US Patent Boss Completely Clueless: Insists That Patent Fights Show The System 'Wires Us For Innovation'

from the oh-come-on dept

Tue, Nov 20th 2012 3:30pm — Mike Masnick

Last week, there was a fascinating full day conference on ways to fix the patent system. There was a lot to digest, and I've been working on a much longer post about it, which I may not finish until next week. Someone from the USPTO was in attendance, and at one point stated that director David Kappos fully "heard" and understood the problems that people were complaining about, and that he fully intended to fix the system. Apparently someone forgot to tell Kappos. In a talk today, he completely blasted "complainers" telling them to "give it a rest already." His argument is that the America Invents Act -- the completely toothless patent reform that passed last year after being stripped of almost everything useful -- was just implemented, so we should just sit around and twiddle our thumbs while hundreds of billions of dollars are wasted due to bogus patents and disputes.

Except to Kappos, all that dead weight loss is a sign that the system is working. Why? I have no idea.

Indeed, Kappos suggested that the volume of patent litigation in the smartphone industry was a sign that the patent system was working as intended. "The explosion of litigation we are seeing is a reflection of how the patent system wires us for innovation," Kappos said. "It's natural and reasonable that innovators would seek to protect their breakthroughs using the patent system."

Note the giant and very questionable assumptions in the middle of that one: that it's "innovators" seeking to "protect" "breakthroughs." I'd argue that none of the three things in quotes is accurate. Quite frequently it's lawyers who haven't actually innovated at all looking to shakedown actual innovators for broadly worded patents that never should have been granted, and which are being interpreted to cover things they don't really have anything to do with. That's not innovation. It's extortion... backed up by the US government. It's a travesty.

Even worse, Kappos is still relying on the absolutely ridiculous "study" that the USPTO put out earlier this year, despite the fact that its methodology has been widely debunked for including grocery store baggers as "IP innovators." Sorry. And, if you look at what their actual report shows, it suggests that patent-intensive businesses aren't doing so well. Somehow he ignores that. Of course, perhaps that's why his office rejected a promised interview with me earlier this year, and could only defend the patent claims by arguing the most bizarre correlation argument in the world, that because Steve Jobs was innovative and had patents, therefore, patents worked.

Rather than address any of the real and well documented concerns with the patent system, Kappos apparently just decided to spin a fairy tale. He insists, as he's done in the past, that stronger patents automatically create more incentives, even as the evidence suggests that's not even close to true.

More recent research has estimated that litigation by patent trolls costs the economy at least $29 billion per year, and that figure may be as high as $83 billion.

Rather than engage in this empirical debate, or even acknowledge its existence, Kappos acted as though it was self-evident that stronger patents always create a larger incentive for innovation.

"To those commenting on the smartphone patent war with categorical statements that blame the so-called broken system on bad software patents, what I say is: get the facts. The facts don't support your position."

With all due respect, Mr. Kappos, we do have the facts. And they support the position of software patent critics.

It's sad that Kappos sends his lackeys to Silicon Valley to claim that he's "listening" and then spews such pure crap. The system is broken and either Kappos is lying or clueless. Neither reflects well on him.

Filed Under: america invents act, david kappos, patent reform, uspto

60 Comments

California PUC Cracks Down On Innovative Ride Sharing Operations As Another Batch Of Taxi Drivers Sue Uber

Innovation

from the innovation-not-allowed dept

Mon, Nov 19th 2012 3:35am — Mike Masnick

We've covered the various regulatory and legal fights that Uber has been dealing with lately. The company, which basically has set up a super convenient way for people to book a ride (and, in some cases, taxis), keeps running up against a combination of local regulatory agencies who tend to feel that they get to lord over anyone who attempts to do anything involving driving people around for money, as well as existing limo and taxi providers who fear a more efficient system (especially when they profit off of inefficiencies). Of course, some politicians and taxi/limo drivers recognize that greater efficiency is actually good for everyone, allowing a more convenient and useful system, and filling in gaps when regulated supply strains the system.

However, too many are just focused on the status quo. And this isn't to say that there isn't a place for regulatory bodies to ensure that cabs and limos are safe and that they don't take advantage of passengers. But the line between protecting passengers and protecting legacy players from competition sure does become a blurry line very, very quickly. And this week a bunch of these companies have run into legal problems on their home turf. Uber, specifically, has has been sued in San Francisco by some cabbies demanding that the company be shut down. They claim that Uber's car hailing service is really an unregulated taxi service, and thus, unfairly competing with them.

