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Category: Patents


Yale Law Professor’s Attack on Patents: A Comedy, Farce and Tragedy All Rolled into One

An article on Cato Unbound entitled, “What’s the Best Way to Fix the Patent System’s Problems?” by law professor Christina Mulligan, argues for two different solutions of what she perceives are problems with software patents.  One solution advocated by Eli Dourado is to eliminate all software patents (See CATO and Mercatus Center: Another Flawed Study on Patents).  The other solution, advocated by John F. Duffy, is a more rigorous application of the obviousness standard.  Ms. Mulligan comes down on the side of Eli Dourado’s solution of eliminating patents on software.

What is amazing is that Ms Mulligan never even addresses the inherent contradiction that if you are going to eliminate patents of software you have to eliminate all patents on electronics.  Of course this may be because Ms. Mulligan does not have a technological background, she is not a patent attorney nor is she legally or factually competent to be a patent attorney.  Software is a way of wiring an electronic circuit.  Any invention implemented in software executed on a computer can be implemented in hardware (i.e., an electronic circuit) as any competent electrical engineer knows.  In fact, this is exactly what happens when software is executed, it is converted into a series of voltage levels that open and close switches in a general purpose electronic circuit called a computer to create a specific electronic circuit.

Ms. Mulligan quotes the clearly incorrect statement that:

Many software patents are merely mathematical formulas or abstract ideas and should not be considered patentable subject matter because they remove too much “raw” material from the public domain.

This statement confuses two separate points.  One point is that many software patents are merely mathematical formulas or abstract ideas.  The second point is that software patents remove too much raw material from the public domain.  The idea that any software patent is a mathematical formula is complete and obvious nonsense to anyone who has worked with computers.  While it is true that software often uses mathematical formulas, so do electronic circuits, radar, rockets,  mechanical systems, chemical processes, in fact almost every area of technology.

Ms. Mulligan does not define what she means by an abstract idea.  In one sense every invention in the history of the world is an abstraction.  Inventions define a class of things.  For instance the invention of the incandescent light bulb is not a specific incandescent light bulb, but the class of these objects.  The only logical definition of an abstract idea is “a thought or conception that is separate from concrete existence or not applied to the practical”.  Every invention that meets the requirements of 35 USC 112 first paragraph is not an Abstract Idea, since this section requires that the invention be described in a manner so one skilled in the art can practice the invention.  Something that can be built and used (practiced) is concrete and applied, therefore it is not an abstract idea.  Clearly software patents are not abstract ideas because they are concrete and applied to a problem of life.  If they did not solve a problem of life, then no one would care, because no one would want to practice their invention.

The second point is that they remove too much raw material from the public domain.  This is a bald statement without any support.  In fact, patents do not remove any material from the public domain.  They secure the property rights of an inventor to their invention that did not exist before they created the invention.  To suggest that this removes anything from the public domain would make even the most strident Marxist blush.

Ms. Mulligan attempts to use Ayn Rand in support of her position.

Even Ayn Rand sidestepped suggesting a length for intellectual property terms, stating that if intellectual property “were held in perpetuity . . . it would lead, not to the earned reward of achievement, but to the unearned support of parasitism.

Of course she forgets to mention that Rand stated “Patents and copyrights are the legal implementation of the base of all property rights: a man’s right to the product of his mind.”[1]  You can see from this statement that it is very unlikely that Ayn Rand would have supported Ms. Mulligan’s position.

More importantly, all property rights are term limited.  A dead person cannot own property.  Property is a legal (moral) relationship between a person and something.  Once the person is dead they cannot have a legal relationship to something on this Earth that would be a contradiction.  There is only a question of what happens to property relationship when someone dies.  But no property rights go on forever.

Ms. Mulligan also ignores the obvious Constitutional problems with a law prohibiting patents on software or any other group of inventions.  Article 1, section 8, clause 8 requires that the right of inventors to their inventions be secured.  There is no basis under the Constitution to discriminate between securing the rights of inventors for chemical inventions, but not to software inventions for instance.  Ms. Mulligan may argue that the preamble to article 1, section 8, clause.8[2] is a limit on patents, but this is a clear misinterpretation of a preamble under legal construction.  Preambles are never considered limiting in law.  In addition, if the founders intended such a limitation then they would have said Congress can take whatever steps they believe will promote the sciences and useful arts.

Ms. Mulligan’s arguments do not stand up to scrutiny.  Part of the problem may be that Ms. Mulligan is not a patent attorney.  But some of the problems are so outrageous, especially for someone who is a Yale Law professor that the only conclusion is that she has a political agenda.

The United States of America created the strongest patent system in the world.  Most of the greatest inventors in the history of the world, Edison, Tesla, Bell, etc. lived and worked in the United States.  In less than 100 years, they created the most technologically sophisticated country ever.  Almost every modern product you use today was subject to a patent or a patented processes at some point.  Your cell phone is the subject of hundreds of patents.  The same is true of your computer, the Internet, the power system, the medicines your take, the car your drive, even your glass windows (Venice patent system), even cement.  For Ms. Mulligan to suggest that patents on software or anything else inhibit the progress of technological is an extraordinary claim and requires extraordinary evidence.[3]  Ms. Mulligan has failed to provide even a scintilla of evidence and logic for her position.


[1] Rand, Ayn, Capitalism: The Unknown Ideal, Signet, New York, 1967, p. 130.

[2] “To 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”

[3] Thomas Paine.

 
CATO on Software Patents

The CATO Institute attacks patents in an article entitled What Is a Software Patent?, by Christina Mulligan.  The article argues that the word “process” in the patent statute should be limited to those processes that have an effect on matter.  The article suggests that this would eliminate the “wrong” kind of patents.  Software is not patentable, per se, software is a set of written instructions and are just bad prose.  When people use the term “software inventions” they are talking about executing the software in hardware (electronic circuits).  What the software does is define the connections or wire the general purpose electronic circuit that we call a computer.  This special purpose electronic circuit consumes energy, generates heat, causes electrons to move – in short, it has an effect on matter.  The whole premise of the article is based on a lack of understanding of what software is.  Logically, the article has to address the issue that all “software inventions” are electronic circuits and therefor the article’s position requires that it explain why certain electronic circuits should be patentable and other electronic circuits should not be patentable. It should be noted that the author is not a patent attorney, has never written a patent or a claim, nor does she appear to have a technical background.  While this is not absolutely required, it leads to the obvious mistakes made in this article.

The Constitution requires Congress to protect the rights of inventors to their inventions.  There is no justification for the distinction made in this article.  An invention is a human creation with an objective and repeatable result.  For instance, the incandescent light bulb always puts out light when electricity of the right voltage and current is applied.  Art is a human creation with a subjective result.  Software enabled inventions are clearly a human creation and they have a repeatable, objective result.  The first patent ever issued in the US was for a Method of making potash and it was a method of doing business.  The inventor was not making potash as a hobby, he planned to make a business of it.  The label of “business method patent” is thrown around commonly, but never defined as it is not in this article.  All patents are about a method of doing business.

The article ends with praise for Mark Lemley.  Another law professor who is not a patent attorney, is not legally or factually competent to be a patent attorney, has never written a patent, has never written a patent claim, but somehow knows that we should not use “functional claiming.”  Mr. Lemley does not even know what functional claiming is.  What he appears to mean is that the claims should have to include every little step or element in the invention.  This would mean that if you were writing a patent about cell phones, you would have to claim the individual transistors.  Patent law had determined that this made no sense and as long as, for instance, heterodyne receivers were well known you could claim the heterodyne receiver without claiming the individual transistors or even explaining the invention to this level of detail.  Patent law is right on this point and Lemely and the author are clearly wrong.

As a patent attorney, with a BSEE, an MS in Physics and twenty years of practicing patent law, it would be nice if CATO, when discussing patents and patent policy would actually include those who are factually and legally competent to be patent attorneys in technical discussions about patent law, including defining what software is.

 

Disappointed

Dale B. Halling

 

What Is a Software Patent?, by Christina Mulligan.

 
Hurricane Odile and Inventions

I have had the fortune or misfortune to be dealing with the aftermath of Hurricane Odile.  I have a client that has an invention that would have been able to restore power in just two days.  His invention is described in patent number 7589640. It senses the force load on a power pole and if it exceeds a certain level, the invention lowers the cross bars and power lines gently to the ground and turns off the sector switch (power).  Once the electrical lines and cross bars are on the ground, the wind loads are almost eliminated, which means the power pole is standing at the end of the storm.  Utility workers then remove the debris and use a winch type mechanism to raise the power lines and cross bars.

This invention cannot only save billions of dollars in utility repair damage per year, get power up in a tenth the time of present techniques, eliminate billions in lost business per year lost business, it also reduces the risk of injury to utility workers who are no longer required to climb utility poles and bystanders.  But that is not all, the inventor has engineered his poles so that they are less expensive to install originally than present utility poles.

GUESS WHO is opposing the inventor?  Unions.  Their members make a lot of money working storms and they don’t want any system that allows less skilled workers to setup utility poles.  Utility companies are ambivalent, because they are regulated and only allowed a certain return on capital.  Thus, all the money they save using the inventor’s system will not improve their bottom line one iota.  This is just another example of how regulation stifles inventions and makes our lives worse, more expensive and less safe.

 
Patent Trolls: Evidence from Targeted Firms

The paper, Patent Trolls: Evidence from Targeted Firms, by Umit G. Gurun and Scott Duke Kominer assumes that NPEs are enforcing patents of questionable validity.  However, the paper offers no proof of this and does not even try to justify this position.  Once you start with that position, it is a foregone conclusion that any litigation is unjustified and wastes resources.  However, the initial assumption is not proven and in fact many papers have shown the opposite.  If you do not start with this assumption then the paper’s whole argument falls apart.  Litigation losses by operating companies are a justified return to the inventor and their investors.  The operating companies are not victims, but victimizers and the return to inventors and their investors encourages more inventive activity.

 

The paper’s big conclusion is: 

“Specifically, in the years following litigation, firms against whom cases are dismissed produced spent on average $211 million (t = 1.96) more on R&D expenditures than firms that lost to NPEs.  These firms also spent on average $49 million more (t = 2.95) to acquire more in process R&D from outside.30 Furthermore, in the years following litigation, firms against whom cases are dismissed produced 63.52 more new patents (t = 2.96), and these new patents received 723.98 more citations (t = 3.45), relative to the group of firms that suffered the cost of NPE litigation.31 These large differences in R&D expenditure, patent production and in the quality of produced patents do not appear until after NPE litigation.”

Inherent in this statement is that anytime an operating firm that loses a patent litigation case to a NPE is a bad result.  If the firm was stealing an invention, then the fact that they lost is a good thing.

The companies that lost in litigation spend less on R&D according to the paper.  Perhaps that is because they were not as inventive to start with, perhaps it is because they decided to focus on manufacturing and purchasing their R&D from outside inventors, and perhaps it is because they lost a substantial amount of money.  These are not dire results or unexpected results or necessarily bad results.

