As Congress Explore New Awful Copyright Plans, Maximalists Look To Rewrite The History Of SOPA/PIPA

from the say-what-now? dept

As we noted, there's an effort underway, lead by Senator Thom Tillis' office, to rewrite copyright laws in a manner that is even "friendlier" to Hollywood -- which is kind of insane, given just how far the laws have been bent to favor Hollywood over the years, and against the public. Of course, for the past decade or so, significant updates to copyright law have mostly been a kind of third rail issue in Congress (with a few notable exceptions), as the memory of the SOPA/PIPA protests still lingers. However, with this new approach brewing, it seems that some wish to rewrite that history.

Gene Quinn from IP Watchdog -- a site that tends to support an extreme maximalist viewpoint mostly on patents, but sometimes on copyright as well -- has an amazingly weird post, supporting a more maximalist copyright reform, playing off a new paper from ITIF. If you don't recall, ITIF wrote the original paper that became SOPA. It was that think tank's policy proposal that was molded into the awful bill that would have fundamentally changed how the internet worked. So, you should already be somewhat skeptical of ITIF's "policy recommendations" on copyright -- starting with the very idea that "digital piracy" is a "scourge" that requires laws to stop.

As we've shown in great detail using the industry's own "piracy" numbers, changes to the law to ratchet up copyright enforcement have failed to decrease piracy. What does decrease piracy is putting in place laws that enable more innovation and experimentation around new licensed services with a variety of business models.

But, not surprisingly, that's not the focus of any reform effort. Still, what's most amazing in Quinn's piece is his rather insane attempt to rewrite the history of SOPA/PIPA. If you weren't around when it happened nearly a decade ago, (Gene was, so he has no excuse), a wide coalition of people all got together to point out how dangerous the law would be for a functioning internet, and how it would stifle speech, harm innovation, and (worst of all) break certain technical elements being used to make the internet more secure -- all so Hollywood could continue to tilt at windmills and pretend that "piracy" was being attacked. As more and more people (with very diverse ideological backgrounds) all came to realize how dangerous SOPA/PIPA was, they organized a day of protest on the internet, which set phones ringing throughout Congress, urging elected officials to rethink that plan. One by one, Senators and Representatives dropped their support of the bill, and it never moved forward.

That's not how Gene Quinn describes it however. In his version "hacker groups" (?!?) threatened to shut down the internet (?!?!?!?!?) if SOPA passed:

About a decade ago, Congress was poised to do something about rampant copyright infringement on the Internet. They were ready to take a bold step that would protect content creators. These bills were met with threats from hacker groups to take down the Internet if they were enacted, and Congress caved.

Again, that's not even remotely accurate. It was pointed out that implementing SOPA/PIPA would have made the internet less secure by breaking the DNS system, and that could lead to more attacks, but that's... not what Quinn is saying. And of course, when he presents something so blatantly incorrect, and so devoid of historical accuracy, it should make you call into question basically everything else he's saying regarding this particular topic.

Filed Under: congress, gene quinn, pipa, rewriting history, safe harbors, sopa, thom tillis

Who The Hell Is Actually In Charge Of The US Patent And Trademark Office?

from the perhaps-no-one dept

I recognize that many (especially regular Techdirt readers) will assume from the title above that the question is a rhetorical one in response to the latest craziness around a stupid trademark or awful patent. But, no, we mean that literally. You see, right before the Trump inauguration, it was widely reported that Michelle Lee would stay on as the Director of the US Patent and Trademark Office. That was undeniably good news. For all the complaints we have about the USPTO, Lee has done a fairly amazing job running that office, and seems to be one of the first Patent Office directors who actually understands how patents can do serious harm to innovation. Keeping her on would be a really good sign. After seeing the stories claiming that she was staying, we'd mostly moved on. However, Politico reporter Nancy Scola sent me down something of a rabbit hole after tweeting that it's basically impossible to know who's in charge of the Patent Office right now.

The USPTO's site still says it's Lee:

That seems like that should be that. However, there are conspiracy theories afoot -- mainly being discussed by Gene Quinn over at IP Watchdog. Gene and I disagree about basically everything as it relates to patents, and he's got a history of insulting me, so I have every reason to basically ignore him. But, on this, he may have a point. And the questions about whether or not Lee is actually in charge are also being asked by a much more respectable patent website, Patently-O.

The issue started when Quinn noticed that, despite the claims that Lee was staying on, the Commerce Department (which the USPTO is a part of) leadership page says the role is "vacant." Here's the latest screenshot I took:

As for the PTO's own website, Quinn rightly points out that its leadership page still lists out a number of other individuals who have announced resignations and are no longer there, but whose profiles are still on the website. The Commerce Department seems to be refusing to comment to anyone who asks (I've sent in my own question) and it's quite unclear if Michelle Lee really is the director.

