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.
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.
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
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
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
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.
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 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.
This paper has some interesting points, HIGH TECHNOLOGY ENTREPRENEURS AND THE PATENT SYSTEM: RESULTS OF THE 2008 BERKELEY PATENT SURVEY.
We also report that for many startup companies, patents are an important part of the mix of strategies used by them to capture competitive advantage from their technology innovations. But this important role tends to be much more pronounced among biotechnology and “hardware” companies (including both medical hardware such as surgical devices, and IT hardware, such as computers and semiconductors) than among software and Internet startups.
Prior research shows that this small share of firms is disproportionately responsible for innovative output in the economy.
Firms that seek venture-funding appear to be patenting more actively prior to the funding event (and for the purpose of securing funding), and venture-capital investors appear much less willing to fund companies that hold no patents.
Here is another study on point Why VCs and Start-ups should Love IP
While having intellectual property increases the probability of success, those who manage intellectual property well have an even higher probability of success. In certain sectors, such as healthcare, data demonstrates the value of higher quality portfolios. In other sectors, such as telecommunications or information technology, the effect is less prominent – although still clearly and demonstrably present.
The book The Invisible Edge makes a broader point.
“Without intellectual property protection a business can have no sustainable advantage.”
CLS’s Reply Brief is not only illogical it is filled with intellectually dishonest statements. The lack of logic is not surprising given the Supreme Court’s confused and disorganized thinking on the subject, but the intellectual dishonesty is inexcusable. Despite this a careful reading of CLS’s brief shows that their argument fails on its face. If you don’t have a winning argument, confuse and overwhelm them.
CLS’s arguments boil down to Alice’s patent claims preempt the idea of an escrow account and they are a non-practicing entity to boot.
The claims asserted by Alice recite the fundamental economic practice of intermediated settlement or escrow, in which a “middleman” stands between the counterparties to a transaction and effectuates the transfer of entitlement once all conditions are satisfied.
There are so many problems in this statement it is hard to know where to begin. First of all ESCROW has a definition: it is money, property, a deed, or a bond put into the custody of a third party for delivery to a grantee only after the fulfillment of the conditions specified. The claims do not cover this situation. The term ‘intermediated settlement’ does not have a well defined meaning. You cannot find a definition for this term in the online finance dictionary. So it clearly is not a fundamental economic concept. CLS is using the charlatan technique of purposely blurring the definition of words.
Allowing patent claims like these would effectively foreclose the productive use of economic concepts and other fundamental principles in our increasingly computerized Information Age, in contravention of the Constitution and the Patent Act.
The claims are clear and if CLS wants to computerize an escrow arrangement it can do so. This is just a lie that Alice’s patent preempts a fundamental principle and the lawyers who wrote this should be sanctioned for lying to the court. Second the purpose of the Constitution is to protect the rights of Inventors. No patent forecloses the productive use of any invention. This is an attempt to confuse patent law property rights with anti-trust law. Property rights provide for the owner the right to exclude others from using their property. Ownership of a building or an invention does not foreclose economically productive uses of the property.
Here is another dishonest statement in CLS’s brief.
The economic concept of intermediated settlement is an abstract idea under the approach taken in Bilski and subsequently endorsed by the PTO.
Note the intellectual slight of hand here. Alice did not claim the concept of an intermediated settlement. Instead of dealing with the claims, CLS attempts to provide a broad generalization of the claims and then analyze the abstraction. This is against the law and fundamentally dishonest. The court must deal with the claims, not CLS’s self serving broad categorization of the claims.
Property Rights, Patents, and Monopolies
CLS and some judges are suggesting the blatantly false statement that patents are monopolies. Patents are property rights. Property rights are the result of creation, see John Locke. This was recognized in common law and can be found in Sir William Blackstone’s Commentaries on the Laws of England. For more information see Patents are Natural Rights http://hallingblog.com/patents-are-natural-rights/.
Antitrust law is never applied to a property right. It only can be invoked based on how property rights are used. Enforcement of one’s property rights in court cannot be consider a violation of antitrust law. This whole line of reasoning is straight out of a Marxist text and should not be tolerated. But on top of it Alice’s patents do not give it property rights in electronic escrow accounts.
I have often stated that using loose definition is the handmaiden of charlatans and tyrants and CLS seems to be quite good at it.