Perhaps the bigger issue, however, is that the California Public Utilities Commission (PUC) has fined Uber and two other companies, Lyft and SideCar (who offer ridesharing). As that Wired link notes, this seems to be a clash between two core concepts that seem to thrive in San Francisco: on the one hand, freedom to innovate and disrupt and, on the other hand, support in government intervention for the public good. I'd argue that the two concepts aren't in quite as much conflict as the article suggests, if the intervention actually is for the public good. The problem is that's not really clear here, and it's not hard to see how it's really for the sake of limiting competition.

SideCar points out that this is a case of regulators not knowing how to classify an innovation:

asserting that we are operating a transportation carrier... is like saying Airbnb is a hotel chain, that Travelocity is an airline, or that eBay is a store

Lyft, similarly, suggests that there's a problem in regulators taking a square peg and trying to shove it into a round hole, because they've never seen a square before:

Transportation has historically been a highly regulated industry, and the existing regulations weren’t designed to imagine a world where two neighbors who have never met are able to connect within a matter of minutes to share a ride across town.

Uber's CEO, Travis Kalanick, told Wired that the PUC fine is particularly ridiculous in its case, since it only works with drivers who are already regulated by the PUC. It's just offering them another channel for finding customers. But under the PUC's ruling, it appears that they want those people to be doubly regulated, which seems completely wasteful:

Our contention is that if you read the regulations, such a notion doesn’t make sense. Are we supposed to give drivers a second drug and alcohol test? Are we supposed to have cars inspected by the DMV a second time after they’ve already inspected (our) partners’ vehicles?

In the end, you have to wonder if the role that regulators have still makes sense for these kinds of innovators. Yes, there are issues about safety and avoiding scams, but the various companies have built in systems to deal with that -- such as driver ratings and public reviews. Those types of things weren't really possible in the past, which is why you needed a PUC to make sure taxidrivers weren't ripping people off. But now the "PUC" can be the public itself. But... that only works if you believe the regulations are supposed to help the public, rather than the legacy players.

Filed Under: innovation, puc, regulation, ride sharing
Companies: lyft, sidecar, uber

26 Comments

Patent Office, Perhaps Forgetting What Year It Is, Locks Down Mobile App Development Platforms

Patents

from the is-anyone-at-the-uspto-awake? dept

Fri, Nov 16th 2012 9:30am — Mike Masnick

I'm spending today at a conference at Santa Clara University's Law school on Solutions to the Software Patent Problem. It seems only fitting that as this is happening, I've been alerted to a completely ridiculous new patent: Appsbar has put out a press release gleefully announcing that it's been granted a patent on offering a "create your own mobile app" development platform. Stunningly, the patent in question, 8,261,231, was just applied for in February of this year. I'm at a loss as to how a competent patent examiner could possibly think that a mobile app development platform is somehow new or non-obvious in this day and age.

Hell there are entire lists of similar platforms, and those lists appear to have been created before this patent was applied for. What is the USPTO doing over there?

Patent system defenders will immediately jump in to say that a patent is really all about its claims, but go take a look at those ridiculously broad claims. Claim number 1 is the main claim here, and what it describes is nothing special at all. It's just a simple web-based platform for developing mobile apps that can run on a variety of mobile platforms.

That's not new. Companies, like the now apparently defunct Whoop were doing exactly that years ago. Just the very concept of a simple platform for app development (even cross-platform app development) isn't even close to new. Such things have been around for ages. How can someone honestly think that this is "new" and not "obvious."

And yet Appsbar (which at least does offer a product) now not only holds this patent, but the press release was put out as way of announcing its plans to enforce the patent vigorously:

“We are proud that the U.S. Patent and Trademark Office recognizes the innovative and proprietary set of features offered by Appsbar and we plan on strictly enforcing our patent with other companies that currently provide similar types of services,” said Scott Hirsch, founder and CEO, Appsbar. “Until Appsbar, novice tech users, small businesses, general consumers and more had to rely on an entire internal design and software team or hire a costly agency for the design, creation and publication of apps.”

First off, the second half of that quote? Not true. I remember a few years ago we developed a Techdirt app using one of these platforms. It took all of about 10 minutes of playing around on some website. As for the first half, the fact that even they admit that there are a bunch of other companies already in this space basically shows that this patent is covering an old idea that is quite obvious at this point.