If you look through the fairly long list of articles by Quinn on the subject, it's quite clear that he (as someone who is not a fan of Lee) is hoping that she's been pushed out, and is trying to drum up controversy over the possibility that she might remain. But the lack of any clarity from anyone... is bizarre. Quinn's most recent post on the subject notes that while no one seems willing to say who's running things, Lee "continues to be seen" in the building. That would certainly support the theory that she's staying. But... she's also cancelled a bunch of speaking engagements, and no one at the USPTO or Commerce Dept. seems willing to say anything. Also, in an earlier report, Quinn noted that he'd been told, unofficially, that Drew Hirshfeld is "Acting Director," implying Lee had left. But the whole thing seems to be... unclear:

Who is running the United States Patent and Trademark Office? That straightforward question shouldn’t be imponderable, but it seems that the Trump Administration has chosen to sequester the Director as if he or she has gone into the witness protection program. Indeed, we seem no closer to an answer to who is running the USPTO today than we were 18 days ago. Although sources tell me that Michelle Lee continues to be seen on the 10th floor of the Madison Building, which is where the Director’s Office is located.

As we begin the third week of the Trump Administration I cannot tell you with any definitive certainty who is Director, or if there is an Acting Director, or if the Commissioner for Patents is merely carrying out the responsibilities of Director without being named Acting Director, which has been the case at least once in the past.

Yes, the Trump transition has been a bit of a mess, but this seems particularly bizarre. There's a decent chance that the problem is just that something is afoot and it just hasn't been discussed publicly yet, so the Commerce Dept. and PTO are staying silent. But, as Quinn notes, there are actual, real implications of not having anyone as PTO director:

Indeed, there are many things that the law leaves to the discretion of the Director of the USPTO. While some of those decisions have been delegated out to subordinate officials within the Office, some do still remain only with the Director. For example, if you are a patent owner who believes you are being harassed by repeated post grant challenges the Director alone has the authority to provide a protective remedy. Without knowing who is Director how can patent owners appropriately seek to obtain the assistance of the Director?

Another thing that will soon become problematic is with respect to lawsuits involving the USPTO. Who should be the named party? Generally, the Director or Acting Director of the agency is named as the party on behalf of the agency. While it seems a small point, properly identifying the party is no minor matter in federal court. Are patent applicants supposed to style their appeals to the Federal Circuit as Applicant v. John or Jane Doe, Director of the U.S. Patent and Trademark Office?

In his most recent post, Quinn further wonders if those of us who tend to think certain patents shouldn't have been issued could even use this as a way to claim patents issued recently are invalid:

Sources tell me that the USPTO was prepared last week to issue patents with the signature of Drew Hirshfeld, who is the Commissioner of Patents and seems to be currently in the position of Acting Director. At the last minute, however, a decision was made to reverted back to Michelle Lee’s signature. This creates several significant problems.

First, if Lee is not currently the Director patents that are being issued with her signature are being issued in violation of §153. If we know anything about patent litigators it is that they raise every challenge possible, and it is only a matter of time before the provenance of patents issued during these first weeks and months of the Trump Administration are challenged as being invalid.

These are not unsolvable issues, once things are clarified, but it still... very, very strange. I doubt that challenging the validity of the patents would have much of a chance, but it is interesting. And while I desperately hope that Lee remains, and Quinn desperately hopes that she is forced out, I think (for once!) Quinn and I agree: whatever is happening, and whoever is in charge, should be disclosed publicly.

Filed Under: commerce department, gene quinn, michelle lee, patents, trump administration, uspto

Remember That Report About WIPO Misconduct That WIPO Tried To Censor Through Bullying? It's Been Leaked

from the of-course-it-would-eventually-get-out dept

Last fall, we wrote about claims that World Intellectual Property Office (WIPO) director Francis Gurry was involved in some quite incredible practices in secretly obtaining DNA samples from WIPO employees, to try to sniff out who had sent certain letters. This came after some other scandals involving ignoring UN sanctions (even though WIPO is an UN organization) against sending computers to both North Korea and Iran.

Earlier this year, Gurry was re-nominated for the position. Soon after that, it was reported that one of Gurry's top deputies, James Pooley, had filed a document accusing Gurry of misconduct over the DNA situation and some other things. But what was really crazy was that when patent blogger Gene Quinn posted a copy of Pooley's document along with his own analysis of it, WIPO's top lawyer threatened Quinn with criminal charges for merely reporting on a document filed by a top WIPO official! Quinn, who was recovering from a medical procedure at the time and didn't want to deal with the hassle of a fight, decided to take down the post and the document.

Last week, the Register reposted the document along with an article declaring it an "exclusive." That's a bit debatable, given that Quinn clearly had it before them (something the Register doesn't even bother to acknowledge). The Register also fails to acknowledge that the basics of the DNA scandal were known months ago. Still, it's good to see the document finally be brought to light, and we'll see if WIPO now goes after The Register like it did Quinn. We've also posted the document below.