Laws of nature, natural phenomena, and abstract ideas are not patent-eligible under this Court’s established construction of 35 U.S.C. § 101. The asserted claims of Alice’s patents are ineligible under that standard because they attempt to monopolize the abstract idea of intermediated settlement.
First of all property rights do not monopolize anything. This line of reasoning by CLS is straight from Marxist dogma. CLS and the courts have thrown around the phrase abstract idea but failed to define it. Perhaps Thomas or Scalia will demand a definition.
Let’s examine what a reasonable definition of an abstract idea would be. Some of the potential definitions of “Abstract” from Dictionary.com are provided below:
1. Considered apart from concrete existence: an abstract concept.
2. Not applied or practical; theoretical. See Synonyms at theoretical.
3. Difficult to understand; abstruse: abstract philosophical problems.
4. Thought of or stated without reference to a specific instance: abstract words like truth and justice.
5. Impersonal, as in attitude or views.
6. Having an intellectual and affective artistic content that depends solely on intrinsic form rather than on narrative content or pictorial representation: abstract painting and sculpture.
Clearly the first or second definitions appear to be the closest to what the Supreme Court means when speaking of patents.
Now here are some of the definitions of “idea” from the same source.
1. Something, such as a thought or conception, that potentially or actually exists in the mind as a product of mental activity.
2. An opinion, conviction, or principle: has some strange political ideas.
3. A plan, scheme, or method.
4. The gist of a specific situation; significance: The idea is to finish the project under budget.
5. A notion; a fancy.
The first definition appears to be the most appropriate. So what we end up with is a thought or conception that is separate from concrete existence or not applied to the practical. In the broadest sense of the word, every patent defines an invention that has been abstracted. An invention by definition is an abstraction or a category of things. If this is what the judges mean, then the standard is complete nonsense, since it negates every patent.
If we use the definition of an Abstract Idea given above “a thought or conception that is separate from concrete existence or not applied to the practical”, then 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. The ABSTRACT IDEA exclusion to 35 USC 101 should be dropped, because any logical definition of an abstract idea is excluded by 35 USC 112, first paragraph. It should also be dropped, because, Judges should not read into statutes things that are not there.
A computer is not an abstract idea, it uses electrical power, generates heat, causes electrons to move. Those are all real world effects.
Another poorly defined term is used by CLS in this statement.
The claims asserted by Alice do not include “significantly more” than the abstract idea of intermediated settlement, such that they could be patent eligible under Mayo Collaborative Services v. Prometheus Laboratories, Inc., 132 S. Ct. 1289 (2012). Alice fails to come to grips with the analytical approach this Court articulated in Mayo, which requires an “inventive concept.”
First of all the patent statutes do not discuss an inventive concept. Second of all, the phrase ‘inventive concept’ is not defined in the brief, statute, regulations, or by the Supreme Court or any other US court. Courts do not have the right to reinvent statutes. The requirements for a patent are clear and substituting another term for what the statute says is illegal and should cause any judge to be impeached for subverting the Constitution.
Another poorly defined term used to smear patents by CLS.
Petitioner Alice Corporation Pty., Ltd. Contends that the CLS system infringes “business method” patents that broadly claim a computerized form of intermediated settlement.
Every patent is part of a business and any method patent is therefore broadly speaking a business method patent. The first patent issued in the US was a method of making potash. Since making potash is/was a business the very first patent issued in the US was a business method patent. The people who argue against business method patents have failed to provide a consistent, clear definition of what they mean.
CLS tries to paint Alice’s claims as being the same as Bilski. This is nonsense. Bilski admitted that their claims did not require a computer. Alice’s claims specifically require computers and a communication network.
Note that a series of steps performed by hand can definitely be an invention. The first patent issued in the US was for a method of making potash and all the steps were performed by hand.
Other Points Nonsensical Points in CLS Reply Brief
Alice suggests that its claims do not meet its chosen dictionary’s definition of escrow because they “do not prescribe that the electronic intermediary (or any other third party) receives any money or property.” Pet. Br. 47 (emphasis added). Of course, Alice’s claims do not preclude the receipt of money or property and thus would cover such activity. In any event, nothing in the concept of intermediated settlement requires the physical exchange of money or tangible property.