So if we're looking at how to fix the patent problem, can we at least start with this simple concept: stop approving completely ridiculous patents like this one.

Filed Under: app development, patents
Companies: appsbar

57 Comments

Bad Reasoning: We Don't Need More High Speed Internet Because People Don't Use Fast Internet Now

Broadband

from the the-point-is-way-over-yonder dept

Fri, Nov 16th 2012 7:28am — Mike Masnick

There's been a lot of discussion lately about how far the US has fallen behind other countries when it comes to high speed broadband. And many are taking it for granted that high speed broadband is important to economic growth and viability. Yet Tim Worstall, over at Forbes, argues that "High Speed Broadband Doesn't Matter A Darn" because a UK study showed that people don't use super high speeds. He quotes a report (pdf) from Booz & Co.

But speed in itself is not enough to encourage usage. Ofcom (an independent regulatory authority for U.K. communications industries) has noted that in 2011 superfast coverage of the U.K. was at 60 percent, but only 6.6 percent of all connections were taking advantage of the top speeds. This suggests that focusing on availability is no guarantee of deriving full benefit from the investment.

Worstall then uses this to argue that speed isn't an issue and we shouldn't invest in faster broadband:

As should be obvious, it’s not the speed of the internet that produces the economic growth. It’s the people using the internet that does. And if only 6.6% of the traffic is using the speeds we already have then there really isn’t much of a case for throwing billions at making it all faster. So that, presumably, only 6.6% of the traffic will use that higher speed.

In fact, given the low numbers even bothering to use current speeds I’d say this is a very good argument for not spending a lot of money to roll out high speed broadband everywhere. The most important reason quite possibly being that I rather doubt that broadband is going to be the technology of choice for much longer.

This reasoning is faulty on many, many levels. First off, if you look at the full Booz report, almost every conclusion is exactly the opposite of what Worstall suggests. He seems to take that one paragraph out of context, and assume that because only a small percentage of people were taking advantage of "top speeds" it means that there's no real demand for it and no economic benefit.

That's making a big assumption. He's right that "it's not the speed of the internet that produces the economic growth," and that it's the people, but he ignores that part of what brings in those people are the services online -- and new, better and more useful services are quite frequently enabled by higher speeds. It's almost hard to imagine how much more can be done online as speeds pick up. A decade ago, the idea of so much video online was crazy. And yet, here we are.

Second, the fact that only a small percentage of people are using full broadband capabilities is meaningless. That's a snapshot, not a look at the trend. What happens is that as more services offer up useful features that increase the number of things you can do with broadband, more people will use it. The last thing you want to do is get caught waiting -- and then suddenly have all your users pissed off that the broadband can't handle the latest and greatest applications and use cases.

Faster broadband doesn't immediately get soaked up, but it does lead to greater investment in bandwidth-intensive services, and that will increase usage and expand the economy. Taking one quote out of context and then looking at a snapshot rather than a trend is not a particularly compelling reason to pull out on key infrastructure investment at a time when it's needed most.

Filed Under: broadband, innovation, trends, usage

71 Comments

Democrats & Republicans Should Come Together To Support A Future Of Abundance

Innovation

from the a-proposal dept

Wed, Nov 14th 2012 2:39pm — Reed Hundt and Blair Levin

As a therapist would tell a couple bickering over each others' working and spending habits, Republicans and Democrats now quarreling over the federal budget should change the framing of topic. Instead of focusing only on how much the government should tax and spend in the economy we know, the leaders of the opposing parties should look at what the economy could quickly become if government passed laws encouraging productive private sector investment in growing technology-driven markets.

Forbes Magazine has just run a cover story on how the $3.9 trillion education market--$1.3 trillion in the United States alone--is about to be radically transformed by a new breed of venture-backed disruptors. Almost half of the education venture deals in the last decade have closed in the last two years. Investments in digital health care start-ups in 2012 are up 73% from last year. Health care start-ups exceeded all other sectors, including software, as the largest recipient of angel investments.

Four major national carriers, and other regional firms, have raced to build the largest deployment of high speed mobile broadband in any large country. Cable, telephone, and satellite firms are offering faster broadband, with WiFi connectivity taking on new and better dimensions in innovative network architectures. On these new platforms, e-education, e-health ventures and all manner of e-services based on government data can proliferate.