The paper implies that NPE lawsuits result in less spending on R&D, but just because firms that lose patent lawsuits spend less on R&D in the years immediately following, does not mean that total R&D is down.  When inventors see their rights are upheld then they are encouraged to spend more time inventing.  Unless you measure the amount spent by independent inventors or inventive firms who now see their rights upheld, you cannot draw that conclusion.  These comments also apply to the citation differences.  The authors are only looking at the microeconomic system that they care about, but you cannot draw the macroeconomic conclusions they do, because they don’t consider all the macroeconomic effects.

The paper does not define what a NPE is.  It starts with this surprising conclusion, “We show that NPEs on average target firms that are flush with cash (or have just had large positive cash shocks).”  They needed a study to tell them that?  Of course NPEs focus on companies with cash on hand, why would they waste their time suing companies that could not pay them?  Especially after the eBay decision, in which they are unlikely to get an injunction.

 

The paper goes on to state:

“A new organizational form, the non-practicing entity (hereafter, NPE), has recently emerged as a major driver of IP litigation. NPEs amass patents not for the sake of producing commercial products, but in order to prosecute infringement on their patent portfolios.”

Edison, Tesla, Bell, Amstrong ‘amassed patents.’  In fact, most of the US’s greatest inventors were just inventors.  They did not create patents ‘for the sake of producing commercial products.’  They specialized in being inventors and let manufactures concentrate on manufacturing.  All of them were involved in numerous lawsuits.  The difference between them and today’s inventors is that the courts were much more likely to uphold their rights to their inventions.  As a result, manufacturers were much quicker to license inventions.  In fact, one study showed that in the late 1800’s an inventor’s chance of monetizing their invention if they received a patent was around 85%.  In other words they made money specializing as inventors.  Today that figure would be less than 2%.  Because courts allow companies like Google, Microsoft, Samsung, etc. to get away with stealing other people’s inventions, they make the calculated risk that it is better to go to court than pay an inventor a licensing fee.  As a result, inventors often have to team with someone with a deep pocket in order to get large corporations to pay them the licensing fees they deserve.  In fact, large companies such as IBM, Microsoft and others will also often team with people who are experts in licensing or litigation.

Division of labor is generally considered a positive in economics.  The fact that this paper is arguing against it means that it has to give extraordinary proof for its extraordinary claim.  The attack on NPEs is really an attack on the profession of inventing.  A uniquely American profession.

This is not an academic paper, it is a propaganda paper pretending to be science.

 

 

 

Patent Trolls: Evidence from Targeted Firms, by Umit G. Gurun and Scott Duke Kominer

 
CATO and Mercatus Center: Another Flawed Study on Patents

The paper, The True Story of How the Patent Bar Captured a Court and Shrank the Intellectual Commons, has a number of errors that show its conclusions are flawed.  The author’s errors in a related article, entitled How Many Jobs Does Intellectual Property Create? were well documented by Adam Mossoff and Mark Schultz in Intellectual Property, Innovation and Economic Growth: Mercatus Gets it Wrong.  This paper’s title purports to show the Court of Appeal for the Federal Circuit has been captured by patent attorneys, but never actually provides any evidence to support this assertion.  Below I will detail a number, but not all the other errors in this paper.

 

1) The article states.  “Just as other property rights internalize the social benefits of improvements to land, automobile maintenance, or business investment, patents incentivize the creation of new inventions, which might otherwise be undersupplied.”

This is the utilitarian model of property rights.  The US was not founded on the Utilitarian model it was founded on natural rights, which are incorporated the Declaration of Independence and into Blackstone’s Commentaries which formed the basis of US common law for the first century of the US. In fact, Blackstone specifically states that patents and copyrights are property rights based on Locke’s formulation.  See The Second Treatise of Civil Government; 1690; John Locke; CHAP. IX., Of the Ends of Political Society and Government.

There is no such thing as balancing test for property rights as implied by the author, this is a Utilitarian formulation of property rights.

 

2) The article states.  “A single, politically captured circuit court with exclusive jurisdiction over patent appeals has consistently expanded the scope of patentable subject matter. This expansion has resulted in an explosion of both patents and patent litigation, with destructive consequences.”

The myth of an explosion in patent litigation has been debunked many times.  As pointed out in the article The “Patent Litigation Explosion” Canard,

“First, it’s simply untrue. Award-winning economist, Zorina Khan, reports in her book, The Democratization of Invention, that patent litigation rates from 1790 to 1860 fluctuated a lot, but averaged 1.65%. Today’s patent litigation rates are around 1.5%. As Yoda would say: patent litigation explosion this is not, hmm, no. In fact, for three decades in Khan’s study patent litigation rates were higher than today’s litigation rate. From 1840-1849, for instance, patent litigation rates were 3.6% —more than twice the patent litigation rate today.”

Also see Massive Litigation Spike in Response to America Invents Act and The America Invents Act at Work – The Major Cause for the Recent Rise in Patent Litigation

Second there has not been an explosion in the number of issued patents.  The number of patents issued to US inventors in 1980 were 37,355 and in 2011 there were 108,626 that is a 3.5% increase in the number of patents per year, hardly an explosion in the number of issued patents.

The research and development cost  per patent has increased from around $1.2 Million per patent to around $4 Million per patent from 1955 to 2005 and GDP per patent over the same time period in constant dollars has increased from 60 million per patent to around 170 million per patent.  According to a paper by the Federal Research Bank of San Francisco[1], real industrial R&D has been growing at 3.7% per year between 1953 and 2000, while the number of patents per capita has been growing at 1.7% per year over the same period.  The number of citations per patent increased 3.3% per year over the 25 year period from 1975-1999.

 

3) The article states.  “As early as 1951, Simon Rifkind, a former federal judge in New York City, warned in a prescient essay that then-current proposals to create a specialized patent court would lead to “decadence and decay.”

This was the time period in which a Supreme Court Justice in 1948 would write “the only patent that is valid is one which the Court has not been able to get its hands on.”  Jungerson v. Ostby and Barton Co., 355 US 560.  This was also when the Supreme Court was applying its “flash of genus standard to patents.”  If Rifkind meant that it would result in courts that did not have this utter disdain of patents he was right.  However, this is hardly an objective measure.

 

4) The article states.  “Using a dataset of district and appellate patent decisions for the years 1953–2002, economists Matthew Henry and John Turner find that the Federal Circuit has been significantly more permissive with respect to affirming the validity of patents.”

Well given the Supreme Court’s attitude the only patent that is valid is one which the Court has not been able to get its hands on that is hardly a surprise.  One of the first things that Reagan did upon becoming president, was to create the Court of Appeals for the Federal Circuit.  This court does hear all patent appeals and actually had about half the Justice that were actually trained in patent law.  In order to be legally or factually competent as a patent attorney you have to have a technical background in science or technology, which none of the present Supreme Court justices have.  In addition, patent attorneys have to pass a separate bar exam that has one of the lowest pass rates in the US.  Patent law is a highly technical and specialized area, just like quantum mechanics is highly specialized and technical.  You would not ask an English professor how to solve a problem in quantum mechanics and expect anything sensible.  The same is true for patent law.

 

5) The chart in the article is a lie.  It shows the number of patents linearly, which would show any compound growth as an exponential.  In fact the number of issued patents has grown at a rate 3.5% from 1980 to 2011, hardly an explosion.

 

6) The article states.  “They estimate that patentees are three times more likely to win on appeal after a district court ruling of invalidity in the post-1982 era. In addition, following the precedents set by the Federal Circuit, district courts have been 50 percent less likely to find a patent invalid in the first place, and patentees have become 25 percent more likely to appeal a decision of invalidity.”

The 1970s was a period of time in which several appeals circuits had not upheld the validity of a patent in 25 years.  The FTC had a policy of nine no-nos of what you could not do with your patent without running afoul of the antitrust laws.  It is hardly surprising that Reagan and Congress wanted to strengthen the property rights of inventors.

 

7) The article states.  “The U.S. Supreme Court reversed the Court of Customs and Patent Appeals, holding that mathematical algorithms (and therefore software) were not patentable subject matter.”

Here the Supreme Court showed their complete ignorance of what a computer is and what software does.  Any electrical engineer knows that any device implemented in software can be implemented in hardware.  In fact, software just wires an electronic circuit (computer) to create an application specific device.  Engineers choose between these options based on the need for flexibility and lower cost (software) and speed (hardware) and have several choices in between.

In order to be logically against software patents, one has to be against all patents for electronic circuits.  This is the sort of nonsense you get from a court that does not understand the underlying technology.

 

8 ) The article states.  “State Street Bank v. Signature Financial Group (1998), the Federal Circuit broadened the criteria for patentability of software and business methods substantially, allowing protection as long as the innovation “produces a useful, concrete and tangible result.”

35 USC 101 states “Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.”  A computer implemented invention is a new and useful machine and useful process.  Seems like the Federal Circuit got it right.

 

9) The article states.  “The GAO estimates that more than half of all patents granted in recent years are software-related.”

The GAO counted any invention that includes some sort of software, firmware, or related.  Let’s see, a procedure to sequence DNA would probably use a machine that had software or firmware and therefor met the GAO’s definition.  A chemical patent that used any computer controlled machinery would count as a software patent under this definition.  Today most transmission systems are computer controlled and therefore meet this definition.  This standard is so loose as to meaningless.

 

10) The article states.  “While more patents have not resulted in faster economic growth, they have resulted in more patent lawsuits.”

This statement will take some unpacking.  First of all the 1980s and 1990s saw significantly faster growth than the 1970s, which had a significantly weaker patent system.  Second of all the patent laws were weakened starting in 2000 with the Patent Act of 2000.  This trend has continued to this day.  In 2002, we passed Sarbanes Oxley which made it almost impossible for startups to go public, which starved startups and VCs of capital.  Economic growth did not start to fall off until around 2000.  So actually the data is consistent.  Weaker patent laws are associated with weaker economic growth.  Third, the patent system cannot function in a socialist system.  The US by CATO’s estimate takes 60% of the GDP today.  What does it mean to own your patent in a world where the EPA can take your land at any time, in which the eminent domain can be used to take your property for a project that promises higher tax revenue, a world in which the government publishes your invention for the whole world to see before they provide you any patent protection, a world in which the government does not accept any limits to tax you or regulate you?  The author is right that a patent system cannot cause economic growth in the USSR, which tried to implement a patent system.  A patent system is based on a system of property rights.  Since 2000 we have created a patent system that supports crony socialism (capitalism), not surprisingly our inventors and entrepreneurs are not creating economic growth.

The macroeconomic evidence is overwhelming for patent systems creating growth.  Those countries with the strongest patent systems are the most inventive and have the greatest technological dispersion and are the wealthiest in the world.  While those with the weakest patent systems do not contribute any inventions and have very poor technological dispersion and are some of the poorest countries in the world.