This shows a lack of understanding of patent law. Either these lawyers should be fired as incompetent or they should sanctioned for lying to the court. No patent claim precludes the use of something outside of the claim. Alice’s claims do not cover the use of an electronic escrow. Claims don’t preclude things, they define what is covered by the claim. If my patent claim on a bicycle includes a shock absorber in the fork, it does not preclude having a solid fork. It also means you can build a bicycle with a solid fork. Here CLS is admitting that Alice’s claims do not preempt an escrow arrangement. But like all charlatans they state it in such a convoluted way that it is hard to untangle the mess to see what it really means.
CLS quotes two Mark Lemley papers. Mr. Lemley is not a patent attorney, has never written a patent claim in his life, is not legally or factually competent to practice patent law. Mr. Lemley is a charlatan who spouts off recycled Marxist ideology applied to patents.
Adam Mossoff takes on the common claim that patent are too vague in his paper THE TRESPASS FALLACY IN PATENT LAW, by Adam Mossoff, 65 Fla. L. Rev. 1687. The argument is often framed as patents are not like real property where you know if you are trespassing another person’s property. This analogy is flawed, he points out, because property rights in land are not limited physical trespass. Property rights include time (future interest), use, and physical boundaries. The proper analogy would be with the estate or all the property rights associated with land. Then he points out that critics of patents actually have no empirical data on litigation involving all aspects of ‘real property’. He also points out that real property disputes often turn on the meaning of arcane terms and arise because legal drafting in not an exact science or math.
I would add that most of the commentators on patents are not legally or factually competent in reading claims. In addition, neither are most judges. (See Is the Supreme Court Competent to Rule on Patent Cases?) This is not because patents are vague or purposely obscure or overly formalistic. Drafting claims is a skill that takes several years to become proficient with. The same is true of being able to interpret a paper on electromagnetics or quantum mechanics and these are very precise sciences.
Most of the people complaining that patents are too vague are not interested in the truth, logic, or reason. They want to destroy all property rights or they are crony capitalists that want a patent system that favors them, particularly against individual inventors and startups.
I have been particularly critical of the whole notion of business method patents. Every patent is part of a business and any method patent is therefore broadly speaking a business method patent. The first patent issued in the US was a method of making potash. Since making potash is/was a business the very first patent issued in the US was a business method patent. The people who argue against business method patents have failed to provide a consistent, clear definition of what they mean.
I have also defined an invention as a human creation with an objective result, while art is a human creation with a subjective result. By objective result I mean that the invention has a repeatable result. For instance, a patent for an incandescent light bulb always produces light when the correct electrical signal is applied to the light bulb. Just because a person performs one of the steps in a claim does not make it invalid. For instance, in the patent for the method of making potash a person performed many if not all the steps. However, if the person is making a non-objective evaluation or decision as part of the method, then the process does not have a repeatable or objective result. This is why most management theories are not patentable. For instance, the popular SWOT (Strengths, Weakness, Opportunities, Threats) analysis relies on experts to define each of these points. If you put different experts into the process then you get a different result. On the other hand double entry accounting yields the same results no matter who is performing the process (as long as they apply it correctly), so it has an objective or repeatable result.
Using this standard I have found that a number of ‘business method’ patents that are invalid. These patents rely on the use of subject matter experts to evaluate something and then provide input in the middle of a process. This does not result in an objective, repeatable result. Now if these experts’ subjective opinions are at the beginning of a process, then this may still provide an objective result. For instance, if the SMEs provide a subjective 1-10 evaluation of certain Strengths in a SWOT analysis and the invention then processes these to determine the mean or rank them is some way, then this is an invention, because if the process receives the same inputs it will provide the same output, i.e, it is repeatable and objective. Alternatively, if the SMEs are provided with processed information at the end of the process, then this is an invention.
This paper explores the philosophy of science. The philosophy of science is mainly concerned with metaphysics and epistemology, but it is not completely divorced from ethics. This paper defines the necessary philosophical underpinning of science. At the end of this paper I will show that the Copenhagen Interpretation of Quantum Mechanics is inconsistent with the philosophy of science. Note that I am not suggesting that every scientist holds or held this philosophy.
Identity: The fundamental principle of science is that A is A (Identity), meaning that things exist; they have certain properties; they always act in accordance with these properties; A does not suddenly become B without a reason. Aristotle had three laws of thought: 1) Law of Identity, 2) Law of non-contradiction, and 3) Law of excluded middle. It seems to me that the second and third laws follow from the Law of Identity. Note for the present discussion we will assume that A is an inanimate object.