For the two political parties wedded together against their wishes by the will of the voters, common ground for agreement can be found in asking how government can help more services be created more rapidly on the knowledge platform that already hosts the most exciting business developments in the economy. Here are four examples of a multi-step program for going along and getting along.

Step one: Congress should require the Executive Branch to implement the recommendations of a group of a high-tech CEO council that identified about $1 trillion in savings achievable by 2020 through better use of technology.
Step two: Congress should overhaul corporate taxation so as to reward job creation, expand research and development, encourage long term and sustainable equity growth, provide regular returns to shareholders, sustain sensible balances of risk and reward, and applaud success in exporting goods and services for sale in other countries.
Step three: Congress should require the Executive Branch to aggregate its purchases of bandwidth so as to drive increased capital into new networks, and to move all government services into digitized forms delivered to all broadband customers.
Step four: Congress should require that all classrooms and libraries have the opportunity to win major monetary awards from government for providing breakthrough e-learning capabilities to their communities.

Inside the Beltway, years of irresolvable debate have left many Republicans and Democrats discouraged and distrustful of each other. Their battles against each other have produced a war against new ideas that they both have sadly won. If they looked outside the Beltway, they would see an America brimming as never before with hope for technological change. Our government's leaders can surprise themselves and delight the country by passing useful laws and delivering an improved standard of living for all -- and full employment. Then -- just as occurred when a trillion dollars of private investment built Internet 1.0 in the 1990s -- a rapidly growing economy would do more to balance the budget than any imaginable combination of tax increases and spending cuts.

Reed Hundt was chairman of the Federal Communications Commission from 1993 to 1997. Blair Levin oversaw the creation of the National Broadband Plan and is now a fellow at the Aspen Institute Communications and Society Program. Their e-book, "The Politics of Abundance: How Technology Can Fix the Budget, Revive the American Dream, and Establish Obama's Legacy" details the plans in this article. See www.politicsofabundance.com for a slide presentation and to download the e-book from any major e-publishing site.

Filed Under: abundance, innovation, politics

50 Comments

Forget Patents: Why Open Source Licensing Concepts May Lead To Biotech Innovation

Patents

from the share-and-share-alike dept

Fri, Nov 2nd 2012 3:12am — Glyn Moody

One of the main forces driving the move to open access is the idea that if the public has already paid for research through taxation or philanthropy, then it's not reasonable to ask people to pay again in order to read the papers that are published as a result. The strength of this argument is probably why, in part, open access continues to gain wider acceptance around the world.

But the same logic could be applied to the commercialization of publicly-funded research. Why should people be asked to pay often elevated market prices demanded by companies for these products -- which naturally try to maximize profitability -- when it was the public that funded the initial work that made those products possible in the first place?

As with open access, the challenge here is to come up with an alternative approach that allows new medical treatments to be made available as widely as possible. A recent paper by John Frangioni in Nature Biotechnology, pointed out by @MaliciaRogue, offers a novel solution based on open-source development managed by a non-profit foundation:

In this open-source model, sublicensing to for-profit entities is encouraged but is nonexclusive. For-profit companies licensing the technology are encouraged to innovate on the platform, which will provide protectable IP for them, help lower the barriers to market entry and provide patients with even better versions of the technology. Open-source information exchange and evolution of the technology is encouraged rather than discouraged, with the premise that knowledge will empower for-profit companies that want to carve out IP-protected niches while empowering academic scientists with a firm grasp of the state of the art.

It's a detailed, fascinating piece that explores the current problems with the commercialization of research, including the following thoughts on why the Bayh-Dole Act of 1980 has failed to boost technology transfer from the academic world to industry as originally hoped: In the wake of Bayh-Dole, the technology transfer policy of many AMCs [academic medical centers] has been to pursue the broadest patent rights for as many inventions as possible (all at great expense), sometimes without sufficient regard for whether there is enough validation of a discovery for assets to be licensed and/or commercialized; similarly, too often, startups are spun out of AMCs without sufficient due diligence, resulting in many enterprises that fail to receive sustainable funding from the investment community.
Frangioni's approach is quite different. Since the non-profit foundation is funded by the public, the focus is on maximizing patient benefit rather than financial return. On novel way of doing that is requiring reciprocity from those using the foundation's knowledge: enablers [researchers, surgeons and technology licensees] can purchase technology but only after signing an agreement to deposit knowledge gained with the technology into the Knowledge Bank [a publicly accessible database], through what we call the knowledge feedback loop. Here again is the principle of giving something when getting something: the purchaser must create new knowledge for the public good to have access to the technology.
This is exactly how open source software works: anyone can take the code and build on it, but they must give back their additions to the community so that others can build upon them in exactly the same way. The results in the software field, where open source dominates the Internet, supercomputers and -- thanks to Android's underlying Linux foundation -- smartphones, speak for themselves. Whether Frangioni's experience of putting these ideas into practice with his FLARE Foundation can be generalized, remains to be seen. But it certainly seems an approach worth exploring.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