The full report goes beyond just the DNA scandal, to making a direct claim of corruption, concerning a non-competitive procurement process, that resulted in WIPO doing a deal with an Australian company run by an acquaintance of Gurry. According to Pooley's letter, the firm, Argo Pacific, run by Gurry's friend Paul Twomey, put in a bid that was much more expensive than others. Upon realizing this, Gurry directed the committee evaluating the proposals to change the evaluation formula, such that price was much less important, leading Argo to "win." Even then, Argo failed to beat the competition, so the letter alleges that Gurry totally removed the process from the competitive bidding system, and awarded it directly to Argo Pacific.

To be fair, none of this is proven -- though the stories of problems within WIPO have been around for a while. Furthermore, some have suggested that this is actually a coordinated attack to smear Gurry for not being as willing to push US maximalist patent and copyright policies (and being more willing to listen to developing nations). Still, the allegations are certainly serious and should be investigated. The fact that WIPO has tried to completely stifle and censor a blogger discussing this filed report by a WIPO official with bogus threats of criminal prosecution only make it that much more worthy of ensuring the situation is fully investigated. As I noted, when we last wrote about it, the attempt to intimidate, threaten and silence a blogger seems even more serious than the other allegations against Gurry.

Meanwhile, The Register does have more details about what has happened since this complaint was submitted -- and it continues to raise questions about how WIPO is managed:

The US State Department and South Korean officials have both asked for an independent investigation into the allegations, but instead WIPO appointed its own committee to decide if further action was required. This committee was allegedly implicated in the original, secret DNA testing of senior staff.

In May this year WIPO's "Independent Advisory and Oversight Committee" (IAOC) considered whether there was a conflict of interest in handing the investigation to the organisation's own Internal Audit and Oversight Division (IAOD).

In early May, WIPO's legal counsel advised:

“The director of the IAOD deemed himself to have a conflict of interest, due to the fact that the Report refers to him (together with a number of other WIPO officials) in the DNA allegations. For this reason he recused himself from considering the report.”

But by the end of May, the IAOD, and its director Thierry Rajaobelina, apparently decided it was quite capable of carrying out a preliminary investigation without any fear of a conflict of interest.

Folks within WIPO are apparently not pleased with this and there has been continued back and forth over whether or not there will be a truly independent investigation of Gurry and his activities as it relates to the DNA samples.

No matter what, this is clearly an issue of public interest, and we certainly hope that WIPO will not stoop so low as to try to censor other members of the press, as it did with Quinn.

Filed Under: censorship, corruption, dna samples, francis gurry, gene quinn, james pooley, surveillance, un, wipo

WIPO Boss Reappointed Until 2020, Despite Bogus Legal Threat Against Blogger

from the wipo-credibility-gone dept

WIPO boss Francis Gurry's leadership has been full of some really questionable controversies, including potentially violating UN sanctions by sending computers to North Korea and Iran, as well as having people break into the offices of some of his own employees to secretly collect DNA samples. Still, to me, perhaps most troubling was his attempt last month to stifle public debate and commentary about the DNA controversy by sending an intimidating letter to blogger Gene Quinn, threatening him with the possibility of criminal prosecution in Switzerland, for merely publishing a "report of misconduct" filed about Gurry by one of his deputies, James Pooley.

Given all the controversy -- some of it quite serious -- it seems reasonable to question if Gurry is the right person to continue to lead WIPO. Apparently, the member states that control WIPO don't have a problem with it, because they've now reappointed Gurry, giving him a second six-year term.

As for his focus? It appears to be to continue pushing a maximalist position. While it should be noted that WIPO has actually become marginally less maximalist in the past few years, thanks to the influence of developing nations like India and Brazil, it's still an organization that focuses on maximizing intellectual property, rather than maximizing what's actually best for the public. That's clear from Gurry's "acceptance" speech.

Turning to the future, I believe that the fundamental challenge that we face as an Organization is to achieve a shared understanding of the contribution and value of intellectual property to economic, social and cultural development.

Notice that it's not about determining whether or not it's actually true that "intellectual property" creates such value -- it's just assumed as fact.

And, indeed, he also highlighted areas where WIPO has been working on dangerous new forms of "intellectual property" protections -- where absolutely none is needed: broadcast rights and traditional knowledge.

In concrete terms, for example, the Organization must achieve successful outcomes both on broadcasting and on traditional knowledge, traditional cultural expressions and genetic resources. If we are unable to address the latest technological developments, the Organization will fail in its main mission of encouraging innovation and will become irrelevant to the mainstream of global innovation. If we are unable to address traditional knowledge systems, the Organization will fail in its mission of universality and will not recognize the full scope of intellectual contributions to innovation.

This is ridiculous and dangerous. Locking up traditional knowledge doesn't help "recognize the full scope of intellectual contributions to innovation" -- it just makes it more difficult for continued innovation. Protectionism where none has been needed slows down progress, rather than advances it.

As the old saying goes, when all you have is a hammer, everything looks like a nail. The problem here is that WIPO seems to view every bit of knowledge, content and transmission as a rogue form of "property" that needs to be locked up and put behind a tollbooth. And rather than looking into how dangerous an assumption that is, Gurry is busy threatening bloggers for reporting about his own questionable behavior.