Causality is the second tenant of science meaning things happen for a reason or for every effect there is a cause. This means that A is always A unless acted upon by another object/force. For example, gold is always gold unless it is acted on by another object/force. It means a body at rest stays at rest unless acted upon. Causality and Identity result in repeatability. In other words things in the same situation will act in the same way. A mass acted upon by a certain force will accelerate in a consistent way. Identity and causality provide the justification for experimentation. If an experiment is correctly setup to exclude other factors (object/forces) then it will result in the same result, excluding measurement and experimental errors. If any of these tenants were not true, then there would be not point to experimentation. If a lead ball’s mass could suddenly change without any cause, then experimentation would never lead to repeatable results. When we find out experiments are not repeatable, then we know that we have failed to account for a variable. Note the Identity and Causality tenets are the rejection of superstition.
Experimentation: The goal of experimentation is to isolate causes and effects. For instance, if we are to determine if the gravitational effect of an object on Earth is the same, independent of mass, we have to ensure that our experiment does not include other factors. For example, we cannot allow wind resistance in our experiment. This means the objects have to have an equal wind resistance, or better yet, we need to eliminate wind resistance in our experiment.
Since no experiment or measurement can be perfect, we take into account measurement/experimental errors. Note that if these errors are truly random (Gaussian), then they will average out for a continuous random variable and significantly reduce for a discrete random variable. If they are not random, then we have not properly setup of the experiment, meaning we have failed to account for a variable. Note the experimental tenet of science requires that we can trust our senses. This does not mean that our senses give us perfect information, but that the information we receive from our senses is also ruled by the Identity and Causality laws.
Theories: Identity and causality allow us to use logic and reason to categorize and predict results, or form hypothesis and theories. Experiments are used to verify or disprove these theories. Smaller theories can be built upon using logic to create broader theories. For instance, inertia and Galileo’s law of falling can be applied to planets and tides, which is what Newton did in creating his ideas of motion and gravity.
A good scientific theory is one that explains and predicts many individual facts. Every theory so far is incomplete and it is where experiment does not agree with theory that leads to the next big leaps in science. Thus if we assume that heavier object are subject to a greater gravitational acceleration than lighter objects, but we find that lead balls of differing masses fall at the same rate, we know we need to revisit this hypothesis/theory. This also means that there is an evolutionary or expanding nature to scientific theories. Newton’s laws of motion and gravity refined and expanded upon Galileo’s theory of inertia and his law of fall. Einstein’s relativity did disprove Newton, it just refined and expanded on them at speeds near the speed of light and in regions of very large gravity. Part of how we know that Einstein’s theory of relativity is ‘correct’ is that it is consistent with Newton in certain regions and with the body of facts that Newton physics explained. There is a similar thing in mathematics, where we define over what range a statement is true. For instance, if a*b=c, then b=c/a, where a is a non-zero real number.
This evolutionary, expanding nature of scientific theories is the difference between a real science and pseudo science (or at least a poorly formed science). In a pseudo science a new theory can come along and predict totally different results. For instance, under classical economics printing money (counterfeiting) has a negative effect on the economy. Along comes Keynes and suddenly if the government prints money it causes an increase in wealth (GPD).
Perfect Knowledge: Does knowledge have to be perfect knowledge in order to be knowledge? Often scientific theories are attacked because as being incomplete. Every scientific theory so far is incomplete, because we don’t know everything about everything. I am going to postulate that we cannot ever know everything because there is always a deeper layer of knowledge. For instance, Newton explains the effects of gravity but not how it works. In fact, Newton was greatly disturbed that his best explanation of gravity required action at a distance without some intermediate (corpuscle). Knowledge is certainty that a fact or theory is correct within certain limits and therefore repeatable in science. For instance, if a builder assumes that Earth is flat or described by Euclidean geometry will this inaccuracy cause any problems? Even if the builder is constructing a building with a mile long foundation, the error of assuming the Earth is flat is less than two inches or much less than the underlying variation in the terrain. On the other hand if I am sailing across the world or launching a spaceship and I assume that the Earth is flat, then I have a problem. This is like the bounds in mathematics and as long as we know the bound of our knowledge it does not cause any problems. On the other hand, discovering the bounds of our knowledge is where the really interesting science and engineering occur and how we expand the bounds of our knowledge. The idea that knowledge has to be perfect seems to come from Plato’s idea of pure forms. Physics makes it clear that Plato’s ideal forms do not exist and are not necessary for science or realism. Attacking a scientific theory for failure to explain everything is meaningless, it is just saying we have not learned everything. It is only a valid attack on a scientific theory if it predicts something that turns out to not be so – a contradiction. Even then the contradiction may only occur within certain bounds or only matter within in certain bounds, in fact any well tested scientific theory will only be meaningfully incorrect within certain bounds.