Filed Under: biotech, innovation, open, open access, patents

7 Comments

Richard Stallman: Legislate That Using Software On General Purpose Computers Is Not Infringing

Patents

from the one-way-out dept

Thu, Nov 1st 2012 3:02pm — Mike Masnick

Wired is running a series of opinion pieces concerning ways to "fix" problems with the patent system today (we've made our own suggestions in the past if anyone's interested). It started with a suggestion from Mark Lemley that was similar to his other recent statements about fixing the problems of software patents by actually applying existing law to stop functional claiming (i.e., claiming around general concepts rather than specific implementations).

The second post in the series comes from Richard Stallman, who notes that it seems quite unlikely that the US will carve out software patents, noting (correctly) that this might not solve the problem anyway, since patent lawyers would just change how they write patent applications to get around any such carve-out. Instead, he suggests a different solution: limiting how widely software patents can impact new technology:

My suggestion is to change the effect of patents. We should legislate that developing, distributing, or running a program on generally used computing hardware does not constitute patent infringement. This approach has several advantages:

It doesn’t require classifying patents or patent applications as “software” or “not software.”

It provides developers and users with protection from both existing and potential future computational idea patents.

Patent lawyers can’t defeat the intended effect by writing applications differently.

It's an interesting suggestion, but I'm not so sure it would go over that well. People would certainly question why general purpose computing gets a pass. Also, the "generally used computing hardware" standard could be kind of hard to define as well. It still seems like there are more elegant solutions that focus on the real root of the problem, rather than trying to "carve out" certain impacts that we don't like.

Filed Under: computers, patents, richard stallman, software patents

53 Comments

CNN Counts Patents, Mistakes Them For Inventiveness

Patents

from the just-saying dept

Mon, Oct 29th 2012 1:43pm — Mike Masnick

For many years, we've pointed out that the research shows that patents are not a proxy for innovation. In fact, they're not even clearly correlated. There is no link between the amount of innovation and the number of patents received. The only thing that patents seem to spur is... more patents. But... because patents are often falsely associated with innovation and because they're easy to count, it's a very easy way for the lazy press (and politicians) to assume that they're showing how innovative a certain geographic region might be. We've actually called CNN out on this lazy trope before, but it hasn't stopped them from coming right back and posting a silly article about the "most inventive states" based entirely on patent counts.

Unfortunately, this only serves to reinforce the bogus narrative that patents are a reasonable proxy for innovation, and ignores the true nature of innovation. It's no surprise that lazy journalists would do this kind of thing, but it is a reminder that we really need much better metrics for measuring innovation.

Filed Under: innovation, patents, proxies

34 Comments

Why DC And Silicon Valley Don't Mix Well

Politics

from the first,-do-no-harm dept

Mon, Oct 29th 2012 12:41pm — Mike Masnick

Larry Downes has a good piece over at Forbes discussing how it's often best for innovation if regulators stay the hell away from innovative industries. He notes the very different paces (innovation quick, regulation slow) and how that leads to bad outcomes:

The wildly different clock speeds of Moore’s Law and Washington law, however, make for increasingly damaging collisions at the intersection of technology and public policy. Even with the best of intentions, lawmakers, regulators, and judges can’t possibly anticipate tomorrow’s innovative products and services. Nor can they guess how specialized legislation, thrashed out over the course of years and infected by lobbyists and special interests, will return to haunt us when technology inevitably changes.

Faced with the unknown unknowns of dramatically new products—social networks, location-based ads, driverless cars–the best advice for governments is simply to leave them alone. Don’t just do something, stand there. At least until it’s crystal clear that the market has failed, consumers are being harmed, and that lawmakers have a remedy that won’t make things worse.