 

I for one am very disappointed that the CATO Institute would publish such a poorly researched and reasoned article.

 

 

 

[1] Wilson, Daniel, “Are We Running Out of New Ideas” A Look at Patents and R&D”, FRBSF Economic Letter, Number 2003-26, September 12, 2003.

 
Halling’s Talk at Atlas Summit 2014: Why John Galt is an Inventor

I spoke at Atlas Summit 2014 in June in New Hampshire.  Click here to see my talk.  I have a related blog post Why Rand Choose Inventor as Galt’s Profession.

 

The website Rebirth of Reason, which is supposed to be an Objectivist website, posted an article entitled Patent Scam.  Below is my open letter to the author of this article.

 

Dear Ms. Vera S. Doerr,

 

If someone displayed the ignorance in criticizing Objectivism that this article does about patent law, Objectivists would be furious.  First of all it is clear that you do not know how to read a patent.  You don’t know the difference between the claims and the background, you don’t know the difference between an independent claim and a dependent claim or a patent and a patent application.  In fact it is clear that you did not read the patent application, which can be found here http://www.freepatentsonline.com/20140215201.pdf.  If you had read the patent application and understood how patents are written, instead of the summary from the article, you would clearly have seen that the invention is not about a device which can turn into a “cell phone, a smartphone, a tablet PC, a laptop, a personal computer, a netbook, a personal digital assistant, an e-book reader, a TV and/or other computing devices…”  You would have seen that this was about a device with a foldable display that takes certain action when it is folded in different ways.  These actions are explained in the patent application as making or receiving a phone call, sending or receiving an electronic document, activating or deactivating a software program, and connecting to or disconnecting from a network.

Despite your ignorance of patent law, electronics technology, and the specifics of the invention, you pontificate that “the technology behind it (the invention) would be so diverse that no material, no hardware, no software, existing today even as a theoretical prototype, could be combined into such a device.” Perhaps you are unaware that one of the requirements of a patent is the enablement requirement under 35 USC 112.  It requires that the inventor explain his invention in enough detail that one skilled in the art be able to practice the invention.  But you don’t have to take my word for it, foldable displays are known, see displays.  Having a foldable display that when folded in a certain way receives a phone call, or sends a document, is well within the reach of today’s technology.  As a patent attorney, with a BS in electrical engineering, a MS in physics, and named inventor on nine patents, I can assure you that this patent application is enabled and could easily be built by one skilled in the art.  Now that I have shown that to you, you will probably turn around and say it should not be patented because it is obvious, further proving your ignorance of patent law, logic, and reason.

Next you state that everyone is doing this and you “simply cannot believe this patent scam! Worse: it’s actually legal!”  This is clearly an appeal to emotion not logic.  You continue this unsubstantiated attack on the patent system, suggesting it is a legal hold up game that people are using to get rich.  Your article is worthy of a muckraking SOCIALIST journalist or a follower of Kant, Hegel, or Kierkegaard, but not someone writing on the Rebirth of Reason  or someone who has studied Ayn Rand.

Rand stated that Patents and Copyrights are the source of all property rights, because they protect the source of all human creation, the products of man’s mind.  Patents are property rights for inventions and your attack on the patent system is really an attack on the very basis of property rights.

There is a SCAM going on here Ms. Doerr, but it is not patents.

 

Sincerely,

Dale B. Halling

 
Fallout from Alice: Digitech Image v. Electronics for Imaging

We are beginning to see the absurd results from Alice in the case Digitech Image Technologies, LLC v. Electronics For Imaging, Inc., Case No. 13-1600 (Fed. Cir. July 14, 2014), the Federal Circuit affirmed a district court decision invalidating all claims of Digitech’s patent (U.S. Patent No. 6,128,415).  The invention tags digital images with particular information about the camera and its color/spatial image qualities in a form that is device-independent. The patent includes claims directed to both a “device profile” and a “method of generating a device profile.”  The Court found the claims invalid under 35 USC 101.  Independent Claim 1 states:

 

1. A device profile for describing properties of a device in a digital image reproduction system to capture, transform or render an image, said device profile comprising:

first data for describing a device dependent transformation of color information content of the image to a device independent color space; and

second data for describing a device dependent transformation of spatial information content of the image in said device independent color space.

According to Patently O:

At the Federal Circuit, the patentee argued that one of skill in the art would understand that the claims required hardware or software within a digital image processing system. However, in an implicit claim construction, the appellate panel rejected that argument – finding that the claims are not so limited. “The claims encompass all embodiments of the information contained in the device profile, regardless of the process through which this information is obtained or the physical medium in which it is stored.” The underlying problem with this analysis is the reality that data is always stored in a physical form lest it disappear.

The court disagreed and found the patent was directed to an Abstract Idea, a term that the Supreme Court has refused to define.  Logically all inventions are directed to an abstract idea, in that they abstract the invention from the particular or specifics.  The only logical definition of Abstract Idea is a thought or conception that is separate from concrete existence or not applied to the practical.  Here the invention is clearly drawn to the practical and is being widely used.

You can argue that patentee wrote the claims incorrectly, but the Supremes would then counter than cleaver draftmanship will not save you from 101.  Of course the Supremes then look to the claims to determine 101 eligibility.  This is circular reasoning on the part of the Supremes.

Claims are supposed to define the invention, they are not the invention.  A definition should not have extraneous information that does not add meaning.  Here the physical structure would not have added anything to the definition.  This is why I have been arguing that 101 should really be about the specification.  Here the patentee clearly describes an invention.  Patent law is devolving back to the 1940s and now we are all talking about how many angels can dance on a pinhead.

 

The long awaited decision by the Supreme Court in Alice v. CLS Bank came out on June 19, 2014, while I was away giving a talk at Atlas Summit 2014, which is why this post has been delayed.  Even in the statement of the question presented in the case the Court got it wrong:

The question presented is whether these claims are patent eligible under 35 U. S. C. §101, or are instead drawn to a patent-ineligible abstract idea.

Abstract ideas are not an exception to section 101, despite a long line of nonsense by the court.  Every invention is an abstract idea in that it describes a class of things, not a specific instance.  The failure (purposeful) of the Court to define what they mean by an “abstract idea” has resulted in an incomprehensible standard.

An abstract idea is a thought or conception that is separate from concrete existence or not applied to the practical.  From this definition, it is clear that if an inventor were to describe an “abstract idea” it would be a section 112 issue, not a 101 issue.  In this case, Alice describes and claims a concrete existence that is applied to the practical problem of settlement risk that saves billions of dollars a year.  Note using any rational definition of abstract idea, means it would not be a “process, machine, manufacture, or composition of matter.”  Therefore the abstract ideas exception is just redundant.  But the Court is unable to think logically, so instead of applying the statute, they make up the law as they go along.

In any event, we need not labor to delimit the precise contours of the “abstract ideas” category in this case. It is enough to recognize that there is no meaningful distinction between the concept of risk hedging in Bilski and the concept of intermediated settlement at issue here. Both are squarely within the realm of “abstract ideas” as we have used that term.

Biliski did not claim or describe “risk hedging” and Alice did not describe “intermediate settlement” any more than the patent for the LASER described “light making.”  The Court’s characterization of these inventions with two word tag lines is intellectually dishonest.

Note the Court admits that they refuse define what they mean by abstract idea.  Failure to define one’s terms is the hallmark of charlatans and tyrants.  The Court’s statement means that no one can know what will be considered an abstract idea until the Supreme Court rules.  This is a judicial power grab.

Below the Court tries to justify what is clearly an absurd position.

The fact that a computer “necessarily exist[s] in the physical, rather than purely conceptual, realm,” Brief for Petitioner 39, is beside the point. There is no dispute that a computer is a tangible system (in §101 terms, a “ma­chine”), or that many computer-implemented claims are formally addressed to patent-eligible subject matter. But if that were the end of the §101 inquiry, an applicant could claim any principle of the physical or social sciences by reciting a computer system configured to implement the relevant concept.

But what petitioner characterizes as specific hardware—a “data processing system” with a “communications controller” and “data storage unit,” for example, see App. 954,958, 1257—is purely functional and generic. Nearly every computer will include a “communications controller” and “data storage unit” capable of performing the basic calculation, storage, and transmission functions required by the method claims.

A computer is a machine and those are covered by 101.  The Court is intellectual dishonest or just plain stupid when they state “an applicant could claim any principle of the physical or social sciences by reciting a computer system configured to implement the relevant concept.”  Alice never said any such thing, but because the Justices are incompetent in reading claims and computer technology, they ignore the claims and description, and come up with their own characterization.

Here they again prove they cannot read the claims and instead paraphrase them, of course ignoring any part they find inconvenient.

The representative method claim in this case recites the following steps: (1) “creating” shadow records for each counterparty to a transaction; (2) “obtaining” start-of-day balances based on the parties’ real-world accounts at exchange institutions; (3) “adjusting” the shadow records as transactions are entered, allowing only those transactions for which the parties have sufficient 8resources; and (4) issuing irrevocable end-of-day instructions to the exchange institutions to carry out the permitted transactions. See n.2, supra.

The Court then proceeds to suggest that there is some sort of balancing test to 35 USC 101.

The former “would risk disproportionately tying up the use of the underlying” ideas, id., at ___ (slip op., at 4), and are therefore ineligible for patent protection. The latter pose no comparable risk of pre-emption, and therefore remain eligible for the monopoly granted under our patent laws.

Balancing tests are inherently unconstitutional.  A nation of laws is based on Natural Rights and clearly delineated laws.  A balancing test turns that into a nation of men.  Judges like them because they are the “men” so it is an inherent power grab.  The Constitution requires the Rights of Inventors be secured.  It does not allow for judicial balancing of inventors’ rights.

The Court then ignores the 1952 Patent Act and deconstructs the claims, which not only violates 35 USC 103, but is illogical (every invention is a combination of existing elements – conservation of matter and energy).  In addition, it brings back the discredited idea of “inventive concept”, which the 1952 Patent Act specifically was directed at eliminating.

To answer that question, we consider the elements of each claim both individually and “as an ordered combination” to determine whether the additional elements “transform the nature of the claim” into a patent-eligible application. Id., at ___ (slip op., at 10, 9). We have described step two of this analysis as a search for an “ ‘inventive concept’”—i.e., an element or combination of elements that is “sufficient to ensure that the patent in practice amounts to significantly more than a patent upon the [ineligible concept] itself.” Id., at ___ (slip op., at 3).

It would be nice if the Justices could actually read a statute.

The following statement shows the intellectual dishonesty of the court.

A claim that recites an abstract idea must include “additional features” to ensure “that the [claim] is more than a drafting effort designed to monopo­lize the [abstract idea].” Id., at ___ (slip op., at 8–9). Mayomade clear that transformation into a patent-eligible application requires “more than simply stat[ing] the [ab­stract idea] while adding the words ‘apply it.’Id., at ___ (slip op., at 3).