In keeping with this idea of imperfect or lack of absolute knowledge, I am sure my thesis (philosophy of science) is not ‘perfect.’ As a result, I have tried to define the minimum requirements for the philosophy of science. I have not for instance included Locke and Newton’s corpuscular ideas, which are really about their philosophy of how physics works.
Statistics as applied to physical sciences is not in conflict with the Law of Identity or Causality. Statistics are a way of bounding our lack of knowledge about certain factors. For instance, if you know all the initial conditions of a coin flip, you can determine whether it will land on heads or tails exactly. In grad school in physics I had to solve a similar problem of a quarter slightly tilted to one side and given an initial velocity, will it land on heads or tails. There is an exact solution, it is not random. Statistics also deal with measurement errors and uncertainty in the conditions of the experiment. None of this in anyway suggests that the Law of Identity or Causality is suspended.
Curve fitting: There has been a popular theory in physics that all we are doing is curve fitting and understanding is illusory and wrong. Curve fitting is something engineers do when working from first principles is too complex. For instance, we know that the resistance of a thermistor varies with temperature, but we cannot solve the relationship from first principles. In this case we will take a number of measurements (experiments) and then just fit a curve so that we can covert an output resistance, actually voltage to a temperature. Curve fitting is useful, but it does not provide an understanding of the underlying phenomena and is generally limited to very specific situations. It is not the goal or what science does. Science looks to understand underlying physical phenomena, not just model it. Curve fitting can tell you the rate that an object will fall to Earth, but not why and it can’t tell you why this is related to planetary orbits.
Animate objects present additional challenges. For instance, a tad pole turns into a frog. Does this violate the law of Identity? The answer is no because a tadpole never turns into a cat or something else. But with animate objects it is necessary to apply the law of identity at a finer granularity. For instance, are you the same person you were ten years ago? Well all the cells in your body have completely changed and you are older, so probably you have some wrinkles and of course ten years of experience you did not have ten year ago. The difficulty with animate objects is that they can use internal energy to change their position or state. But when we look inside of the animate object we see that it acts according (sometime very complex) to the law of Identity and Causality.
Ethics: The philosophy of science does include an ethics, which is that we must report (record) data accurately. Fudging the data in science is the greatest sin in science. This is one of the reasons the proponents of Anthropomorphic Global Warming (AGW) cannot be taken serious. Not only have they repeated lied and fudged the data but their advocates suggest this is okay in fact required. It also why much of economic data can no longer be taken seriously.
The Copenhagen Interpretation (CI) of Quantum Mechanics (QM)
There was a great fight at the beginning of QM over how to interpret Schrodinger’s wave equation. Einstein, Schrodinger and others never accepted the point particle statistical model (PPSM) of QM. Nothing in the mathematics or experimental evidence required the PPSM of QM and certainly nothing required the CI model. The main justification for the statistical approach to QM is the Heisenberg uncertainty principle. If we can only know the location and momentum of a particle with certain precision then we cannot know the original state of a system exactly or the final state of the system exactly. This is how I resolved the statistical nature of QM while I was in grad school in physics and I would bet that this is how most physicists think about this issue. Note new research has shown problems with the uncertainty principle. However, the CI does not resolve the issue this way. The CI has never actually been well defined, but here is a rough sketch of their ideas:
a) negation of causality
b) negation of realism and
c) involvement of infinite and imaginary velocities or masses.
Note that part (a) directly contradicts one of the fundamental tenants of science. You may think I am exaggerating, so here are some quotes:
Heisenberg states clearly:
“The law of causality is no longer applied in quantum theory.”
In order to be coherent, physicists today should no longer try to find the cause of a physical phenomenon. According to Heisenberg’s statement, there is no cause, it is simple magic. Greenberger uses the same expression and states simply, “Quantum Mechanics is Magic”.
