Editore"s Note
Tilting at Windmills

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March 22, 2006
By: Zachary Roth

MORE ON THE PATENT OFFICE....Not to belabor this whole patent business, but it's good to see the New York Times get into the game today, with an editorial that hits pretty much all the key points.

Ironically, the Times also has a news story today that offers a near-perfect example of the harm that over-broad patents can do. A new study suggests flaws in a test for mutations in the BRCA1 and BRCA2 genes mutations that have been linked to breast cancer. But a Utah bio-tech company called Myriad Genetics holds the patents on that test, and on any testing for BRCA1 and 2. So without Myriad's permission, no one can develop a more accurate test (or a cheaper one Myriad charges about one third again as much as some university researchers used to). And frequently that permission isn't granted: several researchers told me they'd given up studying the BRCA genes after getting cease-and-desist letters from Myriad.

What the Times doesn't mention is that the European patent office has revoked Myriad's patents, concluding, essentially, that Myriad's contribution to the ongoing research which ultimately allowed them to isolate the BRCA genes was not significant enough to merit giving them monopoly rights to any use of the genes. Europe's patent laws are less business-friendly than ours, but some American experts argue that the US patents are equally faulty. So the patents should perhaps have never been granted at all. If they hadn't, we might be catching more cases of breast cancer.

Zachary Roth 2:44 PM Permalink | Trackbacks | Comments (40)

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Comments

Not to belabor this whole patent business, but it's good to see the New York Times get into the game today, with an editorial($) that hits pretty much all the key points.

Yeah. Let's not. Next real topic.

Posted by: Jeff II on March 22, 2006 at 2:52 PM | PERMALINK

Zachary, you fell right into the trap: it is false that Europe's patent laws are less business-friendly, because over-eagerness to grant patents harms business, it does not help.

Talk to most companies' CEOs, and they'll quickly admit that they are going for all the patents they can get to defend against other companies. Drug companies are the only ones really benefiting from patents.

Posted by: Joe Buck on March 22, 2006 at 2:55 PM | PERMALINK

If you own the patent for breast cancer aren't
you liable for the damages of breast cancer?

Posted by: utahguy on March 22, 2006 at 3:10 PM | PERMALINK

If we want to talk about patent laws being unfriendly to business, try this one.

Recent Supreme Court rulings have given states the ability to take over patents and trademarks, with no opportunity for redress by the wronged party. The rulings -- Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank and College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd. involved federal litigation between a savings bank and the state of Florida concerning the bank's patented college investment plan. The bank claimed violations of federal patent and trademark law. The Supreme Court threw out both claims, ruling that Congress exceeded its constitutional authority when it authorized private suits against states for patent infringement and Lanham Act violations.
The sharpest point of debate was the majority's contention was that "the scope of the states' immunity from suit is demarcated not by the text of the [Eleventh] Amendment alone but by fundamental postulates implicit in the constitutional design." In other words, the text of the constitution does not mean what it says.

Florida has demonstrated that state government does not mind helping itself to the intellectual property of others. How much money could a state university make by absorbing a biotech or a software patent? Money can be a great inducement.

The Court went on to say that " a States infringement of a patent, though interfering with a patent owners right to exclude others, does not by itself violate the Constitution." and to say that state court remedies are adequate. Does anyone believe that state courts will protect them from the people who put the state judges in power?

By the way, copyright law stands on the same constitutional ground as patent and trademark law. Anyone using copyrighted material may soon see the state of origin, or even other states, assuming the use of that material. Any business and individual who has intellectual property should be concerned that its patented or trademarked (and by implication, copyrighted) materials may be simply taken by a state government, as it was in Florida.

Posted by: zak822 on March 22, 2006 at 3:32 PM | PERMALINK

Your employ of "ironically" is ironic.

Posted by: Michael Roetzel on March 22, 2006 at 4:05 PM | PERMALINK

Nevertheless, unlike yahoos like Jeff II, I am enjoying your patent blogging.

Posted by: Michael Roetzel on March 22, 2006 at 4:09 PM | PERMALINK


Are you a patent expert or attorney? I understand that there is a "research" exemption that applies to university type research.

Also, I would imagine that the researchers you spoke to would be the first to file for patent protection if they discovered something. Without patents, there is no incentive for anyone to spend tons of time and gobs of money on research.