Alice’s patent application never said any such thing.  The Justices should be impeached for this sort of outrageous characterization.

Here again, the Justices prove they have no idea how to read a claim.

On their face, the claims before us are drawn to the concept of intermediated settlement, i.e., the use of a third party to mitigate settlement risk. Like the risk hedging in Bilski, the concept of intermediated settlement is “ ‘a fundamental economic practice long prevalent in our system of commerce.’” Ibid.; see, e.g., Emery, Speculation on the Stock and Produce Exchanges of the United States, in 7 Studies in History, Economics and Public Law 283, 346–356 (1896) (discussing the use of a “clearing-house” asan intermediary to reduce settlement risk).

The claims are not drawn to anything.  This is just an attempt to ignore the limitations of claims to smear the invention.  The LASER is a part of the fundamental practice of creating light that has been known before for millions of years.  Does that mean it should not have been patentable?

 

Conclusion

The bottom line on this case is the Court is opposed to patents that cover financial products.  Alice and Biliski are Wall Street protection act decisions.  It is impossible to draw any conclusions broader than the Court will not allow patents on financial products.  This is not logic and it is not law.  It is time that we withdraw the Supreme Court’s jurisdiction over patent cases.  Not one of the Justices or their aides are legally or factually competent to be patent attorneys, and the consequences of their incompetence are just too high.

 

 
$120 Per Smartphone in Royalties – Outrageous!

An academic paper claims that the cost for royalties ($120 per phone) is about the same as the cost of the components in a smartphone.  This was accompanied by a number of articles suggesting this was outrageous and unsustainable.  For example see:

* High smartphone patent royalties undermine industry profitability: report 

* The $120 Smartphone Patent Tax: Patent Royalties Cost More Than The Actual Hardware In Your Phone:   This one from my favorite patent Luddite site, Techdirt.

* Smartphone royalties now equal manufacturing costs

The logical flaw underlying all these articles is that the value of products is determined by the amount of physical labor and/or the cost of the underlying materials.  On this basis, the actual material costs of a cell phone are probably less than $5 and the labor (unskilled labor in the US is worth perhaps $10/hr) involved in making the phone might be worth $5, let’s throw in $10 for distribution and the hard costs of a smartphone are about $20.[i]  The rest of the costs are the result of intellectual property, much of which is in the form of patents, but some is in the skilled labor, copyrights and trademarks.  The actual cost of the intellectual property in a smartphone is closer to $380.00.  Much of these costs are hidden.  For instance, when Intel sells a microprocessor they charge you $50, for example, but the labor cost and material cost of the microprocessor is pennies.  The reason they can charge $50 is because of the intellectual property, which means patents.  From an economic point of view you are paying a dollar or so for the manufacturing and $49 in patent royalties.

Another logical flaw in these articles is that this is an unsustainable business model.  First of all the underlying paper points out that sales of smartphones and tablets is now bigger than all the rest of the consumer electronics space, with over a billion smartphones sold in 2013.  Clearly the business model is not falling apart.  Second of all, the cost of Microsoft Office Home and Business 2013 is $219.00 and none of that is manufacturing cost.  The cost of Microsoft Office is essentially all IP (Patents, Copyrights, etc.).  Solidworks, which is 3D CAD software, cost $4000.00 and also has essentially no manufacturing costs, which means you are paying the equivalent of $4000 in royalties.  The argument that the model is unsustainable is absurd.

 

Actual Paper

The paper that started this economic stupidity is The Smartphone Royalty Stack: Surveying Royalty Demands for the Components Within Modern Smartphones.  The paper is clearly designed to sway public and Judicial opinion in a manner that will be beneficial for Intel.  Namely, Intel wants a patent system that emphasizes manufacturing, not inventing.  Another goal of the paper is to get courts to reduce the amount of royalties that inventors receive.

“In particular, there has been significant recent focus on “royalty stacking,” in which the cumulative demands of patent holders across the relevant technology or the device threaten to make it economically unviable to offer the product.”

This statement is absurd on its face, as the paper itself points out.

“The market for smartphones has exploded. Smartphones sales for 2013 topped one billion units globally for the first time ever.  In addition, global revenues for smartphone and tablet sales in 2013 are estimated to have surpassed for the first time revenues for the entire consumer electronics markets (e.g., televisions, audio equipment, cameras, and home appliances).”

Here is the real point that this paper is pushing:

“Further, the available data demonstrate a need for licensees to advocate and courts to rigorously apply methodologies for calculating royalties that focus on the actual value of a claimed invention put in context of the myriad other technologies in a smartphone and the components in which the technologies are implemented.”

I will admit that having courts set royalty rates is not ideal and the results can be squirrelly, which is why eBay  should be reversed.  The courts used to just prohibit the infringer from using the patented technology and then the parties had to work out a deal.  But the Supreme Court decided that enforcing the only right you get with your patent is an injunction – actually it is not an injunction it is an exclusion order requiring the infringer to not trespass on (use) the patent owner’s property.

The paper admits that its methodology is limited and the actual cash cost going to pay royalties could be higher or lower.  For instance, the paper does not track cross licensing, pass through, or patent exhaustion, all of which could significantly reduce the actual royalties paid.  They clearly made an error if they did not account for patent exhaustion.  If patent exhaustion was part of the royalty costs, then almost every high value component’s price is mainly due to patents.  Correctly accounting for patent exhaustion would show a royalty per smartphone closer to the $380.00 per phone as explained above.

The paper is just dishonest when discussing the growth in the number of patents issued and the number of patent lawsuits.  It shows in 20 years the number of patents issued in the US has increased from 100,000 per year to 250,000 per year.  The implication is that this is an absurd increase in the number of issued patents, but if you do the math this turns out to be a 4.75% annual increase, about the same as the increase in worldwide GDP over the same time period.  The paper also shows a graph depicting the number of patent lawsuits exploding around 2011.  This increase is due to the America Invents Act, which limited the joinder of defendants in patent lawsuits.  This has been well documented, as in the article  The America Invents Act at Work – The Major Cause for the Recent Rise in Patent Litigation.  The paper’s failure to point this out is just outright fraud.  The fraud is perpetrated again when the paper points to the increase in the number of NPE lawsuits.  These authors seem to have gotten their training from Al Gore and French economist Thomas Piketty.

 

 


[i] In fact you can buy cell phones for less $30.00 on the Internet.  The cost of materials in a smartphone and a $30 cell phone is essentially the same.  The material costs in a cell phone include the plastic which costs several cents, the metal for the conductors which might be worth a dollar, the silicon which in its raw form is worth almost nothing.

 
Why did Rand Choose Inventor as Galt’s Profession?

Dale B. Halling, author of Pendulum of Justice (with his wife Kaila) and The Decline and Fall of the American Entrepreneur, will be speaking at the Atlas Summit 2014.  The topic of his talk will be “Why did Rand Choose Inventor as Galt’s Profession?”  The paper below roughly tracks the talk.

 

 

Rand stated that the goal of her writing was to portray an ideal man and Galt was her artistic embodiment of the ideal man.  In the famous Galt speech, he says “I was an inventor.  I was one of a profession that came last in human history and will be first to vanish on the way back to the sub-human?”  What is so important about inventors that Rand would make that the profession of her ideal man and indicate that the profession of inventing was the canary in the coal mine of human progress?

In order to answer these questions, we first have to define what an inventor is: it is a person who makes their living from creating and selling inventions, as opposed to manufacturing, marketing, distribution, etc.  We all think we know what an invention is, but actually courts have struggled with this question.  In the last couple of years the Supreme Court has heard a couple of cases on this exact question and has provided no clear answer.  Dictionary definitions tend to be circular or so vague as to not be helpful.  I am going to propose that an invention is a human creation that has an objective result, i.e, the effect of which is demonstrable repetitively, and measurable objectively, and  independent of the observer.  While art is a human creation that has a subjective result, i.e., whose effect is the reaction of the observer, which not only varies from observer to observer, but may also vary over time in the same observer.  Art and inventions together are the complete set of human creations.  For instance, the invention of an incandescent light bulb has the objective result of putting out light when the appropriate electrical signal is applied.  Note that inventions are always about a class of objects, not an individual object (instance).  Art does not have an objective result.  How I react upon seeing Atlas Shrugged III will be different than how you react.  This can become confusing, because movies are an invention.  A specific instance of a movie is a human creation with a subjective result, while the class of objects called movies is an invention, actually a modern movie is a combinations of many inventions.

Manufacturing is the process of recreating an object.  If I produce a hundred bikes, I have recreated the invention of a bicycle a hundred times.  Standard engineering involves repurposing an invention.  For instance, if I am making bikes for adults and I decide to make them for children; I know children are smaller so I will design a smaller frame, I might design the frame out of thinner steel because kids are lighter, I might change the gearing because kids are not as strong, but in the end it is still a bicycle and not a new invention.  Neither manufacturing nor standard engineering meet the definition of an invention.

Rand has a scene in Atlas Shrugged between Jim Taggart and his wife that gets to the essence of what an invention is and many of the debates about inventions.

’He didn’t invent smelting and chemistry and air compression.  He couldn’t have invented HIS metal but for thousands and thousands of other people. HIS Metal! Why does he think it’s his? Why does he think it’s his invention?  Everybody uses the work of everybody else.  Nobody ever invents anything.’ (Jim Taggart)

She (Cheryl) said, puzzled, ‘But the iron ore and all those other things were there all the time.  Why didn’t anybody else make that Metal, but Mr. Rearden did?”

This scene clearly illustrates that Rand understood that an invention is a combination of existing or known things and it is the combination that is unique.  We know this is true because you cannot create something out of nothing and this is James Taggart’s reason for saying Rearden did not invent anything.  Cheryl’s responses is also classic in pointing out that all the things necessary to create the invention were available to others, but only Rearden created the metal.

Rand stated, “I seem to be both a theoretical philosopher and a fiction writer.  But it is the last that interests me most; the first is only a means to the last.” [1]  She described Galt as, “He too, is a combination of an abstract philosopher and practical inventor.”[2]  She illustrates this point in the scene where Dagny goes to talk to Dr. Stadler about the motor.  Stadler states, “Why did he want to waste his mind on practical appliances?”  Dagny replies, “Perhaps because he likes living on this earth.”  For Galt philosophy and theoretical physics are a means to inventing, with inventing being the primary goal.  According to the definitions of art and invention above, all of human creation is divided between the two.  This makes Galt the mirror image of Rand and together they make a complete set, which is why I think Rand choose inventor as Galt’s profession.

Why are inventors important?  Rand stated “Nothing can raise a country’s productivity except technology”[3] and inventors are the ones who create technology.  In classical economics we are taught that the inputs to the economy are land, labor, and capital.  Robert Solow received the Nobel Prize in economics for an econometric study of whether labor, capital, or technological change had the biggest impact on economic growth.  He found that almost all economic growth is due to new technologies, i.e., inventions.  Follow up research has found that all real per-capita economic growth is due to inventions.  Imagine if we had the same technology as the people living in 1600.  Would we be any wealthier than the people at the time?

