The thing about patents is that we are dealing with physically scarce goods unlike copyright... so it is not like you can left-click and copy an invention 10,000 times with practically no cost. It takes time and resources.

The development of scientific research has different philosophies than creativity and copyright. We are dealing with an issue that is a lot more common and vital amongst humanity. Patents make the mistake of playing the "intellectual property" card when just like copyright we are dealing with services, not goods. Patents also have a danger of falling for degrees of privatisation and distortion, a point proven in the patent trolling nonsense. This calls for a degree of accountability in what science deserves to be rewarded, and I think an independent regulator would also be able to prevent pharmaceuticals from cheating the system by adding antacids to current drugs and calling them new, just to patent all over again. Scientific reason when brought to the table more productively like this will not allow bullshit like that to slip under the radar.

It's harder to imagine how crowdfunding could be a substitute for scientific R and D since profits are often accumulated over time, and not just in one payment. Besides, my idea of taxing those who duplicate the inventions IS accumulative crowdfunding, basically.

Also, if global treaties were put forward around this idea (since scientific development is unilateral in this respect) then taxes would be lowered since more people are contributing - supply and demand, ironically enough!

Here is another way of looking at it: education is often a social issue, when it comes to primary and secondary especially. And where I live, Scotland, it is also a social issue for tertiary education (the government pays our University tuition fees for us). The development of University education is becoming more globalised with online courses no doubt, but I reckon that there is still a universal sense of saying that young people have the right to education that is not discriminated based on their wealth and class.

I reckon this principle has to apply to scientific development. It should not be privatised, and neither should education.
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Valkor, 13 Dec 2012 @ 6:59am

Re: Re:
You're conflating taxation with monopoly. They are both forces of a non-free market, but they're different.
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jameshogg (profile), 13 Dec 2012 @ 7:08am

Re: Re: Re:
Correction: I really ought to have said that the funding of scientific development should not be privatised. You should still have the freedom to research whatever you want, and just go to the independent body to apply for funding, an application that would be subject to scrutiny. If what you discover becomes used by pharmaceuticals in the mainstream market, specific manufacturing taxes are called for. If it is more general science that cannot quite fit into a specific market, it should be funded from general income tax.
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Anonymous Coward, 13 Dec 2012 @ 8:13am

Re: Re:
In the first video, the individual parroting Apple's recently issued design patent as covering the concept of "page turning". This is not what a design patent does, and Apple's design patent most certainly does not preclude others from "page turning" as a concept. It is directed to a "moving icon" having a specific shape and detailed characteristics. Did Apple really need to spend money to secure this patent because it is critical to its position in the market? Who knows? Certainly not me. Does this design patent hinder "innovation"? Hardly, but then this would not make for a good video.

In the second video it makes zero attempt to mention what it means by "software patents". It suggests that the investment to create inventions for which such patents may be sought is universally minimal. I can say without the slightest hesitation that many, many times it takes the time of a team of numerous PhD holding contributors to conceive, test, and implement such an invention, and that the cost for such activities oftentimes runs into the millions of dollars. Funds allocated under contracts with DARPA and other USG agencies, as well as Internal Research and Development costs borne by companies time and time again have shown me that these are non-trivial, inexpensive endeavors. Quite the opposite. There are several other simplistic and inaccurate statements made in this video, but to review them in detail would make this comment interminably long and likely boring to the reader who is unfamiliar with the process.
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artp (profile), 13 Dec 2012 @ 9:13am

Re: Re: Re: Fine, make some distinctions.
As I recall from being on corporate teams, the team is made up of individuals, not corporations. It is common to have several names on a patent. The trouble is that the patent is then owned by the corporation as directed by those papers that you had to sign if you wanted to get a paycheck for your work.

Clear now?
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John Fenderson (profile), 13 Dec 2012 @ 9:33am

Re: Re:
Taxation yes, it's a tax on your freedom to mold your property into the shape you wish.