However, regulators often don't understand this at all. They think that the quick pace of innovation means that companies themselves should slow down -- and that it's their job to force them to do so. Downes shares this troubling story:

At a conference I attended over the summer, on the other hand, the Federal Trade Commission’s Julie Brill got it dangerously wrong. Given the novelty of policy problems in privacy, cybersecurity and competition in the fast-changing Internet ecosystem, Brill argued, both Washington and Silicon Valley should proceed with caution. “Regulators need humility,” she said, “but so do companies.”

The dynamism of the Internet ecosystem certainly calls for more humble trade policy. But the last thing we want is for companies to slow down so Washington can catch up. In Silicon Valley, we have a special name for humble start-ups. We call them failures.

That's not to say that there isn't room for any regulations -- but as Downes notes, the thing that DC should be most focused on is "fixes to previous government efforts that tried but failed to fix a problem that turned out not to need a regulatory solution." Other industries seem to want handouts and investments and the like, but you don't see that much in Silicon Valley.

I was recently on a call with some entrepreneurs and some government officials, in which we were discussing a few laws -- and the government folks kept asking the entrepreneurs if they needed help protecting against copycats (generally foreign ones). The entrepreneurs kept ignoring the question -- and it kept getting asked. Eventually, someone on the call said: "Um. No. Look, someone's going to copy us. We know that. But we don't care because we know we can innovate faster than anyone who copies us." The government folks seemed confused, with one saying something to the effect of "that's great if you can do that, but..." But that really is the difference in mindsets. Entrepreneurs really just want to build stuff and are confident (sometimes too confident) in their own abilities to compete. We don't want government handouts -- we want government to get out of the way.

That's not to say companies should be free to do absolutely anything, but as Downes notes, we don't need the government fiddling around where there is no evidence of real harm. If there is harm, then you can understand why it can make sense to get involved -- but too often government officials seem to think they should get involved just because there's a possibility of harm, or because a competitor got beaten. But that's not good for innovation and it's not good for the public.

Filed Under: dc, innovation, pace of change, regulations, silicon valley

42 Comments

Why Hardware Patent Trolls May Be The Next Big Problem

Patents

from the they're-coming... dept

Tue, Oct 23rd 2012 9:22am — Mike Masnick

There's been plenty of talk about software patents, and tons of discussions from people suggesting that perhaps the "solution" to problems with the patent system are to simply carve out software (and business method) patents, and make those unpatentable. There are plenty of reasonable arguments for why "software" should not be patentable (I tend to find the arguments that you can't patent math, and that software is really math, the most compelling). However, I'd like to argue that while software patents are a large part of the problem, focusing solely on carving out software patents does not address the real problems of the patent system -- and, in fact, could serve to paper over the real problem by solving for a "symptom" (i.e., an awful lot of "software" patent trolling cases).

I do think that the problems with patents may appear to be more pronounced with software, in part because today's software patents really are broadly claiming functions, when they're supposed to be claiming specific methods. Also, given the fact that most people in the software world didn't even believe you could really patent software (until the State Street case), it meant you had very few "software" patents on the books for common things. This allowed people to get patents on things and claim, incorrectly, that there was no prior art, even if these things had been done for years. Add all of this together and you have the perfect recipe for a lot of trolling.

However, there are reasons to be worried that patent trolling is likely to increase on the hardware side as well. And, if we're serious about fixing the patent system, focusing solely on software patents is a dangerous path. It's a way to fight the symptoms, not the disease -- and, in doing so, it would allow policymakers to claim that they had fixed the problem, leaving significant problems in the underlying system in place.

We recently noted that economics Nobel Prize winner, Eric Maskin, told the NY Times that in industries that have "highly sequential innovation," that it "may be better for society to scrap patents altogether." And that applies increasingly to hardware inventions as well. While, traditionally, hardware inventions involved significantly more R&D and capital expenditure to make them possible, that's less and less the case today. Hardware production is becoming increasingly lean as well. There are a growing number of fabrication facilities that will help you make pretty much whatever you want, and prices are getting more reasonable while speed and quality are improving. Combine that with the rise of 3D printing and many (though certainly not all) types of hardware projects can become "lean" like a typical software company's projects.

Add to that one other key component: the rise of crowdfunding. One thing that we've noticed about patent trolling in the software field is that the lawsuits seems to come right after your company gets a lot of attention. And... there's been an influx of high profile "hardware startups" that have made their debut via things like Kickstarter. Many of the most successful crowdfunding projects have come from design/hardware firms -- opening them up to accusations by trolls. And, just like software startups who ignore trying to patent their own work, these design/hardware firms often do the same.