The cotton gin is an interesting example of the power of inventions.  In 1791, the entire output of cotton in the U.S. was 4,000 bales.  The cotton gin was invented in 1793 by Eli Whitney.  By 1801, the output of cotton in the U.S. was 100,000 bales, over a 25 fold increase.  This increase was only possible because of the cotton gin.[4]  Note that this is consistent with Rand, who stated “Man’s mind is his basic means of survival.”  The way man uses his mind to meet his needs is by creating things, i.e., inventions, and this has been confirmed by econometric research.

Despite the importance of inventing, there have been very few professional inventors throughout history.  One time period that we do remember for its professional inventors is the beginning of the Industrial Revolution through the late 1800s with Edison, Tesla, Westinghouse, and others.  Why did this time period have so many professional inventors?  An inventor is someone who makes his living by selling his inventions.  In order to be able to sell an invention, you need to have property rights in your invention.  Property rights for inventions are a relatively recent legal concept.  The first known patent statute (property rights for an invention) was enacted, in 1474, by Venice.  Note that Venice was one of the richest places in the world at the time and home to many great inventors including Leonardo da Vinci and Galileo.  England slowly developed an archaic patent system starting with the Statute of Monopolies of 1623.  Even this archaic patent system was enough to spur inventors to create the Industrial Revolution.  The United States and the Colonies had patent systems roughly modeled on England’s.  The (original) US Constitution only mentions one RIGHT and that is the rights of inventors and authors, i.e., patents and copyrights.  It was not until the Patent Statute of 1836 that the US created the first truly modern patent system.  A modern patent system is characterized by an examination system administered by an independent, technically competent examination core that is readily accessible to all inventors (as opposed to only wealthy or politically connected inventors, see England in 1800s), has a system for widely publishing patents, and provides a freely alienable property right.  This is why we do not see the profession of inventing until relatively recently.  Before a modern patent system an inventor had nothing to sell, which is why the Middle Ages are characterized by trade secrets passed along by guilds.

I do not find it surprising that property rights for inventors were one of the last to be created.  A nomadic society has no need for property rights in land and history shows that the concept of property rights in land is unfathomable to them.  For instances, here is a quote by an American Indian that illustrates my point.

“What is this you call property? It cannot be the earth, for the land is our mother, nourishing all her children, beasts, birds, fish and all men. The woods, the streams, everything on it belongs to everybody and is for the use of all. How can one man say it belongs only to him?” -Massasoit

Nomadic people gather, they do not cultivate.  As a result, a nomadic people cannot possible understand why they cannot pick an apple from your orchard.  Only with the agricultural revolution (and mining) did the concept of property in land make any sense.  It would be impossible to have an agricultural revolution in which people who planted and cultivated the crops were not given the rights to the harvest and the land which they turned into a productive asset.  Similarly the concept of property rights in inventions is difficult for people who see all wealth as coming from agriculture.  For an agricultural people wealth is the result of physical labor, not thought.  Sure labor saving devices are great, but they are meaningless until some puts the labor into using them, much like raw land in their minds.  Putting this in more modern language, you can own an instance of say a plow, but cannot possibly have an ownership right in an instance of a plow you have never seen and did not build.   Note the similarity to Marx’s labor theory of value.

This chart shows the income per capita from 1000 BC to approximately 2000 AD and is most representative of the US, England and the West.  It also illustrates the importance of property rights for inventions.  Until the Industrial Revolution around 1800, people were stuck in the Malthusian Trap, which means they lived on the edge of starvation.  With the advent of relatively effective property rights in inventions, per capita income started to grow exponentially.  Note this occurred with an exponentially growing population.  This is not surprising.  Economic growth is due to inventions and the advent of property rights in inventions spurred people to invent more.  The same pattern with real property has been well documented, for instance see the Peruvian economist Hernando de Soto.

Rand stated “Patents and copyrights are the legal implementation of the base of all property rights: a man’s right to the product of his mind.”[5]  “What the patent and copyright laws acknowledge is the paramount role of mental effort in the production of material values: these laws protect the mind’s contribution in its purest form: the origination of an idea.”[6]  The source of all property rights is creation.  It is the legal system’s recognition of the metaphysical fact that but for the creator, the creation would not exist.  Not surprisingly those that hate achievement and those who want to live off the efforts of others deny that creation exists or that it is result of individual effort.  As Barak Obama put it, “you didn’t build that.”  Similarly, one of the popular academic papers on patents today is entitled “The Myth of the Sole Inventor.”[7]

Rand wrote in 1967, “Today, patents are the special target of the collectivists’ attacks …”[8]  She was right then and she is right today.  In the 1970s the FTC (Federal Trade Commission) published their nine no-nos on patents.  These severely limited the patent rights of inventors in the 1970s.  Xerox was an example of this attack on patent rights and success.  In the early 1970s Xerox was sued by the FTC for monopolistic practices.  The inventor of xerography, Chester Carlson, was a patent attorney who started work on his invention in the late 1930s.  He pitched his idea to IBM, Kodak, and many others and was turned down until the forerunner of Xerox.  They spent years perfecting his idea and in the 1950s the Xerox started developing and deploying a commercial version of the copy machine.  By the 1960s Xerox was one of the most successful corporations of all time.  Xerox initially thought the FTC allegations baseless, but several years later with mounting private antitrust lawsuits Xerox decided to settle with the FTC.  In 1975 when Xerox agreed to the FTC consent decree, which required them to license their patents for next to nothing to all comers, they had almost a 100% market share in plain paper copiers.  Just four years later, their market share was down to 14% and most of the rest of the market was controlled by Japanese companies.[9]  While this was the most dramatic example of the FTC’s and Department of Justice’s (DOJ) abuse of U.S. companies’ property rights in technology, it was hardly an isolated incident.  The FTC/DOJ brought more than 100 of these cases and gave away the technology associated with over 50,000 patents.  The result was that the U.S. transferred its cutting edge technology to Japan and many U.S. companies found themselves unable to compete with the Japanese, because the Japanese did not have to spend the money on R&D or the large initial cost of marketing for a new product.  A MITI study substantiates that most Japanese companies took advantage of this traitorous policy by the U.S. government to catch up with U.S. companies technologically.[10]  Once again Rand proved herself prescient.

American companies’ response was to forego obtaining patents in the 1970s and this did not change until the 1980s.  In the late 1990s there was a renewed attack on inventors.  Instead of using antitrust law and going after large corporations, the new attack has been a crony capitalist scheme to create a playing field that only benefits large, politically connected companies.  Among the many changes to US patent laws since 2000 are the requirement that all patent applications be published, the change from a first to invent to a first to file patent system, the Supreme Court not allowing patent holders to enforce their rights through an injunction, and the introduction of three different systems to attack the validity of a patent administratively.  This is a more focused attack on the profession of inventing than the assault of the 1970s.  In the late 1800s 85% of all patents were licensed by their inventors in the US.  Late 19th century U.S. inventors increasingly operated as independent inventors who extracted returns from their discoveries by licensing or selling their patent rights.[11]  Among these inventors were Edison, Bell, Tesla, etc.  “An astonishing two thirds of all America’s great inventors in the nineteenth century were actually NPEs” (Non-Practicing Entities).  Today’s system makes the cost and uncertainty of inventing far too risky for all but the most wealthy inventors.  Most large companies practice a policy of purposeful ignorance of other people’s patent rights and rely on the fact that litigation is too expensive for independent inventors and small companies to prevail in court.  If you asked the success rate for independent inventors (People who just create and sell their inventions) to people in the industry, you would hear somewhere around 2%.

But as Rand pointed out the attack on patents is not limited to socialists.  There has been a concerted attack on patents by Libertarians and Austrian Economists.  One of the best known proponents of this point of view is Stephen Kinsella.  They argue that property rights are not about creation, not about owning yourself and the product of your labor, but about scarcity.  According to them, patents and copyrights create artificial scarcity.  Their argument fails even if you believe that property rights are based on scarcity, because it takes real resources to create inventions and real resources to distribute these new technologies.

The press has also joined in this all out attack on patents, labeling anyone who does not manufacture their invention a “patent troll.”  This attack includes so-called free market media outlets including Forbes and the Wall Street Journal.  These attacks ignore Adam Smith’s idea of the division of labor, ignore that many of our most revered inventors in history meet their definition of a patent troll, and ignore that many large manufacturing companies enforce or license inventions that they do not manufacture.  But the goal of these articles is not logic, but to create a narrative to eliminate the profession of inventing.

The legal attack on the profession of inventing is not limited to destroying the property rights of inventors, but also includes limiting inventors’ access to capital through laws like Sarbanes Oxley.  However, the people who hate human progress and hate humans are not content to just stop inventors, the engine of human progress, they want to roll back the technology of the last two hundred years.  For instance, they want to outlaw DDT, they want to outlaw fossil fuels, and they want to outlaw private vehicles.  Environmentalists have the stated goal of forcing humans back to the state of “sub-humans”, meaning people without technology.

This is why Galt said his profession, inventor, would be one of the first to disappear on the way back to the sub-human.  The first step in this process is to stop new technologies from developing and the second step is to roll back the technology that has already been developed.

All human creations can be divided into art and inventions, with one having a subjective result and the other having an objective result.  Rand was an artist and philosopher, while Galt was her mirror image of an inventor and philosopher.  Inventions are the result of man’s mind trying to fulfill his needs.  Property rights for inventions are a fairly recent development and correspond generally with the escape of mass numbers of people from the Malthusian Trap.  This has made patents a key target of those who hate human progress.  This presents and opportunity for the Atlas Society and Objectivist to differentiate themselves from other so-called free market organizations and to stand up for the Galt’s of the world.

 

 

Suggested Actions and Further Research

This talk is a small part of the work I have been researching in what economists call ‘New Growth Theory.’  This area of economics recognizes the central nature of man’s mind in producing wealth.  As a result, it presents the possibility of being able to define a school of economics that is consistent with Objectivism.

 


[1] Rand, Ayn, Atlas Shrugged, Introduction to the 35th Anniversary Edition.

[2] Rand, Ayn, Atlas Shrugged, Introduction to the 35th Anniversary Edition.

 

[3] “The Moratorium on Brains,” The Ayn Rand Letter, I, 3, 5

[4] Evans, Harold, They Made America, Little, Brown and Company, 2004, pp. 49-50.

[5] Rand, Ayn, Capitalism: The Unknown Ideal, Signet, New York, 1967, p. 130.

[6] Rand, Ayn, Capitalism: The Unknown Ideal, Signet, New York, 1967, p. 130.

[7] Lemly, Mark A., “The Myth of the Sole Inventor”, March 2012, Michigan Law Review, http://www.michiganlawreview.org/assets/pdfs/110/5/Lemley.pdf.