Posted by: BC on March 22, 2006 at 4:15 PM | PERMALINK

I am also enjoying the patent blogging. The issue is important. Too often we overlook the bread and butter damages resulting from the poorly understood "business friendly" legislation purchased by lobbyists by their clients. As has been known for a long time, it is far too easy to obtain a patent under US law and procedure. Actually the poster who said that tightening patent law would be good for business is correct.

Posted by: Ron Byers on March 22, 2006 at 4:19 PM | PERMALINK

"patented college investment plan"

How the heck can a college investment plan be patented? Sounds like they would have lost on the facts, never mind the constitutional issues.

Posted by: Urinated State of America on March 22, 2006 at 4:20 PM | PERMALINK

BC,

You confuse the possiblity of obtaining a patent (protected by the US constitution) with the rules and procedures for obtaining a patent. Before anybody should be issued a patent he should really demonstrate that his discovery or contribution is worthy of a patent, and that the patent he is given is not overly broad. A lot of patents are issued that are really silly. They get in the way of real discoveries.

Posted by: Ron Byers on March 22, 2006 at 4:23 PM | PERMALINK

The thing that is most annoying about complaints regarding patents is the complete lack of balance in the discussion, and the NY Times editorial is no exception.

There's nothing easier to do than to come up with examples of patents that seem too "obvious" or which are being used to "extract" money from others. But those types of problems have been around since the very beginning of the patent system; such things have always been in dispute.

The government is granting a long term monopoly over an idea -- how could this NOT fail to create some situations of apparent inequity? It's just very hard to know in general how such boundaries are to be drawn, and where they are to be granted.

But a few examples of evident unfairness hardly constitute legitimate arguments against the system per se. The law is, and always has been, a blunt instrument, and patent law is splendid instance of that point.

The only real objection would be one in which one could argue that sytematically patents in a given area or of a given type really DO damage innovation, rather than encourage it. I have never seen a convincing argument that this is really going on.

Take even the example of RIM having to pay NTP over $600M. Has RIM really been prevented from innovating? If the general effect of that action is that other large companies now start to care much more about NOT infringing on others patents, or at least to compensate those who pioneered certain ideas, is that bad for innovation?

What would a world in which there were NO patents in, say, software look like? What would prevent the likes of Microsoft or Oracle (who hate patents, of course) from stealing, with no inhibition whatever, any and all ideas in software that someone else has innovated and invested in?

It's always important to see the other side of the case when it comes to patents, because if they are important, and I certainly believe they are, their importance ONLY becomes evident in the larger picture, NOT in every single instance in which a patent is granted.

And it is THIS that makes the NYTimes rant so very stupid.

Posted by: frankly0 on March 22, 2006 at 4:36 PM | PERMALINK
You confuse the possiblity of obtaining a patent (protected by the US constitution)

The possibility of obtaining a patent is not protected by the US Constitution. The US Constitution allows, but does not direct, congress to allow exclusivity to inventors. There is no protected right there: Congress has a limited authority to create a statutory privilege for a Constitutionally defined purpose.

Posted by: cmdicely on March 22, 2006 at 4:52 PM | PERMALINK

cmdicely, technically you are correct.

Article 1 section 8 of the United States Constitution provides that the congress has the right to pass laws "(T)o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries...."

Patents are protected constitutionally, but the constitution specifically provides that the congress has the right to pass patent laws giving patents to inventors.

I stand convicted of imprecision. Again. A problem that comes from trying to work while I am posting.

Posted by: Ron Byers on March 22, 2006 at 5:10 PM | PERMALINK

I left out the word "not" in the phrase "not protected constitutionally." Sorry.

Posted by: Ron Byers on March 22, 2006 at 5:11 PM | PERMALINK

"What would prevent the likes of Microsoft or Oracle (who hate patents, of course) from stealing, with no inhibition whatever, any and all ideas in software that someone else has innovated and invested in?"

Off hand, trade secret protection, copyright, and contract law. Most software comes in object code form. The all important source code is often hidden from end users. In the real world the only folks with access to source code are the folks who have contactually agreed not to disclose source code--that is who have agreed to protect a trade secret. Note there are exceptions where the source is licensed under an open license of some sort (think Linux.)

Posted by: Ron Byers on March 22, 2006 at 5:20 PM | PERMALINK
Off hand, trade secret protection, copyright, and contract law. Most software comes in object code form. The all important source code is often hidden from end users.

Copyright protects expression, not ideas, and it is often possible to reconstruct how something works from object code. (Though, of course, contract law can have some use in preventing that, though if someone else other than the original purchaser gets a hold of the code, that becomes less useful.)