Filed Under: dna, francis gurry, gene quinn, intimidation, threats, un, wipo

Shameful: WIPO Threatens Blogger With Criminal Charges For Accurately Reporting On WIPO Director's Alleged Misconduct

from the intellectual-property-and-censorship-again dept

Last fall we wrote about some surprising allegations that Francis Gurry, the director of WIPO (the World Intellectual Property Organization -- a part of the UN), had surreptitiously taken DNA samples from employees while trying to determine who had sent him anonymous letters. This is the same Gurry who was already involved in highly questionable scandals involving ignoring UN sanctions against both North Korea and Iran, to send them computers, which WIPO idiotically believed those countries would use to bolster their local patent systems. Because, when you think of Iran and North Korea, I'm sure you think about their patent systems.

There had been some public efforts by a few members of Congress to oppose Gurry's re-election to WIPO because of these infractions, but all that seemed for naught a couple months ago when Gurry was re-nominated. It's not final that he'll remain as director, but it's almost entirely assured. A few weeks ago, however, I saw that stories of the DNA collection had resurfaced, mainly in a blog post by noted patent lawyer and blogger Gene Quinn. While Quinn and I disagree about nearly everything patent related -- sometimes angrily -- his blog is still a worthwhile read, and this original story had caught my attention. Quinn had a copy of the "Report of Misconduct" filed by James Pooley, one of Gurry's deputies, going into much more detail on Gurry's actions with regards to the illegal DNA collection, and calling into serious question Gurry's ability to lead WIPO. You can read much more about Pooley's charges in a Fox News report. However, you can no longer read the report or Quinn's analysis of it because WIPO threatened Quinn with criminal charges for posting it.

I had actually opened Quinn's post -- and the files he posted -- back when he first put them up, but set them aside to revisit later, and like many stories I hope to get to, I never actually wrote about them. While I still had the tabs with the files opened, somewhere between then and when I restarted my browser, the files had actually gone away. The threat to Quinn, however, seems worse than the claims of DNA collection in the first place. Here is WIPO actively issuing bogus legal threats to censor someone performing journalistic endeavors reporting on factual information. Here's the letter that WIPO's lawyer sent Quinn:

I am writing to you in my capacity as Legal Counsel of the World Intellectual Property Organization (WIPO), in relation to a report and its accompanying exhibits (“WIPO Deputy Director General Alleges Gurry Misconduct”) that are posted on your website IP Watchdog.

I should like to express my grave concern over the contents of this report, which is both insulting and defamatory, as it contains false statements that harm WIPO and the reputation of WIPO’s Director General, Mr. Francis Gurry.

As at Friday, April 11, 2014, we have noticed that the Report itself has been removed from the website. We are, however, very concerned to see that the annexes to the Report (the so-called “exhibits”) are still posted on your website. As you will no doubt know, the said Report and its exhibits or annexes constitute defamatory material which, inter alia, suggest corruption, concern DNA allegations, and are a republication of rehashed allegations.

In addition, I should like to remind you that under Swiss law, the publication of such false and defamatory material could constitute a criminal offence. This is, of course, without prejudice to the laws of any jurisdiction to which you may be subject.

We hereby request that you immediately remove the Report and all its exhibits or annexes from the website.

We hereby further request that you publish an apology to the Director General of WIPO for the publication of false and defamatory material on the website.

Please be informed that if this request is not immediately acceded to, the Director General and WIPO will seek independent legal advise to bring defamation proceedings against you in any competent jurisdiction.

We thank you for your anticipated cooperation.

Sincerely,

Edward Kwakwa
Legal Counsel / World Intellectual Property Organization

This would be from the same Kwakwa who was also at the center of the computers-to-North Korea and Iran stories. Either way, the threats are ridiculous. First off, under the SPEECH Act, Quinn is completely protected from any defamation ruling for a variety of reasons. First, not only is it unclear if this was actually defamatory, merely republishing a report written by someone else is protected in the US under Section 230 of the CDA, and the SPEECH Act was written to make sure that Section 230 protections applied even against lawsuits filed in other countries for publications based in the US.

Second, it's quite incredible for Kwakwa to declare -- as fact -- that the content is defamatory (even suggesting that Quinn magically "knows" this is defamatory). Clearly Pooley and many others do not believe it is defamatory, and as far as I can tell, no court has ruled that the content is defamatory. And this isn't just some random person declaring that Gurry was involved in this: it's a guy who reports directly to Gurry. If it's defamatory, let Gurry take it to court and have it declared so. You don't just get to censor stuff based on one party's claim.

Third, as Intellectual Asset Magazine (linked above) notes, the whole thing -- intimidating a journalist with threats of criminal charges for merely reporting on a document that no one denied was, in fact, filed by WIPO deputy director James Pooley -- is insane:

As a journalist I find this utterly outrageous. I hope that other people do too. Quinn was not threatened with legal action for any allegations that he made, or for the slant on the story that he wrote around Pooley’s report and exhibits. Instead, he was threatened with legal action for providing a link to them.