[8] Rand, Ayn, Capitalism: The Unknown Ideal, Signet, New York, 1967, p. 133

[9] Mark Blaxill, Ralph Eckardt, The Invisible Edge: Taking Your Strategy to the Next Level Using Intellectual Property.

[10] Mark Blaxill, Ralph Eckardt, The Invisible Edge: Taking Your Strategy to the Next Level Using Intellectual Property.

[11] Henry R. Nothhaft (Author), David Kline (Contributor), Great Again: Revitalizing America’s Entrepreneurial Leadership

 

 
Another Libertarian Argument Against Patents Bites the Dust

Libertarians and Austrians, including such organizations as the CATO Institute, Von Mises, and the Wall Street Journal, have put forth a number of arguments against patents and intellectual property.  These arguments include that ideas (an invention is not just an idea, but I will let that go) are not scarce and therefore patents are not real property rights, patents are monopolies, patents inhibit the growth of technology, patents require the use of force to enforce one’s rights, patents are not natural rights and were not recognized as so by Locke and the founders, among other arguments.  I have discussed most of these arguments earlier and will put the links in below.  One of their favorite fall back arguments is that patents limit what I can do with my property.  For instance, a patent for an airplane (Wright brothers) keeps me from using my own wood, mechanical linkages, engine, cloth, etc. and building an airplane with ailerons (and wing warping).  This according to the libertarian argument is obviously absurd.  After all it is my property.  Here is an article Scarcity, Monopoly, and Intellectual Property on the Von Mises website where you can see almost every variation on the arguments mention above either in the article itself or in the comments.

Can I do whatever I want to with my property, or are there restrictions?  Well when I buy a book, a movie, or a song, it does not give me the right to make unlimited copies of them.  I have a property right in the physical book, but not the rights (copyrights) to make copies.  Of course, many Libertarians think copyrights are absurd also, so let’s look at another example.  Let’s assume you own your house and land outright.  Does that give you the right to do whatever you want to with you land?  Most likely, your land has easements for utility lines, such as water, gas, sewer, electricity.  You are not allowed to do anything that interferes with those easements.  You might object that I don’t own the easement, so this is a bad example.  So let’s say you own a bulldozer, does that give you the right to bulldoze my apple orchard and build a house there?  It is your property after all and according to the libertarian argument you are allowed to do whatever you want to with your property.  You might object, that of course the libertarians did not mean that you could take advantage of my property to build on.  Of course that begs the question, what is property?  If a patent and copyright are property rights, then this is exactly the same situation.  Another example where you are prohibited from doing something with your property, is in the case of water drainage.  In particularly wet areas of the US you are prohibited from moving the earth on your land so water drains onto your neighbors property more freely – and no this is not an EPA rule, this is common law property rights.  In parts of the country where water is scarce you are prohibited from damming up water on your land.  If you buy land in a residential neighborhood you are prohibited from setting up a pig farm.  Just because I own a gun, doesn’t give me the right to go around shooting people.  The libertarian argument that patents are not real property rights because they prevent others from doing something with their property fails even the most cursory review.

One of the common themes that runs throughout all Libertarian arguments against patents is that Libertarians’ do not seem to know what property rights are, or how they arise.  Here is a post on point, Property Right, Possession, and Objects; this post not only explains the proper basis of property rights, but why the Libertarian point that property requires possession is a fallacy.  Libertarians have failed to provide a clear definition of what property rights are and how they arise.  In fact, most anti-patent libertarians believe property rights are a useful social convention for distributing scarce resources.  This is interesting, because they can become so adamant about what is their property.  But nothing in this concept of property has anything to do with RIGHTS.  If another, better system comes along for distributing scarce resources, then your property is gone.

Property rights do not give the owner the right to do whatever they want with their property.  The source of property rights is creation, not the idea that it is a socially useful convention.  Patents recognize the metaphysical fact that the inventor is the creator of his invention and are completely consistent with other property rights in prohibiting an owner of other property from using it to build his invention.

 

 

Below is a list of other Libertarian arguments against patents and why they fail.

 

Inventions are not scarce:

Scarcity – Does it Prove Intellectual Property is Unjustified? 

 

Patents are monopolies

Patents: Monopoly or Property Right a Testable Hypothesis 

If patents are a monopoly, as some suggest, then it should led to certain outcomes.  A close examination shows that none of the supposed monopoly effects result from granting patents.

 

Monopoly/Rent Seeking vs. Property Rights/Intellectual Property

This post explains the characteristics of a monopoly and a property right and poses three questions to show the difference.  Patents fit all the characteristics of a property right and none of a monopoly.  Note that professional license, such as a law license has some of the characteristics of a monopoly.

 

More on the Myth that Patents are Monopolies 

This post contains a number of quotes from philosophers explaining that patents are not monopolies.

 

The Myth That Patents are a Monopoly 

This post compares the definition of a monopoly to the rights obtained with a patent.  It shows that the rights obtained with a patent do not confer a monopoly.

 

Patents are Natural Rights 

This post traces the ideas of Locke and William Blackstone to show patents and copyrights are natural rights.

 

Patents inhibit the growth of technology:

Source of economic growth

This post shows that those countries with the strongest patent systems are the technological leaders of the world Patents: Monopoly or Property Right a Testable Hypothesis

 

Patents require the use of force

This is one of the more absurd arguments by libertarians.  All property rights are enforced by the government’s use of force.  If someone trespasses on your land or steals your car, the government threatens or uses force to get it back.  The same is true for patent, which are property rights in inventions.

 

 
Natural Rights: Objective, Subjective and Volition

I often have people say Natural Rights do not exist.  Then they point to something like the Earth and state the Earth is a sphere – that is real, the mass of the Earth is real and can be measured, but the Right to Property or the Right of self ownership are not real, they don’t exist in nature and there is nothing natural about them.  A similar complaint is that Natural Rights are subjective, while the mass of the Earth is objective.

This sort of argument represents an extreme empiricism point of view and confuses objective with subjective with volitional.  Here are the definitions of these words from web based dictionaries.

Objective: (of a person or their judgment) not influenced by personal feelings or opinions in considering and representing facts.

Subjective: based on or influenced by personal feelings, tastes, or opinions.

Volition: 1) the act of willing, choosing, or resolving; exercise of willing: She left of her own volition. 2. a choice or decision made by the will.

Note that a choice can be objective or subjective but both are exercising one’s will.  One can choose to not believe the world is a sphere (technically a spheroid and not a perfect spheroid).  One can choose to ignore the objective facts and contend the Earth is flat.  This does not make the decision to understand the Earth is a spheroid subjective.  Note the Catholic Church choose to believe the Sun rotated around the Earth, despite the objective facts.  Global warming (AGW) prophets ignore the facts every day.  It is clear that just because something is volitional does not make it subjective.

But what about Natural Rights or ethics, there are no objective facts involved according to these people.  As we established above, just because something is volitional (i.e., a choice) does not make it subjective.  Euclidean Geometry (EG) is not based on any objective facts.  It is a purely logical system and devoid of any empirical facts, does that mean it is subjective?  There have never been any two perfectly parallel lines that go on forever and finding or not finding such lines is irrelevant to EG.  Does this mean that Euclidean Geometry is subjective?  Does it mean it is not real?  Well the answer to any problem in EG is not based on personal feelings or opinions, it is based on facts, but not empirical facts.  But is EG real?  Well certainly the mathematical system of Euclidean geometry exists.  You might object that EG is not based on empirical facts, but it is influenced by them.  Two perfectly straight parallel lines might not exist in nature, but close representations of them do exist and are used in construction and numerous other area’s every day.

The extreme empiricist wants to deny any higher order concepts exist.  So to the extreme empiricist the number four does not exist.  Four oranges exist and four nails exist, but four does not exist.  This sort of thinking, would deny the existence of gravity.  Things fall to the Earth and the Earth rotates around the Sun, but gravity is not an empirical fact; it is a scientific theory.  A scientific theory is a model of nature that explains and predicts many different empirical facts.

Locke explained Natural Rights in terms of a “state of nature.”  He stated that when man lived by himself, he necessarily owned himself and the products of his labor.  Locke’s theory of Natural Rights explains why slavery is illegal, where property rights come from, why theft, murder, and assault, are illegal.  Almost all of our common law is based on Natural Rights.  It is an extremely powerful theory, much like Newtonian gravity and motion, or evolution.  The Marxists attacked Locke based on the idea that people lived in groups.  This is an intellectually dishonest sleight of hand.  Locke was not making an empirical argument, he was making a logical argument.  It is the same as Euclidean Geometry starting with the idea that two parallel lines never intersect.  The power of Locke’s ideas is undeniable.  The results were the creation of the industrial revolution, unparallel reduction in human suffering, the elimination of slavery and the elimination of force as an accepted method of settling disagreements.

Ayn Rand explained that values are only possible to living things, because life faces the metaphysical choice of life or death.  Ethics is the selection of those rules consistent with life.  The ethics of a human being are different than the ethics of a tree.  Man is the only species that does not have a built in ethical system or instinct.  Man is volitional, so he can choose an ethics of death.  However, such an ethical system is a contradiction in terms, since only something that is alive can have values.  Ethics is based on the fact of life and the only logically consistent ethical system is one that chooses life.  Humans are rational animals and therefore must have an ethical system consistent with their nature.  Since reason is a personal attribute (not collectivist), ethics is about a set of rules that allow individuals to exercise their attribute that is necessary for survival.  Thus any ethical system that limits or undermines man’s reason is inherently an ethics of death, which is a contradiction in terms.  This means that man must own himself, because the ability to think without the ability to act is meaningless.  Now we are back to Locke.

Natural Rights and ethics are based on objective reality.  You can choose to ignore these facts, just as you can choose to ignore gravity, but you cannot escape the reality that to do so is to choose death in both cases.

 
CLS v. Alice Oral Argument

Reading the transcript of the oral argument at the Supreme Court in this case is like listening to bunch of stoned college freshman debating Jonathan Livingston Seagull.  Not one person involved in the discussion would pass a first semester law school class in patent law.  None of the people involved are patent attorneys, none of them have a solid technical background, none of them understand how a computer works, none of them of legally or factually competent to be patent attorneys.  Everyone of the people involved in this oral argument should have recused themselves as incompetent

Alice’s attorney failed for three reasons: 1) he is not a patent attorney, 2) he tried to make sense of the Supreme Court’s earlier decisions, which a full of logical contradictions, 3) he failed to define what an invention is and what an abstract idea is.  CLS’s attorney was unscrupulous and played fast and loose with the law and the facts as I will explain below.

Because the oral argument was so incoherent, I will just highlight the parts that I found outrageous, interesting, or nonsensical.

Abstract Idea:  Justice Breyer is using the technique of all charlatans and refusing to define what an abstract idea is.  He should be thrown off the court for this stunt.  The abstract idea exception to 35 USC 101 is illogical.  Any truly abstract idea would not meet the requirements of 35 USC 112 and that is where this issue should be dealt with.  But Justice Breyer is not interested in logic, he likes using an undefined phrase that he can manipulate to attack any patent.