Now, a principled argument could be made that the specific expression/implementation should be protected but the broader concept shouldn't, though why software would be special in this respect would need to be explained, unless the argument was against patents in general.

Posted by: cmdicely on March 22, 2006 at 5:54 PM | PERMALINK

Gee, it's funny the NY Times doesn't complain about making obscene amounts of money from copyright monopolies. According to their truncated version of the Constitution, intellectual property is for the benefit of society. Copyrights HURT the dissemination of knowledge. How much better we would be if everybody could copy and distribute the NY Times.

"Our nation's founders considered intellectual property important enough to include in the Constitution, but did not establish the system for the sake of the inventor. It exists for the sake of society, or, as it says in the Constitution, "to promote the progress of science and the useful arts."

Posted by: Myron on March 22, 2006 at 5:56 PM | PERMALINK

For another angle on the patent issue, check out Merrill Goozner's post on PhRMA's patent issues. Any conversation about patent controversies that doesn't deal with phrma's serial pseudo-patenting is missing a big part of the story.

http://www.gooznews.com/archives/000300.html

Joe Buck: "it is false that Europe's patent laws are less business-friendly, because over-eagerness to grant patents harms business, it does not help."

It depends on which businesses you're talking about. Some established businesses would certainly benefit from more power to enjoin competition; those who would benefit from a more free exchange of ideas are likely to be more dispersed (and have fewer lobbyists).

Posted by: Dave Meyer on March 22, 2006 at 6:06 PM | PERMALINK
Off hand, trade secret protection, copyright, and contract law. Most software comes in object code form.

Look, the MO of Microsoft has ALWAYS been simply to write its own source code -- for Christ's sake, they have a gazillion programmers, and they have to have SOMETHING to do.

The problem is that, absent anything resembling real protection of ideas, which patents do grant, there is NOTHING to prevent them from copying any useful bit of software they might ever encounter.

In other words, they simply sit back, wait for someone to innovate and pioneer a market, and they simply copy, functionality for functionality, every single thing the successful, innnovative software does.

At least Microsoft has, to date, felt SOME obligation to tweak things differently here and there to mask their copying, lest they get in legal hot water due to patents -- which in the past has caught them in very large judgments against them.

Please tell me how removing ANY real protection of ideas improves this situation, and enables MORE innovation, not LESS?

Again, nobody is more dead set against patents than the most notorious and outrageous pilferer of innovative ideas of all, namely Microsoft.

Funny bedmate you've got there, you know?

Posted by: frankly0 on March 22, 2006 at 6:28 PM | PERMALINK
Look, the MO of Microsoft has ALWAYS been simply to write its own source code -- for Christ's sake, they have a gazillion programmers, and they have to have SOMETHING to do.

Well, no, inasmuch as its done that, its more of a recent phenomenon. Microsoft established its dominance, in many markets (particularly the OS market) by simply buying companies or products that existed, and then applying its marketing acumen to them.

The problem is that, absent anything resembling real protection of ideas, which patents do grant, there is NOTHING to prevent them from copying any useful bit of software they might ever encounter.

This is, of course, true, of Microsoft and everyone else in the market.

In other words, they simply sit back, wait for someone to innovate and pioneer a market, and they simply copy, functionality for functionality, every single thing the successful, innnovative software does.

Which, in fact, is pretty much the way Microsoft works now, with tweaks added to guarantee that the original won't interoperate with the new Microsoft standard. Patent, copyright, contract law, and trade secret protection, all combined, haven't really restrained Microsoft from this tactic.


At least Microsoft has, to date, felt SOME obligation to tweak things differently here and there to mask their copying, lest they get in legal hot water due to patents -- which in the past has caught them in very large judgments against them.

No, they generally tweak things to assure that people are forced to ship between the version Microsoft bundles with its already-dominant technology and its competitors. And there have been very few judgements against Microsoft for any reason that could be described as very large in context (i.e., given Microsoft's resources), though several may have been very large, from the perspective of anyone else in the market.


Please tell me how removing ANY real protection of ideas improves this situation, and enables MORE innovation, not LESS?

I'm not sure why you are asking me to explain an argument that I haven't made. And I really don't care why, I'll just decline the request.

Again, nobody is more dead set against patents than the most notorious and outrageous pilferer of innovative ideas of all, namely Microsoft.