Let’s remember, Pooley is Deputy Director of WIPO, he works with and reports to Gurry, and he has made very serious allegations. If that is not newsworthy, I do not know what is. Furthermore, as far as I know, these allegations have not been withdrawn – and certainly had not been when Kwakwa wrote the letter - neither has any investigation of them been reported, let alone concluded. Yet Kwakwa, WIPO’s legal counsel, has declared them “false and defamatory”. How does he know?

Quinn has chosen not to fight this, taking down his post and the associated documents, noting that while he believes in the First Amendment, he's currently recovering from hip replacement surgery and is in no condition to take on this sort of fight at the moment. I've seen at least two other reporters and bloggers who claim to have a copy of the report similarly refuse to post it, noting that it's not worth the legal fight.

And thus WIPO has effectively censored a report on misconduct by its Director General, filed by a senior deputy. To me that's just as, if not more, incriminating than the original charges of the DNA collection. The fact that WIPO believes this is appropriate screams of a coverup from an organization that has something to hide. Perhaps it's no surprise -- given how often we've seen copyright used for censorship -- to find out that the organization that pushes for greater copyright and patent maximalism around the world is also a fan of direct intimidation and censorship of journalists.

However, it should certainly call into serious question how WIPO functions, and whether Director Gurry is the sort of person who should be leading the organization when it appears to be doing all this under his watch.

Filed Under: defamation, edward kwakwa, francis gurry, free speech, gene quinn, intimidation, james pooley, journalism, speech act, threats, wipo

Patent Lawyer Insists Open Source Stifles Innovation

from the gene,-please,-you're-making-us-laugh dept

I have to admit that I'm finally beginning to believe that patent attorney Gene Quinn is really a joke made up by someone trying to embarrass patent attorneys. He's an elaborate satire of the most ridiculous possible position a patent attorney could take, to highlight via reductio ad absurdum the sheer farcical nature of the positions held by many patent attorneys. He's the same guy who said anyone who was against software patents was against innovation -- even if the evidence showed that getting rid of software patents could lead to greater innovation. He also challenged me to a debate, saying it was impossible to make a statement that patents hindered innovation, and when I pointed out the detailed evidence supporting that position, he insisted he "didn't need" evidence, because of what he could see with his own eyes. I mean, this is not someone that you can take seriously. So I'm now coming to the conclusion that he's really just a made up joke by anti-patent folks to show where the ridiculous positions taken by some patent attorneys leads to.

For example, take the latest "Gene Quinn" post, where he insists that open source software stalls innovation and that patents advance it. First, as you read through the blog post, you realize that Quinn can't actually make that argument. So he doesn't. Instead, he makes a totally different argument about whether or not software developers should spend their time doing searches on prior art. Now, we've had this discussion plenty of times in the past. Due to the way patent law is structured, if a patent holder can show "willful infringement," then they can get treble damages. For this reason many patent attorneys (not just those advising open source developers) recommend not looking at other patents, because some lawsuits involved patent holders claiming there was willful infringement if you had seen their patent. Thankfully, the courts have been raising the standard for proving willful infringement, but still this is a common recommendation.

Except, in Quinn's world, this is something that is just done with open source developers, and then you have to follow a maze of twisty little passages of the mind to watch as Quinn tries to contort this fact (which, again, has nothing to do with open source) into proof that open source is bad for innovation. The key nugget is here:

Stepping back for a moment and looking at the "don't look" advice from a different perspective, for those who want to do original work, I really don't know how you can do anything original without knowing what else is out there. If the goal is an artistic or creative one, as is the case with academia for example, the only way to know where to try and make a mark is to endeavor to know the industry and figure out what others have done, and then seek to identify what hasn't been done. This is one enormously positive aspect of the patent system. While clearly imperfect, when people and companies want to innovate and want to build a business and attract investors from zero to start-up they seek out the spaces where there are opportunities.

Except, of course, almost nothing in this paragraph is accurate. We've already pointed out that the "don't look" advice is spread around widely and has nothing, specifically, to do with open source. Second, developers aren't looking to "do original work." They're looking to do useful work. Necessity is the mother of invention and all that. Innovation doesn't come from looking for something that "hasn't been done." Usually, it's in response to a need that you are seeing in the market place, and when you see that need, it doesn't matter if others are doing something already. The fact that you see a need that hasn't been fulfilled means that there's an opportunity.

In some ways, Quinn's mistake here is simply a restatement of the mistake many patent attorneys make in confusing idea and execution. He assumes that for innovation to occur you need to have an original idea, rather than just a better way of solving a market need. And, the idea that you have to do something "original" to attract investor attention suggests that Quinn doesn't spend much time in the venture capital world. It's pretty well known out here in Silicon Valley that if you come to investors with something truly original, you'll almost never get an investment. It's just too difficult. They can't fit that into the model they're working with. To get an investment you need one of two things -- neither of which is "finding some original space." No, you need a story about how you're doing something the VCs already understand, but better (i.e., the opposite of what Quinn suggests) or you've got a great track record of executing. That's because most good (successful) VCs recognize the difference between ideas and execution. And they'll bet on people who can execute over people with ideas every single time.