Justice Breyer’s use of analogies is against the law.  An invention is defined by its claims and the claims must be taken as a whole (35 USC 101 and Conservation of matter and energy).  The reason Breyer uses analogies is because he is too stupid to be able to understand the actual invention and is incapable of reading a claim.

Here is an example of this

I mean, imagine King Tut sitting in front of the pyramid

10 where all his gold is stored, and he has the habit of

11 giving chits away.  Good for the gold, which is given at

12 the end of the day.  And he hires a man with an abacus,

13 and when the abacus keeping track sees that he’s given

14 away more gold than he is in storage, he says, stop.

15 You see?

16  Or my mother, who used to look at my

17 checkbook, when she saw that, in fact, I had written

18 more checks than I had in the account, she would grab

19 it.  Stop.  You see?

20  So what is it here that’s less abstract that

21 the computer says, stop?

 

Using analogies to inventions is completely useless.  The law requires the invention be evaluated on the patent, not on some absurd analogy.  I warned Alice about this.  Alice’s council should have refused to deal in hypotheticals and pointed to the law.  They also should have defined what an invention is and what an abstract idea is.  An invention is a human creation that has an objective result.  Here Alice’s invention is a specially programmed computer.  Those do not exist separate from man.  Therefore Alice’s invention is a human creation.  Alice’s invention has an objective result of affecting a transaction if all the conditions are satisfied and not affecting a transaction if any of the conditions are not satisfied.

 

Here is an excellent analogy to the absurdity of Justice Breyer’s statements that using a computer to implement the invention is irrelevant, by my good friend and patent attorney Peter Meza, “A new idea for a current mirror does not become patent eligible merely by tacking on a transistor to carry it out.”

 

Another idiotic statement by Breyer when Alice’s counsel suggests Breyer’s analogy is caricature.

 

JUSTICE BREYER:  Of course it’s a

20 caricature.  It’s a caricature designed to suggest that

21 there is an abstract idea here.  It’s called solvency.

There is an abstract idea in every invention.  That is like saying the LASER is abstract because it uses the ‘abstract idea’ of stimulated emission.  Breyer is an idiot.  He uses analogies because he is totally incompetent in the technology, so he has to bring up something he does understand.

 

Justice Sotomeyer seems to be creating a new exceptions to 35 USC 101

 

JUSTICE SOTOMAYOR:  I’m sorry.  But ­­ but

20 what it appears to be, it sounds like you’re trying to

21 revive the patenting of a function.  You used the word

22 “function” earlier, and that’s all I’m seeing in this

23 patent is the function of reconciling accounts, the

24 function of making sure they’re paid on time.  But in

25 what particular way, other than saying do it through a

1 computer, is this something new and not function?

 

Was there ever a rule against patenting a function.  Patent law allows, actually requires that well known complex functions not be described in detail.  Thus we do not claim the transistors, resistors, capacitors in a low pass circuit or a transceiver.  Claiming a low pass filter is claiming a function: claiming a transceiver is claiming a function.  These Justices are idiots.  The function of error correction code is to correct errors.  A patent on an error correction code is a patent on the function of correcting error in the transmission of data.  The claims do not recite I claim intermediated settlement (whatever that is – note this is not a standard term used in banking)

 

Justice Scalia seems to be slowly learning some patent law.  Here he recognizes that this case in not about novelty.

 

JUSTICE SCALIA:  Well, I’m not saying use a

5 computer is ­­ is much of a novelty.  I mean, that’s ­­

6 that goes to whether it’s novel or not.  If you just say

7 use a computer, you haven’t invented anything.  But if

8 you come up with a serious program that ­­ that does it,

9 then, you know, that may be novel.  But that’s a novelty

10 issue, isn’t it.

 

Note the claims never say “use a computer” but these people are too ignorant to read claims.

 

Justice Kennedy shows he knows nothing about patent law.  Alice’s attorney should have force him to analyze the claims.  He should have said to Kennedy and Breyer the invention is defined by the claims, if you wish to discuss this invention then you must look at the claims and tell me what it is you are referring to.

 

 JUSTICE KENNEDY:  Suppose I thought ­­ and,

9 again, it’s just a thought because I don’t have the

10 expertise ­­ that any computer group of people sitting

11 around a coffee shop in Silicon Valley could do this

12 over a weekend.  Suppose I thought that.

 

Here both Alice’s attorney and Justice Sotomeyer, who is suppose to be a copyright attorney, prove their ignorance of a concept any law student taking copyrights should know the answer to – my only caveat to this is perhaps this was a backhanded way of saying Alice never wrote any code.  While CLS makes this claim, I seriously doubt it is true.

 

 JUSTICE SOTOMAYOR:  Is your software

15 copyrighted?

16  MR. PHILLIPS:  No, I don’t believe so.

 

Of course the software is copyrighted.  This is the incompetent leading the incompetent.

 

Alice’s counsel attempts to force Justice Kagan to look at the claims, but she proves her ignorance of patent law by ignoring the claim limitations.

 

 MR. PHILLIPS:  I’m saying both actually.  I

15 mean, I’m making both of those arguments.  I ­­ I

16 believe that if you analyze the claims and you don’t

17 caricature them and you don’t strip them out of the

18 limitations that are embedded in there, this is not some

19 kind of an abstract concept.  This is not some kind ­­

20 it’s not an abstract idea.  It’s a vary ­­

21  JUSTICE KAGAN:  So putting the computer

22 stuff aside completely ­­

 

Here Alice’s attorney attempts to get back on track.

So my suggestion to you would be follow that

15 same advice, a liberal interpretation of 101 and not a

16 caricature of the claims, analyze the claims as written,

17 and therefore say that the solution is 102 and 103 and

18 use the administrative process.  If you ­­

 

This might be a hopeful sign.  Justice Scalia is pointing out that not all the Justices agree on this interpretation of an abstract idea.

 

JUSTICE SCALIA:  And four is not five

10 anyway, right?

11  MR. PHILLIPS:  That’s true.

12  JUSTICE SCALIA:  Four is not five.

 

Another hopeful sign by Justice Scalia.

 

JUSTICE SCALIA:  By the way, we ­­ we have

16 said that you can’t take an abstract idea and then say

17 use a computer to implement it.  But we haven’t said

18 that you can’t take an abstract idea and then say here

19 is how you use a computer to implement it ­­

 

Justice Kagan proves she can’t read a claim or a specification and has no intention of doing so.

 

JUSTICE KAGAN:  Well, how are you saying the

5 how?  Because I thought that your computers ­­ that your

6 patents really did just say do this on a computer, as

7 opposed to saying anything substantive about how to do

8 it on a computer.

 

Justice Kagan proves she is incapable of reading claims or the patent statute

 

 JUSTICE KAGAN:  No, but exactly.  I mean,

22 the claim would have said something along the lines of,

23 you know, there’s this process by which people order

24 products and we want to do it over the Internet, we want

25 to do it electronically, and we will use a computer to

1 do that, to essentially take the process of mail order

2 catalogues and make it electronic.

 

 

Mr. Phillips lies to himself and the court about his ability to write claims.  Mr. Phillips is not a patent attorney and I am sure has never written a claim in his life.  He does not have the technical background to write claims and does not have the legal knowledge to do so.

 

 MR. PHILLIPS:  I could certainly ­­ I think

4 I could write a claim ­­ a set of claims that I believe

5 would satisfy 101.  And ­­ and to the extent that

6 you’d ­­ that you’d think those are no different than

7 the ones I have here, then my argument is simply I think

8 I satisfy 101 with the claims we have before us,

 

Here is blatant lie by Mr. Perry.

On the abstract idea, Justice Ginsburg, you

8 asked Mr. Phillips what’s the difference between hedging

9 and this claim. There is no difference.  This is

10 hedging.  It is hedging against credit default rather

11 than price fluctuation, but it is simply hedging.

 

The definition of hedge is “Making an investment to reduce the risk of adverse price movements in an asset.”  Nowhere in Alice’s claims is there any investment to reduce the risk of adverse price movements.  Mr. Perry should be disbarred.

 

 

Another blatant lie by Mr. Perry

This claim has simply two steps.  It’s very

18 simple.  “First, debiting and crediting on a realtime

19 basis the relevant shadow records; and second, by

20 periodically affecting corresponding payment

21 instructions.”

 

The patents involved are USPNs 5970479, 6912510, 7149720, and 7725375.  All of the claims require more than Mr. Perry’s lie.  He also shows he does not understand the difference between the claims and the specification. He should be disbarred.

 

 

Justice Roberts is on the right track but proves he is incompetent to rule on patent cases.

 

CHIEF JUSTICE ROBERTS:  Well, that’s a

25 little more complicated.  He referred us to Joint , which is not a change in how

2 computers work.  But it is ­­ constitutes the

3 instructions about how to use the computer and where it

4 needs to be affected.  And just looking at it, it looks

5 pretty complicated.  There are a lot of arrows and

6 they ­­ you know, different things that go ­­

 

 

Mr. Perry in the quote below has attempted to redact the whole specification.  Since Mr. Perry is not a patent attorney perhaps he doesn’t understand the claims have to be supported by the specification.

 

It’s 4 columns.

6 It’s less than five pages in the printed appendix that

7 actually pertains to this invention.  And it contains no

8 disclosure whatever.

 

 

Mr. Perry attempts to define what would be patentable.

 

MR. PERRY:  Your Honor, there are many

1 examples.  One would be a technological solution to a

2 business problem.

Mr. Perry isn’t this what Alice’s invention is?  Of course you are too ignorant to read the claims, so you wouldn’t know.

 

Justice Kennedy proves his ignorance of patents.  All inventions can be described as a method or an apparatus.

JUSTICE KENNEDY:  Well, I ­­ I ­­ in my

16 language, I’ve called that mechanical rather than

17 process.  Can you give me an example of process?

 

This admission by CLS should win the argument for Alice in a rational world – but this is not a rational world.

  MR. PERRY:  At a point in time in the past,

12 I think both of those (word processor/spreadsheet) would have been technological

13 advances that were patentable.

14  JUSTICE SOTOMAYOR:  How?

MR. PERRY:  Today ­­ because they would have

16 provided a technological solution to a then unmet

17 problem.

 

 

Mr. Perry is putting words in other people’s mouth that are clearly not true and demonstrating his lack of understanding of physics and inventions.  Every invention in the history of the world is a combination of known things/elements/steps because you can’t create something from nothing.  This is because of conservation of matter and energy.  In addition, section 112 requires that you explain your invention in language people understand, which means it has to describe the invention in terms of things that are known.

 And here we know that these patents don’t

1 claim anything that was not conventional, well

2 understood, and routine.  We went through that in great

3 detail, and Alice has never disputed a word of it.