Dead set against it? I don't think so. I mean, they stated, in testimony on the issue, that " we believe that the existing laws in the form of the statute and the regulations and the case law provide both an adequate and an appropriate framework in which to assess the patentability of software related inventions" and "While copyright has been and is an important and effective tool for the software industry, that does not mean that there is no role for patent protection. Indeed, there is a large and growingly important role for patent protection." Compared to the people seeking to end all software patents, that doesn't sound like they are dead set against them, at all.

I mean, we're talking about the company that filed a patent for emoticons. I think there are clearly lots of people more dead set against software patents than Microsoft.

Funny bedmate you've got there, you know?

It is amusing that you've made up false positions for both Microsoft and me in order to enable this spurious attempt at guilt by association.


Posted by: cmdicely on March 22, 2006 at 7:46 PM | PERMALINK

US patent law has no technical requirement. EPO law has but rules were perverted by case law. So the best solution for the US patent system would be to introduce a technical requirement and to join the EPC on the long term. The EPO system can be fixed. For the US system things are more complicated, esp. without a technical requirement.

Posted by: Andre on March 22, 2006 at 8:18 PM | PERMALINK

cmdicely,

Does it even occur to you that I wasn't even responding to your post, but to the post from which I quoted?

Posted by: frankly0 on March 22, 2006 at 9:05 PM | PERMALINK

Look, a basic point with regard to Microsoft is that they WOULD not have achieved the complete dominance they have had people had effective patents over the ideas in the software Microsoft copied.

In any case, your understanding of how Microsoft achieved its dominance is deeply confused. If you don't think that copying had everything to do with how it lay hold of the spreadsheet, word processing markets, what can I say to you? Do you imagine that patents could not have protected the innovations the pioneers of those markets introduced?

Netscape could have patented its browser up the gazoo -- but the reigning idiocy at that time was that patents were irrelevant, since they had the lead, and everything ran on "Internet time", so that they didn't have to worry about Microsoft catching up. Until, of course, Microsoft caught up.

Microsoft is, in effect, what happens when patents don't apply to an entire industry: copiers with preexisting market mass win. Really, what's to stop them?

Posted by: frankly0 on March 22, 2006 at 9:14 PM | PERMALINK

"Intellectual Property" is a fruadulent phrase, a genuine piece of Orwellian new-speak.

It's the essence of the worst that the legal system can produce, the kind of thing that makes it good to hate lawyers.

There *is* no such thing as "Intellectual Property." America has patents, copyrights and trademarks, all are merely legal contrivances.

You can't own an idea. But you can get the government to oppress others who want to use an idea.

There might be a bit of good in extremely limited patent and copyright laws, but the current regime is choking innovation, not supporting it.

Better to toss out all these laws rather then have the ones we have now.

( Trademark is a different story. It's mostly about preventing impersonation, a neccesary and reasonable goal. Even so, these days such phrases as "Where do you want to go today?" have been trademarked, which is a perversion of the main point. )

Posted by: Archie on March 22, 2006 at 9:36 PM | PERMALINK

How is a free market helped by Government supported monopolies?

It isn't. Monopolies kill free markets.

"If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of everyone, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density at any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property." - Thomas Jefferson

Posted by: Frank H. Penston on March 22, 2006 at 9:43 PM | PERMALINK
"Intellectual Property" is a fruadulent phrase, a genuine piece of Orwellian new-speak.

No, its not. Its a legitimate term, which encompasses several related types of rights created by law.

People who think "Intellectual Property" isn't real don't understand what "property" is.

There *is* no such thing as "Intellectual Property."

Yes, there is.

America has patents, copyrights and trademarks, all are merely legal contrivances.

Just like real, tangible personal, and intangible personal (other than "intellectual") property are legal contrivances.

You can't own an idea. But you can get the government to oppress others who want to use an idea.

"Oppress" is a loaded word, but all property interest are nothing at all except the legal privilege to have the government enforce your ability to prevent others from using something. That's what it means to own something. So, what you've just said amounts to "You can't own an idea. But you can own an idea."

There might be a bit of good in extremely limited patent and copyright laws, but the current regime is choking innovation, not supporting it.

There may (as I've said before) be legitimate arguments that this is the case, though merely asserting it will not suffice, and demonstrating that you don't understand what it means to "own" something before you assert it doesn't gain you any credibility.

Posted by: cmdicely on March 23, 2006 at 12:00 AM | PERMALINK
Does it even occur to you that I wasn't even responding to your post, but to the post from which I quoted?