There's plenty more that's ridiculous in Quinn's post -- which is why I'm pretty sure that Quinn's blog is pure satire that had me fooled for many years, but I'll just respond to one more point, because it's so amusing:

I have a real philosophical problem with those who want to copy, whether it be intentionally or without knowing. We ought to want to find the open spaces and fill them. That is what Thomas Edison did, and many thousands of others throughout our history.

As anyone who's actually studied Thomas Edison knows quite well, pretty much all Edison did was copy others. Nearly all of his great "inventions" were actually invented by others first. Edison, on the other hand, was great at taking the inventions of others and innovating. That meant making minor tweaks to make the offerings more marketable, marketing the hell out of them... and, oh yes, using the patent system to try to wipe out any of the competition (even if they had much, much, much better products).

Filed Under: gene quinn, innovation, open source, patents, software, software patents

IP Lawyer: If You Are Against Software Patents, You Are Against Innovation

from the oh-please dept

I used to read a blog by a patent attorney named Gene Quinn. Sometimes it had some interesting posts on it with a strong pro-patent viewpoint. But too often he would just become a parody of the pro-patent position, making declarations that something was fact, when the evidence suggested otherwise. Late last year, he insisted that it was impossible for a patent attorney to think patents harm innovation. He also insisted that it was an economic impossibility for patents to not help innovation. When we presented an awful lot of evidence to the contrary in the form of numerous studies that looked at the historical evidence and made clear -- from a variety of different angles -- that patents do not lead to greater innovation, Quinn responded by saying he didn't care about what the studies said, because he just knew that patents increase innovation based on what he saw. Consider it faith-based economics. Evidence be damned. Gene Quinn is right because he just knows it (oh yeah, and he profits from it too...).

Anyway, after that, I realized there was no reason to read his blog, but reader Brad points us to an absolutely stunning argument that Quinn has now made, saying that true innovators want patents, and only those who don't innovate don't like patents:

If you are against software patents you are not an innovator. Innovators want patents, those who do not innovate and copy others do not want patents

This was in response to Ian Clarke, a well known software developer, entrepreneur and someone who has argued strongly and articulately against software patents, pointing out in great detail, the harm they have done to the software industry. Clarke does a good job explaining his position, but Quinn doesn't bother responding to Clarke directly, but makes up strawmen. For example, Clarke points out that he's raised plenty of money from investors, despite being against software patents, and Quinn mocks the idea that any VCs would fund businesses without patents:

I would love to know who the investors are that are willing to provide funding for a software business that relies on trade secrets and copyrights. Naive investors like that would certainly be interested in companies with real protections. Simply stated, software cannot be adequately protected with copyrights, which I am sure you know or you should know. Likewise, trade secrets do not offer much, if any, protection for software. If the software is released the trade secret would be lost because anyone can get to the code.

Note that Quinn is both ignorant of the factual situation (many of the top venture capitalists around are against software patents -- and Clarke lists out his investors, which include top tier VC firms) and then twists the story to something that Clarke did not say. Quinn seems to be of a belief that the only way a software company can be in business is with some sort of gov't backed monopoly to "protect" them. It has apparently not occurred to him that businesses survive not based on protections, but on selling products and services, and you can do that without protectionism. In fact, here in the US, we tend to recognize that competition is a good thing. I'm not sure why Quinn is so against it. Oh yeah, as for VCs against software patents, we've discussed quite a few.

Clarke does a nice job responding to Quinn. Quinn -- as he has done to me multiple times -- refused to let Clarke's post go live until Clarke complained and noted that it wasn't worth responding any more, leading to this next extraordinary claim from Quinn, who seems more like a parody of the pro-patent side than anyone arguing seriously:

Everyone knows that those who don't want patents just want to copy the work of others. Copyists are not innovators, they are a drag on everyone. Free riders are not innovators. I know you understand that, and suspect that is why you are leaving, having been defeated by logic and rational arguments. Sorry if I hit too close to home. Sorry also that you couldn't stand up to the debate and chose to run and make false allegations in the process. Not surprising though.

Funny thing? Those are the same arguments used for ages before Quinn came along. He's copying them. According to his own logic, he's a drag on the system. Also, he went to law school at some point, and was given a bunch of information that he has copied into his brain. Free rider!

The debate goes on and Quinn continues to make fantastical assertions like the following:

Innovators by definition create things that are innovative, which means they are new, non-obvious and otherwise unique. Those who engage in endeavors that are unique do not begrudge others from obtaining protections themselves, because if what they are doing is really unique there is no skin off their nose for others to obtain protections. An innovator who concerns themselves with what others are doing and demands they stop obtaining patents are really only logically saying one thing. You shouldn't get a patent and patents shouldn't be issued because I want to copy you and I don't want you to be able to prevent me from doing that.