“It is

10 possible to do the business methods of maintaining

11 accounts, adjusting accounts, and providing an

12 instruction without a computer or other hardware.”

 

It is possible to separate the seeds in cotton without a cotton gin, SO WHAT.

 

More stupidity from Mr. Perry.

We know from Benson, the Court’s seminal

20 computer implementation case, that if you can do it by

21 head and hand, then the computer doesn’t add anything

22 inventive within the meaning of the 101 exception.  That

23 is the holding of Benson.  And the Court reiterated that

24 in Mayo.

 

You can type by hand, you can do spreadsheets by hand.  Mr. Perry has just contradicted himself, but appears to be too technically incompetent to understand this.  Most likely so are most of the Justices.

 

Mr. Perry proves he does understand how claims of a patent work.  This is the sort of thing a first year associate in patent law should know.  Once again we have the incompetent leading the incompetent.  Alice’s invention cannot be implemented without a computer because of the need nearly real time communications.

 CHIEF JUSTICE ROBERTS:  What if ­­ what if

9 you can do it without a computer, but it’s going to

10 take, you know, 20 people a hundred years?  In other

11 words, theoretically, you can replicate what the

12 computer does ­­

13  MR. PERRY:  Two answers.

14  CHIEF JUSTICE ROBERTS:  ­­ but it’s

15 impractical without looking to do it on the computer?

16  MR. PERRY:  Mr. Chief Justice, first, these

17 claims literally read, as Alice reads them, on a single

18 transaction between two parties, so it’s not 20 people

19 for a hundred years.  It’s one person sitting in a room,

20 so that’s not a problem.

21  Second, if what is being claimed is the

22 necessary speed or efficiency or data crunching

23 capabilities, if you will, of a computer, then it would

24 have to be claimed, and there’s nothing claimed here.

25 All that is claimed ­­ and my friend is going to stand

 

No Mr. Perry the claims would never say any such thing.  But you are too incompetent to know that.

 

Mr. Perry proves he does not understand the purpose of 35 USC 112.  He is not a patent attorney.  Factually and Legally is not competent to be one.

MR. PERRY:  If I can answer in two steps,

20 Justice Kagan.  First in the negative:  What the

21 applicant or patentee must do ­­ must not do is simply

22 describe the desired result.  That would take us back to

23 State Street.  That would simply say:  I claim a magic

24 box that buys high and sells low or vice versa, I

25 suppose, I claim a magic box for investing.  That’s what

these patents do.

 

Listening to Mr. Perry is like listening to a teenage bull session.  Note that he makes a completely contradictory statement without even blushing.

MR. PERRY:  No, Your Honor.  I think the ­­

20 actual description of the programming is a 112 problem.

21 I agree with that, A 112 issue.  That is the realm of

22 the written description requirement.  What is a 101

23 problem is it is on the applicant to do more than simply

24 describe the results, simply say:  A magic box that does

25 intermediate settlement.

 

Justice Ginsburg clearly thinks she is a queen who can manipulate reality.  She is clearly too incompetent to even understand the contradictions and absurdities of her (the courts) own writings on patents.

 Justice Ginsburg, this Court’s precedents

3 are clear.  They are unanimous.  They just need to be

4 applied.  To suggest that there is confusion that needs

5 to be addressed by retreating, beating a retreat from

6 recent unanimous decisions, would simply reward

7 intransigence, difficulty, refusal to adhere to what are

8 clear precedents

 

 

Mr Verrilli proves he does not have the slightest idea how a computer works.  Any software is part of computing technology.  Patents are not about improvements, they are about whether the invention is novel (non-obvious).  Many designs around inventions are not improvements.  Mr. Verrilli should be fired for this clear ignorance of the law, but as a political appointee competence is irrelevant.

 GENERAL VERRILLI:  Mr. Chief Justice, and

17 may it please the Court:

18  An abstract idea does not become

19 patent­eligible merely by tacking on an instruction to

20 use a computer to carry it out.  A computer makes a

21 difference under Section 101 when it imposes a

22 meaningful limit on the patent claim.  That occurs when

23 the claim is directed at improvement in computing

24 technology or an innovation that uses computing

25 technology to improve other technological functions.

1 That’s the test that we believe is most faithful to this

2 Court’s precedents in Bilski and Mayo.

 

Mr. Verrilli is incompetent to read the claims of a patent, so he ignores them.

 

At least Justice Ginsburg is beginning to understand that ‘abstract idea’ has never been defined.  Clearly Alice’s invention is a concrete invention, it solves a real problem using technology.  Clearly, the Obama Administration is doing the bidding of Wall Street and trying to ensure that there are no patents having anything to do with finance.  But neither the Obama Administration nor Wall Street can provide a rational explanation for this, so they resort to argument of “tradition.”

 JUSTICE GINSBURG:  I have a question about

3 how do you identify an abstract concept.  The ­­ a

4 natural phenomenon, a mathematical formula, those are

5 easy to identify, but there has been some confusion on

6 what qualifies as an abstract concept.

7  GENERAL VERRILLI:  We would define

8 abstract ­­ an abstract concept as a claim that is not

9 directed to a concrete innovation in technology,

10 science, or the industrial arts.  So it’s the ­­ it’s

11 abstract in the sense that it is not a concrete

12 innovation in the traditional realm of patent law.

 

Justice Sotomayor proves that she cannot understand basic logic.  If there are no business patents, then there are no patents.  All patents are directed to a business, people are not getting patents so they can hang a plaque on their wall.

 JUSTICE SOTOMAYOR:  If we were to say that

19 there are no business patents ­­

 

Patent law has now devolved to the state of politics.  As this oral argument proves, there is no logic, the statute is ignored, the claims are not analyzed, the only real question is who has the most political pull.  Patent law has become a cesspool in the same vein as anti-trust law, environmental law, and the Obama Administrations belief that they can change statutory law by Executive Orders.

 

 
Adam Carolla and the Podcast Patents: The Real Story

Adam Carolla is being sued by Personal Audio LLC and has created a FundAnything (crowdfunding site) campaign to raise money for his legal defense.  He is billing this dispute as a patent that will kill off podcasting.  This is the sort hyperbole people who don’t want to pay inventors engage in.  Note Mr. Carolla wants to be paid for his intellectual property.  Since Mr. Carolla is making the standard arguments against inventors who attempt to enforce their property rights, I will examine some of the arguments below.

1.  The inventor will not receive any of the profit from this lawsuit, only a shell company, whose only purpose is to sue people.

One of the inventors on the patent is a serial entrepreneur and is an owner of Personal Audio LLC who is suing Adam Carolla.  James Logan founded MicroTouch Systems in the 80s and served on the on the Board of Directors of Andover.net, the company that acquired Slashdot back in 1999.  He founded, Personal Audio, in 1996.  The original company was Personal Audio Inc. and the patents are now owned by Personal Audio, LLC.  Personal Audio invested $1.6 million developing this technology.  As Mr. Logan points out, when inventors are paid for their inventions it reduces the risk of investing in new technologies.  This increases the willingness of investors to put money into inventions, which results in more advances in technology.  In addition, Mr. Logan explained that he and the company want to see podcasting thrive, because that will maximize their profit.  Killing off podcasting is not the goal of or in the interest of Personal Audio.  Mr. Carolla statements to the contrary are just nonsense.

 

Conclusion: Adam Carolla is spewing BS.

 

 

2.  The inventor never made anything.

As the inventor, James Logan, points out Tesla never made anything either.  Most of Edison’s inventions were sold to companies and he produced nothing, the same can be said of Bell and many of the great inventors of the US.  Mr. Logan points out that many inventors have no interest in manufacturing, marketing, distribution etc.  But today’s system forces inventors to work for a company.  You would think someone in the media would have read Adam Smith and understand division of labor.

In the late 1800s it was quite common for people to specialize in inventing and over 85% of those inventors who obtained a patent eventually sold or licensed it to a manufacturer.  Today the attack on inventors mean that even when inventors have a valid, issued patent that has been upheld in court (Personal Audio v. Apple), people like Mr. Carolla, argue they have the right to steal other people’s inventions.

Note that Mr. Carolla never makes anything.  He sells his comedy, which is just a bunch of words, until a recording device and a transmission device turns that into a product.  Perhaps actors and comedians should not be paid either.

Imagine if actors and authors could not sell their creations without first having a company turn them into a book, movie, or recording?  That is exactly what Mr. Carolla is advocating.

 

Conclusion: Adam Carolla is spewing BS.

 

 

3.  The invention was created by other people independently.

This is a common argument by people who don’t want to pay inventors.  The patent in question was applied for in 1996 and the Patent Office divided the original patent application into three or more patents.  The first patent issued in 2001, so the world has known about this technology for a long time.  This makes the claim of independent invention absurd.  But on top of that according to Mr. Logan these patents have been cited in over 1300 other patents.  Clearly the world was aware of his technology.  The idea of independent invention without knowledge of Personal Audio’s invention is absurd.   The US had a system for disputes between nearly simultaneous inventions until the passage of the American Invents not Act in 2011 and this process was rarely invoked.  The infrequency of this process was a major argument for changing our laws from a first to invent to a first to file.  Independent invention is a diversionary argument, to distract from the fact that people like Carolla want to steal other people’s work.

 

Conclusion: Adam Carolla is spewing BS.

 

 

4.  The patent is not valid and is overly broad.

This is a favorite of the leaches who do not want to pay inventors.  This patent was applied for in 1996.  No one had thought about podcasts at that time.  Few were thinking about sending large files or streaming files.  A high speed modem at the time was 64Kbaud and compression techniques were much more limited.  This invention was ahead of its time so it is very unlikely that there is prior art to invalidate this patent.  As a result of the invention being ahead of its time, it can validly ask for and receive fairly broad claims.  However, the claims do not cover all podcasts, as the hyperbole of Mr. Carolla and other suggest, they are directed to playlists.

Personal Audio LLC sued Apple over these same patents and won.  Apple already raised these issues in court and lost.  It is complete nonsense to suggest that these patents are overly broad and should never have been issued, without providing specific evidence that was not raised by Apple.  Clearly, Mr. Carolla has no respect for the law and more importantly no respect for inventors.

 

Conclusion: Adam Carolla is spewing BS.

 

 

5.  The Patent was applied for on March 4, 2009 and granted on February 7, 2012

This comes from TechDirt which has no compunction about lying about patents.  The patent was filed for in 1996.  TechDirt then argues that the Patent Office is allowing patents too fast.  Imagine if you built a house, bought a stock, or a car and it took three years to obtain title to it.  You would think you were living in a third world country, which is exactly what is happening to inventors.

 

 

 

Mr. Carolla is a hypocrite who thinks artists should be paid for their work, but not INVENTORS.  I bet if I start selling copies of Mr. Carolla’s performances he would sue me in a nanosecond.  He would talk about how I was stealing his work, but inventors are supposed to work for nothing.  Note all the above arguments apply to actors/comedians as well as inventors.

 

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