Actually, no. You are free to mold your property into any shape you wish regardless of patents. Patents just restrict your ability to sell that property your molded.

Also, it's not a tax in any sense of the word. It's a government-granted limited monopoly.
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John Fenderson (profile), 13 Dec 2012 @ 9:42am

Re: Re: Re:
Int he first video, you have a point. That, like the rounded corners nonsense, is a design patent, which isn't really a patent in the sense people think of them. It's more like a mutant form of copyright.

Regarding software patents, you have a point, but the fault isn't with the video as such. It's that there is no clear consensus on what "software" actually is. Whatever it is, though, the amount of effort it takes to create software has (or should have) exactly zero bearing on whether or not it should qualify for a patent.

Your criticism seems to be that the videos are oversimplifying the issues. That is true -- but it is literally impossible to explain patent issues to normal human beings without oversimplifying them. That's one of the main indicators that the patent system is in a state of extreme decay and needs to be completely rethought.

I don't fault the videos for this. They do get across the essential points accurately, and it's important for people to grasp the main features of the problem.

Funds allocated under contracts with DARPA and other USG agencies

If government money is paying for the development, then no patent should be allowed, software or not. Not really on topic, but I couldn't resist getting my opinion out there.
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Anonymous Coward, 13 Dec 2012 @ 11:10am

Re: Re: Re: Re:
The "rounded corners" was just one of several elements that comprised the claimed design. To potentially infringe one would have to incorporate into their product all of the several elements, and not just select ones like "rounded corners". Design patents have a more limited term than utility patents, and significantly different requirements for establishing infringement. In the case of design patents the test is essentially the one used with respect to trademark infringement, i.e., an ordinary consumer exercizing ordinary care.

I agree that there is no clear definition of what comprises a "software" patent, so lumping all patents that involve software to some degree can be very misleading.

It is not particularly difficult to explain patents to lay persons if you are conversant in what a patent comprises. It is when "lay" explains to "lay" that things start to go awry. I will readily admit, however, that many of the patents held up a really, really "bad" patents are decidedly so. Are they the majority? Experience informs me this is not at all the case.

Re patents under government contracts, or any other contracts for that matter, patent rights in all cases go to the actual inventors, and not to the financier. Of course, they can subsequently be transferred by contract, but in the absence of a contract a financier is SOL. This stands in clear contrast to copyright law where a "work for hire" produces the opposite result.

It is also important to realize that in most cases under government contracts an invention has been created prior to the contract, with the contract merely being the vehicle by which to adapt an invention to the particular needs of the government agency. For inventions actually invented in their totality under a government contract (conceived and first actually reduced to practice), longstanding experience demonstrated that commercialization of the invention was a rarity given that commercial entities would still be required to make substantial investments for a product incorporating the investment to be made market-ready. The Bayh-Dole Act, love it or hate it, was crafted to provide commercial market incentives. I do agree on one thing, however. I subscribe to the position that an invention created by a government employee or officer in the course of their ordinary duties should not be patentable, as is the case under copyright law with works created by officers and employees in the course of their ordinary duties.
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Anonymous Coward, 13 Dec 2012 @ 1:56pm

�. �� , �� .
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Jeff_Vader_runs_the_Deathstar? (profile), 13 Dec 2012 @ 2:48pm

Re: Re: Re: Fine, make some distinctions.
Gosh, that's a great point since teams are never made up of natural persons.

More importantly, even if they were there's no way you could assign a patent to multiple names. (I mean, for heaven's sake there's only one small section on the form)
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Graham, 15 Dec 2012 @ 1:32pm

Newton, On The Shoulders Of Giants
In fact, the guy upon whose excellent astronomical observations Newton based his orbital calculations (Flamsteed?) was quite a short man, so Newton was taking an unkind jab at him.
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Anonymous Coward, 17 Dec 2012 @ 7:47am

Re: Re: Re: Re: Fine, make some distinctions.
Not really. Corporations are just groups of people, just like 'teams.' The crux of your adjustment relies on a distinction that is without difference.
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