I have no idea why I read that as a response to me, honestly. You have my apologies.

Posted by: cmdicely on March 23, 2006 at 12:02 AM | PERMALINK
Look, a basic point with regard to Microsoft is that they WOULD not have achieved the complete dominance they have had people had effective patents over the ideas in the software Microsoft copied.

Since Microsoft didn't acheive dominance primarily by copying "ideas" but by buying existing software, making clever marketing deals (particularly, the deal that made MS-DOS the standard operating system on PCs), and then leveraging the market power they had from dominance in certain markets -- particularly the OS market -- to extend their dominance to related fields, I don't see that as being a particularly credible argument.

In any case, your understanding of how Microsoft achieved its dominance is deeply confused. If you don't think that copying had everything to do with how it lay hold of the spreadsheet, word processing markets, what can I say to you?

Well, you could say what they copied, rather than asking dumb-ass rhetorical questions, and then you could go on to say what would prevent them from leveraging market power the way they did to extract the interface license from Apple in 1985 that enabled them to create Windows 1.0, and to do similar things to other companies thereafter.

IP protections (whether patent, copyright, or whatever) aren't all that useful against a company that has the kind of market power Microsoft established through purchasing and deal-making -- things IP doesn't stop -- and can therefore extract concessions contractually from others if they wish to play anywhere connected to their main market.

Netscape could have patented its browser up the gazoo

Even if they could have and did (and patents take time and money, which, when you have limited resources available, means less time and money devoted to other tasks, so its not clear that they could have and still gotten as much of a technical lead early on), that wouldn't have stopped Microsoft from doing exactly what was the core of their dominance: licensing from Spyglass, who licensed from NCSA, the core of Mosaic, the original browser that Netscape sought to displace, making their own browser, bundling it with Windows, and exploiting their size, OS monopoly, and existing market relationships to unsear Netscape.

Not to mention that Netscape did patent many features of the browser and related technologies -- including cookies, SSL, etc.

(And, indeed, where Microsoft did steal technology for IE, it stole freely from patented technology, which is why it ended up, when a judgement was finally reached in the Eolas/UC suit against Microsoft in 2003 for its actions early in the browser wars, paying over $500 million in damages -- which Microsoft could well afford.)

The reason patents were mostly irrelevant is because the market realities in "Internet time" were going to be long settled and irreversible by the time any patent got issued (a process doesn't happen all that quickly -- the relevant license was issued in 1998, despite having been applied for in 1993 or 1994) and then any disputes got resolved in court (a process which can take even longer.)

Microsoft is, in effect, what happens when patents don't apply to an entire industry: copiers with preexisting market mass win. Really, what's to stop them?

Except, of course, patents do in fact apply in the software industry, and Microsoft dominates anyway. Why? Because patents are a slow force which creates uncertainty, which works in favor of the largest and most diversified players in the market for whom the involved risk isn't as potentially catastrophic.

Posted by: cmdicely on March 23, 2006 at 12:48 AM | PERMALINK

I want to echo what cmdicely just said. Patents are a slow force that create uncertainty and work in favor of the largest and most diversified players in a market. They do apply to the software industry, but they have been secondary to the other kinds of IP protection I mentioned above because the software market has evolved very, very rapidly.

My complaint about the patent process doesn't concern the software designer who comes up with something truly novel, it concerns the guy who applies for a patent for some big idea that is truly obvious to those in the field. The case I was involved in about a decade ago involved a patent issued for the very big idea of using a computer program to store a particular class of records. Well duh, how obvious was that? The fact that it had been done for at least a decade before the patent holder claimed to have had the idea was obvious to anybody who knew anything about the field. That is why the patent was defeated with pathetic ease and for not much money. The job of the patent office is to sort the wheat from the chaff. It can't do its job without a staff of highly qualified experts reviewing the submitted works. Staff deficiencies seem to be a constant problem with our patent office.

Posted by: Ron Byers on March 23, 2006 at 8:39 AM | PERMALINK

To build on Ron's point, a bit: if our Patent Office had an adequate staff of highly-qualified experts, so that effective and meaningful review of applications would occur fairly expeditiously -- well, then, it would be less slow, produce less uncertainty, and end up demanding less resources for those "in the right" to pursue or defend meritorious claims, and thus do less to favor the biggest, most diversified players in the market.

Simple consideration of the nature of the interests involved and the role of money in our political system would reveal why the problem is persistent.