In a recent interview on Jerry Brito's Surprisingly Free podcast, Dan Provost, the guy behind two very successful design/hardware Kickstarter campaigns, talks about why his "accidental" startup didn't bother to file for patents, noting that it was just too expensive and the benefit of a patent on their products was minimal. At the same time, however, he did admit that they had already seen copycats of their two key products (the Glif iPhone mounting system and the Cosmonaut tablet stylus -- which I have and use all the time), but that it hadn't really impacted their business. I'd actually argue that Provost downplays some of the reasoning here. People who bought into Studio Neat's successful Kickstarter projects didn't just do so because they wanted to get the products in question (though that is a part of it), but also because they wanted to support Dan and his partner, Tom Gerhardt, in coming up with more awesome design products. When you see a copycat to a product you support via crowdfunding, people seem to rally around the original, rather than rush to the copycat.

It seems like basic social mores support the originator, rather than the pure copycat.

But that won't stop patent trolls from entering the space, and looking for "weapons" that they can use to effectively set up a patent tax on hardware innovations as well. Especially as we see more of these kinds of lean hardware startups, it seems inevitable that patent trolls will increasingly enter the space with broad patents designed to let lawyers cash in on the success of true innovators. So instead of just papering over the problems by carving out "software patents," how about we look closely at the real problems with the patent system and look to come up with real solutions that apply across the board. That means things like an independent invention defense, a better system for determining obviousness, actually getting input from those skilled in the art and (finally) stop all patent appeals cases from going through a single court that is subject to judicial capture by the patent bar.

Otherwise, we're just going to have to go back in a few years and deal with another bunch of patent trolling problems in hardware as well.

Filed Under: 3d printing, crowdfunding, hardware patents, patent trolls, patents, software patents

27 Comments

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12:35	Cisco, Motorola, Netgear Team Up To Expose Wifi Patent Bully (36)
Monday
13:43	Last Year, Google & Apple Spent More On Patents Than On R&D (31)
Friday
18:36	Chicago Taxi Companies And Riders Sue Uber For Targeting Cool Passengers (74)
Tuesday
09:26	Out With The Old, In With The New: How Innovation Has Completely Changed The Music Business (47)
Friday
11:32	Appeals Court Realizes Samsung Injunction Is For A Patent It Didn't Infringe On, Sends Case Back... (26)
Thursday
10:12	Former Copyright Boss: New Technology Should Be Presumed Illegal Until Congress Says Otherwise (95)
Tuesday
11:37	Sparkfun CEO Explains IP Obesity: Companies Who Rely Too Much On IP Flop (27)
Wednesday
17:00	DailyDirt: Unusual Human-Powered Transportation (12)
Monday
10:25	The Copyright Act Explicitly Says Disruptive Innovation Should Be Blocked (77)
Friday
18:32	Turning An Accidental Launch Into An Opportunity For Success (4)
Wednesday
09:27	The Math Says HBO Shouldn't Go Direct, But They Left Innovation Out Of The Equation (74)
Tuesday
13:30	Don't Downplay The Importance Of Tweakers In Innovation; Excerpt From 'The Knockoff Economy' (31)
Thursday
13:13	Disruption Starts With A Foot In The Door: Amazon's New Data Plan Is Limited But Potentially Revolutionary (38)
Wednesday
12:38	Why Open Doesn't Conflict With Money... But Often Appears To (8)
Tuesday
22:03	High Tech Jobs Are Important, Growing... And Everywhere (15)
12:31	Forget The Death-Star Anti-Mosquito Lasers, Here's How Nathan Myhrvold Can Help Tackle Malaria -- And Improve His Image (36)
Monday
12:00	Some Thoughts On An Innovation Agenda (9)
Friday
10:01	How Copyright Has Driven Online Streaming Innovators Insane (27)
Tuesday
19:54	Made In America: Foreign Entrepreneurs Who Will Compete Against Us (32)
17:00	DailyDirt: One Small Step For A Man... (28)
10:52	Court Says You Can't Innovate If It Would Negatively Impact NBC's Business Model (41)

from the oh-come-on dept

from the innovation-not-allowed dept

from the is-anyone-at-the-uspto-awake? dept

from the the-point-is-way-over-yonder dept

from the a-proposal dept

from the share-and-share-alike dept

from the one-way-out dept

from the just-saying dept

from the first,-do-no-harm dept

from the they're-coming... dept

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