Much more recently, following the use of the Copenhagen interpretation, Feynman concludes:
“The theory of quantum electrodynamics describes Nature as absurd from the point of view of common sense. And it agrees fully with experiments. So I hope you can accept Nature as she is – absurd.”
Even worse, Mermin states that the results of those absurd interpretations are enjoyable. He writes:
“The EPR experiment is as close to magic as any physical phenomenon I know of, and magic should be enjoyed.” (Whole section)
You may think the rejection of realism is also not true. But here is another quote by Heisenberg.
“The next step was taken by Berkeley. If actually all our knowledge is derived from perception, there is no meaning in the statement that the things really exist; because if the perception is given it cannot possibly make any difference whether the things exist or do not exist. Therefore, to be perceived is identical with existence.”
Clearly, the CI rejects the fundamental tenants of the science of philosophy. We know that without causality the whole point of experimentation is meaningless – if anything can happen what is the point of an experiment. The only logical result is that even the proponents of CI did not believe what they were saying. However, the problems with the PPSI of QM keep compounding. Below is a list of some of those problems.
1) Requires infinite velocities
2) Spin makes no sense for a point particles.
3) Point Particles: “Because point particles are assumed to occupy no space, they have to be accompanied by infinite charge density, infinite mass density, infinite energy density. Then these infinities get removed once more by something called “renormalization.” It’s all completely crazy.. But our physics community has been hammering away at it for decades. Einstein called it Ptolemaic epicycles all over again.”
4) The Laser: “At the heart of laser action is perfect alignment of the crests and troughs of myriad waves of light. Their location and momentum must be theoretically knowable. But this violates the holiest canon of Copenhagen theory: Heisenberg Uncertainty. Bohr and Von Neumann proved to be true believers in Heisenberg’s rule. Both denied that the laser was possible.”
Carver Mead, who studied under Feynman and worked closely with him had this to say about the CI. “It is my firm belief that the last seven decades of the twentieth will be characterized in history as the dark ages of theoretical physics.”
 Heisenberg, Werner, Physics and Philosophy, the Revolution in Modern Science, New York, Harper and Row, 1966, p. 88.
 Greenberger, Daniel, Discussion remarks at the Symposium on Fundamental Questions in Quantum Mechanics, Albany, SUNY, April 1984.
 Feynman, Richard P., The Strange Theory of Light and Matter, New Jersey, Princeton University Press, 1988, p. 10.
 Mermin, N. David, “Is the Moon There when Nobody Looks? Reality and the Quantum Theory”, in Physics Today, April 1985, p. 47.
 Marmet, Paul, Absurdities in Modern Physics: A Solution, http://www.newtonphysics.on.ca/heisenberg/chapter1.html#1.6
 Heisenberg, Werner, Physics and Philosophy, the Revolution in Modern Science, New York, Harper and Row, 1966, p. 84.
 The Paradoxes of Quantum Mechanics, http://www.physics.oregonstate.edu/~stetza/ph407H/Quantum.pdf
 American Spectator, Sep/Oct2001, Vol. 34 Issue 7, p68, Carver Mead, The Spectator Interview, http://freespace.virgin.net/ch.thompson1/People/CarverMead.htm
 American Spectator, Sep/Oct2001, Vol. 34 Issue 7, p68, Carver Mead, The Spectator Interview, http://freespace.virgin.net/ch.thompson1/People/CarverMead.htm
 American Spectator, Sep/Oct2001, Vol. 34 Issue 7, p68, Carver Mead, The Spectator Interview, http://freespace.virgin.net/ch.thompson1/People/CarverMead.htm
This is an open Letter by Randy Landreneau
The fight to stop multinational corporations from destroying the Patent System our Founders so intelligently created is coming to a head. The Senate is expected to do something before the end of the month. I and some other inventors are going to Washington DC next week to meet with our Senators, and to do what we can to stop the further destruction of the American Patent System. We want as many inventors as possible to join us.
For any of you who aren’t up to speed, here’s the short version. Our Founders created the American Patent System much differently than patent systems in the rest of the world. The intent was that an individual from any walk of life would be able to own and benefit from that which he or she created. Since most innovation, and especially game-changing innovation, comes from individuals, not large corporations, the result of the American Patent System has been much more innovation from America than the rest of the world, and much greater economic success.