Posted by: cmdicely on March 23, 2006 at 10:10 AM | PERMALINK

cmdicely,

Look, one of the big problems with the software industry, and the major reason that Microsoft can get away with it routine copying (really, if you need examples of such copying, how can you pretend to speak with ANY knowledge of the industry? No fact of industry lore is better known than that of Microsoft's blatant copying), is precisely because the industry knows, and Microsoft knows, that it can get away with copying, because of inadequate protections against stealing innovative ideas.

Suppose that there had been a long history in the software industry of software companies, or their applications being closed down after stealing someone elses idea, even if that were to occur a number of years after the stealing took place? THAT would start to constitute a deterrent to software companies stealing ideas today, or for customers to adopt those stolen applications. That is the way that the patent system has always worked in other industries.

Yes, Microsoft could have stolen all the browser ideas from Netscape (which certainly had any number of absolutely critical and patentable IMPROVEMENTS on the browser they originally licensed). But how many customers would adopt Microsoft's browser if they knew someday it might be taken away from them via an injunction? While people talk as though it's an outrage that customers might be denied the use of an application they have been using for years via an injunction -- but it is the threat of such injunctions that should prevent the adoption of effectively stolen technology in the first place. Again, that's how the patent system has ALWAYS worked. There's no way around the use of injunctions as absolutely critical to the prevention of theft of ideas. A few prominent examples of such injunctions in the software industry would do wonders to instill respect for the principle that stealing other people's innovations is a losing strategy. In my opinion, THAT is indeed what the software industry needs.

And the alternative is exactly what we see in the software industry. We have one dominant player, Microsoft, which knows perfectly well that it can steal any idea it wants with basic impunity. It has largely escaped the real deterrent to theft here: closing down applications due to injunctions. The point is, the penalties against theft are too rare, too small, and too much delayed by our patenting and legal processes. THAT is the real problem here.

And the Microsoft case is highly instructive regarding what happens to innovation in an area where patents don't effectively apply. Namely, all the money goes up the food chain to the biggest player of all, who can copy every new idea with impunity and make all the real money that is to be made with the novel application.

Microsoft is essentially a vacuum cleaner for all the ideas and related profits in the industry. It sits back, waits for someone else to come up with an idea, quickly copies it AFTER it becomes a clear success, uses its market power to dominate the market for the application, and then pulls out the vast majority of the profit from that application.

And what does Microsoft DO with money? Absolutely NOTHING that contributes to innovation in the industry. Yes, it spends money on R&D, but can anyone name a single basic novel idea that Microsoft has produced, even to this very late date in the industry? There is an appalling emptiness in the "innovations" issuing from Microsoft. One keeps hearing that its labs are coming out with something important -- it's just around the corner!-- but NOTHING of substance has ever come from them, EVER.

Tell me, please, how this is a good situation if you want to promote innovation? Even ignoring the usefulness of injunctions per se, if, instead, some of the money were simply spread across the industry via large royalty payments imposed by patent settlements, THAT would be a major improvement over what we see today. Today, we have one single dominant paradigm: the Microsoft mass of applications. Not a single innovation has come from that paradigm, for all its money. If patents were granted and enforced as they should be, that is how the money would be distrubuted. Finally, many flowers would bloom; there would be competing paradigms.

Somehow, there are those of us who think that a central governing body for all innovations, a body that really has no investment in innovation in any case, is NOT the best way to promote innovation.

And yet that, in truth, is what those who disparage patents in the software industry are really supporting whether they know it or not.

Posted by: frankly0 on March 23, 2006 at 11:42 AM | PERMALINK

Oh, and BTW, just to get another jab in, can anybody come up with a single basic innovation that the vaunted Open Source community has come up with? Certainly the most prominent examples I can think of are simply cases of people doing the obvious many years after the innovation -- e.g., Linux (even the name copies Unix), and gcc (like there weren't other C compilers already?).

Open Source, despite its coolness, is, as best I am aware of, almost always the Johnny Come Lately to innovative ideas, seeking to copy what others have innovated and settled on as important.

To this day, true innovators form companies, and try to make money.

How interesting it is that the Open Source community and Microsoft, despite their much ballyhooed opposition, always find themselves on the same side of the fence when it comes to patents.

Really, Open Source, despite its many irritating pretensions, is as much a basic enemy to innovation as is Microsoft.

Posted by: frankly0 on March 23, 2006 at 12:01 PM | PERMALINK

No, what I asked for was examples that would have been stopped by patents. Microsoft copies lots of things, many of which are patented. (Of course, on the timescale the patent office operates on, many of those patents are granted long after Microsoft has done the copying.