This statement has so little connection to actual innovation (especially as done in the tech world) that it's difficult to think what Quinn is possibly referring to. As anyone who has been near real innovation knows, actual innovation isn't created in a vacuum. It involves building on the ideas of others and doing more with it -- the proverbial standing on the shoulders of giants. But, in Quinn's mind, apparently, standing on the backs of giants is free riding. He goes on in that same comment to accuse Ian of lying in claiming he has raised $15 million from some of the top VCs in the world. This is stunning. Ian is not lying. The facts are not hard to find. Ian is well-known and well-respected, as are many of his investors. Quinn did, of course, try to leave himself an "out" by saying that if Ian is not lying, then his investors are "the most naive investors in the world," yet fails to note that they are actually some of the most well respected and successful VCs in the world. But, apparently that's meaningless to Quinn.

Later on Quinn again makes the usual fallacy of claiming that any startup that is truly innovative and doesn't get patents would go out of business quickly, because a big "Mega Corp." would just copy the tech and the startup would go under. Of course, once again, the historical evidence suggests otherwise. Does this happen? Sometimes... but rarely. The reasoning is obvious if you've actually been around innovative companies. First, if your idea is truly innovative, Mega Corp. doesn't recognize it until its too late. In typical innovator's dilemma fashion, they dismiss truly innovative products as being "not good enough." By the time they realize what's happening, it's usually way too late to jump on the bandwagon. Second, innovation is not a once-and-done thing, but an ongoing practice. If big Mega Corp. just copies, by the time they're done copying, the innovative startup is already innovated past that and big Mega Corp. is just playing catchup. Third, by that time, the innovative startup has the reputation as the innovator, and people trust them more than the Big Mega Corp. doing the copying. We've seen this over and over and over again. Gene apparently missed it.

From there, the conversation spirals further and further out of control. If you ever want to see what the extreme pro-patent position is, then this is it. It presents no evidence at all (nowhere in any of the posts does Gene back up a point with evidence, but he does, repeatedly insist that "everybody knows" or something is "100% true" when neither is the case). When actual evidence proving him wrong is presented, he either ignores it, pretends it says something different than it does, or blatantly says that the evidence itself is a lie. Even if you believe in patents (software or otherwise), Gene Quinn is making a mockery of the pro-patent argument by arguing such things and ignoring any and all evidence that proves him wrong. There may be legitimate arguments in favor of patents out there, but Gene isn't doing that side any favors by making himself look so ridiculous in the face of strong arguments to the contrary.

Obviously, I'm pretty strongly in the opposing "camp" on the question of patents, but even I can admit that, as with any monopoly, patents create two countervailing forces. The first increases activity in an area due to the promise of monopoly rents and monopoly profits. The latter decreases activity in an area due to the limitations created by a monopoly, and the power for such monopolies to prevent competition and continued innovation. The question is which force is stronger. And I've read many dozens of studies and historical evidence and nearly every one points to the latter being the stronger force. I'm willing to be convinced however by compelling evidence in the other direction. However, someone like Quinn doesn't even seem willing to admit that these two forces exist and are in conflict. I don't see how one can argue in favor of patents without at least admitting that the second force exists and has been proven over and over again -- even if you still believe that the first force is stronger.

Filed Under: gene quinn, innovation, patents, software patents

Is It So Crazy For A Patent Attorney To Think Patents Harm Innovation?

from the not-at-all dept

I know a fair number of patent lawyers and copyright lawyers who are quite skeptical of what's become of patent and copyright law -- and who readily admit that the law has gone way beyond what is reasonable or what the law was designed to do (i.e., "promote the progress..."). And yet there are some in the patent or copyright legal business who somehow seem to think that it's traitorous for a patent or copyright lawyer to ever dare question the idea that patents and copyrights work. I had a patent lawyer argue with me the other day that of course patents encourage innovation, because the Constitution says they do. This sort of logical blunder blows my mind. How can otherwise intelligent people assign such backwards logic to things? Do these same people also believe that when Congress passes any law, it automatically achieves its goals?

I have a good friend, who has recently made it through law school. Since he spent over a decade as a computer scientist, the law firm he went to work for made sure he did a rotation in the patent group (but of course). He was telling him how sick the experience made him feel. He said the stuff he was working on was disgusting. Helping companies patent blatantly obvious ideas, and using those patents to sue other companies who were innovating. Even worse, he said that many of the partners in the group seemed gleeful at how they were abusing the system, solely because of the amount of money such projects bring in. None of them bothered to consider that the overall impact of what they were doing wasn't "promoting the progress" but was harmful to society as a whole.

So, I can understand how lawyers can be on both sides of the equation (though, it says something to me about how they view the world). And, yet, there are still some IP attorneys who seem to think that it's somehow ridiculous that a patent attorney could ever find patents a net negative on society (leaving aside the many, many recent studies done by lawyers who have shown exactly that). Stephen Kinsella, a patent attorney who is against patents has responded to one such claim by a patent attorney, explaining why of course a patent attorney can disagree with the patent system, and still do his job. He notes plenty of patent attorneys who have become skeptical of the patent system.