Everyone copies things in the software industry.

is precisely because the industry knows, and Microsoft knows, that it can get away with copying, because of inadequate protections against stealing innovative ideas.

Wrong. They know they can get away with copying not because there aren't protections, but because the expense and time of working the system of protections means the system of protections strongly favors the biggest, most diversified players.

I.e., between Microsoft and anyone else, Microsoft.

Suppose that there had been a long history in the software industry of software companies, or their applications being closed down after stealing someone elses idea, even if that were to occur a number of years after the stealing took place?

That would be a major deterrent for entering the industry, given that patent disputes are very often not clear cut, even to experts.


THAT would start to constitute a deterrent to software companies stealing ideas today, or for customers to adopt those stolen applications. That is the way that the patent system has always worked in other industries.

Its the way the patent system works in every industry, including the software industry, assuming that the theft is the whole of the product (rather than a small component of it) and the stolen product is the major part of the stealing companies business (rather than, itself, a free component in one of many product lines.)

The software industry is not a special lawless zone in this respect.

Microsoft is essentially a vacuum cleaner for all the ideas and related profits in the industry. It sits back, waits for someone else to come up with an idea, quickly copies it AFTER it becomes a clear success, uses its market power to dominate the market for the application, and then pulls out the vast majority of the profit from that application.

It does a lot of that, though it does also do its own long-range research and innovation, too. Its no different than the giant players in many other industries in that respect. If you don't think that, e.g., Monsanto or parallel players in other non-software fields don't do the same things, well, you aren't paying attention.

And what does Microsoft DO with money? Absolutely NOTHING that contributes to innovation in the industry. Yes, it spends money on R&D, but can anyone name a single basic novel idea that Microsoft has produced, even to this very late date in the industry?

Well, as a big backer of software patents representing protection of real innovation, you ought to give some credit to Microsoft's stack of at least 5,000 US and over 7,000 total patents.

Or are you arguing that software patents really are too easily granted to protect non-novel ideas and stifle innovation? I thought that was the position you were arguing against, but if Microsoft has never made any real innovations, and has been issued an enormous stack of patents...

Somehow, there are those of us who think that a central governing body for all innovations, a body that really has no investment in innovation in any case, is NOT the best way to promote innovation.

A "central governing body for all innovations" that "has no investment in innovation in any case"? You mean, like the modern Patent and Trademark Office?

Posted by: cmdicely on March 23, 2006 at 12:06 PM | PERMALINK

Just to make one more point about Microsoft and injuctions.

From time immemorial, one of the major points Microsoft has been able to make to induce customers to use its applications is that they can be sure that Microsoft would always be around to support that application, that customers would never lose functionality if they went with the Microsoft product -- it was entirely "safe", unlike the competition, which Microsoft might well drive out of the business.

The effect of the threat of injunctions would be precisely to remove that very effective argument from the Microsoft arsenal. Customers would have to give due weight to the issue of WHO innovated an application BEFORE they buy into it, lest they be denied the application later on down the line.

Again, how could that but PROMOTE innovation?

Posted by: frankly0 on March 23, 2006 at 12:12 PM | PERMALINK
Customers would have to give due weight to the issue of WHO innovated an application BEFORE they buy into it, lest they be denied the application later on down the line.

Which, given that many customers do not have the resources to search for and evaluate potential patent claims against vendors prior to making every technology purchase (or use for free technology that may become a dependency, even if it is not purchased) decision, simply increase uncertainty and risk in the marketplace, and slows the pace of adoption of new technology, reducing the ability of anyone -- including genuine innovators -- to make money from innovations.

Thus, slowing innovation.

Posted by: cmdicely on March 23, 2006 at 12:26 PM | PERMALINK

cmdicely,

Again, you focus on trivial objections, unable apparently to see the larger picture.

Yes, Microsoft has a bunch of patents. Nothing is easier in the world to come by than a basically useless patent. If Microsoft wants to get a large number of patents so that it can appear to the world as if it's actually innovating, all it has to do is direct its tens of thousands of employees to patent whatever they can, providing incentives to do so. Trust me, EVERYBODY could think of a patentable idea. What everybody CAN'T do is think of an IMPORTANT patentable idea -- and, it would appear, that is Microsoft's problem.