But what's really stunning are the claims of the patent lawyer, Gene Quinn, who prompted Kinsella's claim. He was actually writing in response to a Techdirt post, where he makes numerous odd claims that don't make much sense. He assumes that it's factual that patents must promote innovation based on "the basic laws of economics." This makes me wonder which laws of economics Quinn is talking about, seeing as the laws of economics I know say that monopolies almost always lead to suboptimal societal benefit. He claims that "all the evidence" say that patents increase innovation. Except that's not true at all. We can start listing off all the studies that have shown the contrary, but I've yet to see one that actually supports Quinn's position. In response to that, Quinn amazingly claims that the studies that prove him wrong don't matter:

Would you please stop reading studies and look at history! Studies are done by academics with an agenda, are based on thought experiments, do not take into consideration important factors and are preconceived in order to come out with a particular answer.

That's a neat trick to dismiss the actual evidence (after insisting all the evidence was on his side), but it's flat-out, almost 100% wrong. And provably so. Because most of the studies I was talking about aren't "based on thought experiments" but are "looking at history." And, among those "biased academics" are at least two Nobel prize winning economists (Maskin and Stiglitz) and someone who was a very successful entrepreneur before moving to academia (Bessen). Besides, most of the academic studies that Quinn dismisses as irrelevant was peer reviewed. There are problems with peer review, of course, but to claim that these are far out ideas, while insisting that "the basic laws of economics" supports patents is simply not supported.

There are plenty of reasons why people might believe patents increase innovation -- but they're the same theories of the mercantilists in the 18th century, who believed that monopolies on other products spurred more development in those businesses. That theory was debunked and is considered laughable by pretty much any economist today. And yet, when it comes to patents, why do people automatically reject what economists realized two hundred years ago? Monopolies may temporarily benefit the monopolist, but at the expense of society as a whole. And, if Quinn wants to look at history, let's take a look at people who did actually look at the history, from Eric Schiff (showing rapid innovation and industrialization of the Netherlands and Switzerland without the use of patents) to Petra Moser (showing no less innovation in comparable countries with no patent laws to those with patent laws) to Lerner's work (comparing various countries before and after they changed patent systems, showing that stronger patent laws do not lead to greater innovation) to Qian's research (patent system changes across countries in the pharma industry, showing stronger patent laws did not lead to greater innovation, and, in fact, that weakening IP enforcement often led companies to become more innovative to stand out from the competition) and onward (there are a lot more where that came from). Hell, even the World Intellectual Property Organization (which usually is pretty damn supportive of IP) has noted that there's been no real evidence that IP protection leads to any economic payoff.

Quinn says to ignore the studies and look at the history, but the history says exactly what he claims it doesn't.

Those who insist that patents must lead to innovation fallback on a few, rather basic, logical fallacies. They point out that countries with strong patent laws tend to see much greater innovation. This is what Quinn means by "look at the history." But they are mixing up correlation with causation -- not recognizing that the stronger patent laws almost always post-date a period of much greater innovation, and then the patent system gets strengthened, not to promote more innovation, but to limit competition from those who innovated in the past (and, in fact, research by Park and Gigante found evidence of this very thing in looking at "history"). Or, they claim that since we still see some innovation, then clearly patents don't hold innovation back. But compared to what? The argument we're making has never been that patents stop all innovation cold. Of course innovation still occurs. But the question is at what rate? As we've seen in countries without patents or with much weaker patent systems, you tend to have much greater competition among smaller, more nimble firms. Since competition is a great driver of innovation, it's no surprise that there would still be great innovation in such societies. Separately, the fact that there may be fewer major innovations coming from societies with weaker patent laws today is again, not evidence that patents work. There are numerous factors that influence innovation -- and picking a country with poor infrastructure or widespread poverty, isn't exactly an apples to apples match with someplace like the US.

But just thinking logically, you can realize why the argument that, without patents, there would be no innovation, is provably false. When it's easy to copy someone copying losing all value by itself. Just being a copycat is pretty useless, because anyone else can do it. So, the real value is not in copying, but in leapfrogging. And that leapfrogging is (*gasp*) innovation. It's only in a world with patents where copying has value. That's because those patents create monopoly rents -- and thus, there's an artificial profit bubble, that others want access to. That creates a societal net loss.

Given all of this, it makes plenty of sense why patent attorneys could certainly recognize the harm that patents can cause. In fact, I would think such individuals are a lot more trustworthy on patent issues, since you know their position is not influenced by the fact that they make money off of the system. So, no, there's nothing odd about patent attorneys who find problems with the patent system. They're people who recognize the simple fact that just because a system is set up to do one thing, it doesn't mean that it automatically occurs. They're people who recognize that innovation is not synonymous with patents, and are able to take a step back and say what is truly best for innovation.

Filed Under: gene quinn, innovation, patent attorneys, patents, research