I simply repeat: name a single BASIC innovation that Microsoft has introduced, for all the umpteen billions of dollars in pure profit (from other people's innovations) it has pulled out of the market. THAT is the test of whether that money is being used to good effect, or simply being wasted, I should think.

I often contrast Microsoft to IBM in its glory years. IBM was likewise a "safe" choice for technology for decades, and the dominant player. But at least the Watson Research Lab actually generated some important new ideas -- e.g., relational databases.

Where is there anything comparable coming out of Microsoft? It's actually astonishing how completely uncreative they have been. It seems to be where ideas go to die. Even when they hire innovators, no further innovation seems to take place. I honestly simply don't even understand how an institution can manage to waste so many resources.

Posted by: frankly0 on March 23, 2006 at 12:32 PM | PERMALINK

Again, you focus on trivial objections, unable apparently to see the larger picture.

I don't think its trivial to point out that your argument against the idea that software patents are too easily granted to non-novel ideas and, thereby, stifle innovation is inconsistent with your argument that Microsoft has never introduced a novel idea together with the fact that Microsoft has a huge stack of software patents.

Absolutely, fundamentally contradictory.

Yes, Microsoft has a bunch of patents. Nothing is easier in the world to come by than a basically useless patent. If Microsoft wants to get a large number of patents so that it can appear to the world as if it's actually innovating, all it has to do is direct its tens of thousands of employees to patent whatever they can, providing incentives to do so. Trust me, EVERYBODY could think of a patentable idea. What everybody CAN'T do is think of an IMPORTANT patentable idea -- and, it would appear, that is Microsoft's problem.

I would suggest that if there is a distinction between "important patentable ideas" and "patentable ideas", then the idea that patents are granted to easily to non-novel and/or non-useful ideas is, clearly, true.

I simply repeat: name a single BASIC innovation that Microsoft has introduced, for all the umpteen billions of dollars in pure profit (from other people's innovations) it has pulled out of the market. THAT is the test of whether that money is being used to good effect, or simply being wasted, I should think.

Certainly. Basic research is the only productive use of money; making the results of basic research into useful products is a complete waste of time and money, with no value to the consumer.

often contrast Microsoft to IBM in its glory years. IBM was likewise a "safe" choice for technology for decades, and the dominant player. But at least the Watson Research Lab actually generated some important new ideas -- e.g., relational databases.

Where is there anything comparable coming out of Microsoft?

Well, it takes quite a while for these things to be recognized, often, and Microsoft Research hasn't been a big focus until comparatively recently, as (as I've noted previously) Microsoft's main approach to research has been purchasing innovative technologies outright, or licensing them, and compiling them into products.

You know, the opposite of being "a central governing body for all innovation".


Posted by: cmdicely on March 23, 2006 at 12:54 PM | PERMALINK

Franky0 cmdicely,

Obviously cmdicely knows a thing or two about patent law, but do either of you know anything at all about the software industry?

Traditionally patents have been the least important IP protection in the software industry because software has the shelf life of a butterfly. By the time you have obtained that wonderful patent you think is so important, the entire industry has run off in a totally different direction. Microsoft might own 7000 patents, but I would bet fewer than 50 have any real present value, and then they are only of marginal value at best. The rest Microsoft holds to protect itself against others. There are some big idea patents that have real value, but they are few and far between.

By big idea patents I mean patents that cover a big, original concept. In the software industry, most of those big original ideas are, for one reason or another, not subject to patent protection. Charles Babbage and Johnny Von Newman didn't protect their ideas. Lots of the other big ideas were pioneered by the US government or some other public institution and are in public domain.

Franky0 you ask a question about an opensource innovation. How about Apache?

Posted by: Ron Byers on March 23, 2006 at 1:31 PM | PERMALINK

Ron,

I dunno. Certainly there were webservers before Apache (A patchy webserver). I don't know any part of it that was truly innovative.

From a business perspective there is a big problem with opensource - how can you prove beyond a doubt that nobody in the future will ever claim rights to the software.

And, on the Microsoft topic - just yesterday I read an article where Gates was lobbying congress to increase the number of technical visas.

His justification was that he had foreign geniuses all ready to come and work in his research department and they couldn't get a visa.

My first thought was "what research has Microsoft ever done?" Maybe that annoying paperclip thing was the result of 'research?'

My second thought was that, with 65K visas a year he is claiming he can't get a handful of geniuses into the country? Yeah, pull the other one.

Posted by: Tripp on March 23, 2006 at 2:02 PM | PERMALINK




 

 

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