Effective innovation has been the reason for the economic success of America, but it is a threat to the vested interest. Large corporations would rather not have to worry about new products to compete with, and they would rather not have to deal with patent infringement lawsuits when they choose to act badly. The result has been serious efforts to change the American Patent System to something that is quite different than what was originally intended.
What is playing out right now is a very well-constructed campaign using misleading propaganda that has our politicians very close to destroying the American Patent System (as it relates to independent invention). The US House passed the Innovation Act faster than anyone thought possible. The Senate appears is trying to do the same. The only way to stop it is to get our Senators to see the truth.
The truth is that “Loser Pays” will make it virtually impossible for the typical independent inventor to defend a patent. Allowing “serial challenges” to issued patents will allow large corporations to bankrupt independent inventors and thereby eliminate competition. “Enhanced pleadings” and “limiting discovery” are further efforts to put patent holders at a disadvantage (see attached document). Everything in this legislation works against independent invention.
If there is any way you can come to Washington DC next week, please do it. I will be there Tuesday, January 22nd, but Paul Morinville will be there the 21st through the 23rd, and possibly the 24th also. We will work together, and go as a group to each other’s meetings where possible. We will inform you and support you in this effort. I am confident that we can make a difference. Please join us and help make sure independent inventors will not be shut out of America’s future.
If you can’t go, definitely continue to email and leave voice mails for your senators. This is easy – just go online, find them, go to their websites, hit “contact,” etc. Whether we win or lose this fight depends on what we do right now. Please help us win this battle.
The authors (Sven Bostyn and Nicolas Petit) of this paper, PATENT=MONOPOLY – A LEGAL FICTION, argue that patents are not a monopoly based on standard antitrust analysis. It is very unusual for an academic paper to take such an unpopular position. They must have not got the memo that the goal of all academics is to vilify inventors, patents, and property rights. Below are some the lines I thought were interesting and my comments are below.
No other property right is so expensive, time consuming and expensive to obtain title to.
“In 2011, approximately 1,000,000 patents were granted across the globe. This would mean that 1,000,000 monopolies would have been created worldwide. This clearly, cannot be true.”
“Competition is very valuable, but innovation is probably equally, if not more, valuable.”
My main critique is that they did not explain how patents are a property right or the history of property rights and patents. Under Locke’s theory of property rights, patents and copyrights are property rights – they are granted because of the creative effort (labor) of the inventor/author. This was picked up by Sir William Blackstone in his Commentaries, where he affirms that patents and copyrights are property and therefore natural rights. This was enshrined in the constitution as “securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
We are facing is the worst attack upon independent invention that we have ever faced. The changes from the America Invents Act pale in comparison. Having to be more secretive and file Provisional Patent Applications earlier can be dealt with, but having no possible way to defend a patent against a financially strong infringer is a fatal blow.
Many inventors have thought that bringing a patent infringement suit is financially beyond them. But this is America, and you can hire an attorney on contingency. Your patent and your case have to be strong, but it can be done. This isn’t some myth – I have a friend who did this and won. But the legislation that passed the House, H.R. 3309, has Loser Pays, meaning that the patent holder has to pay the legal expenses of the infringer if the case isn’t won. There is some language in the bill that gives some leeway so that possibly not every inventor will have to pay the legal expenses of the infringer in every single failed case. But the inventor will have to go into the case with the risk and be subject to the whims of judges who can be biased, misinformed, wrong-headed, and maybe even influenced. Most of us would not be able to take on a financial risk that would be at least hundreds of thousands of dollars, if not much more. Loser Pays creates a situation where the typical independent inventor who is not wealthy will not be able to defend a patent.
I wish that were all. You know how the America Invents Act put into place some new ways to challenge an issued patent? Of course, that is bad for us. But at least the challenger had to bring his best case and could not later come forward with new arguments and additional challenges. This is referred to as serial patent challenges, which would very quickly deplete the typical inventors funds and ability to defend his patent. The passed bill, H.R. 3309 does away with the estoppel provision, and will allow serial patent challenges. The typical inventor will not be able to continue to defend a patent if an infringer employs serial patent challenges.
There’s more, but there is nothing in this bill that is good for the independent inventor. The stated purpose is to handle Patent Trolls (non-practicing entities [NPEs] who allegedly buy up patents and frivolously sue patent holders). There’s a lot of discussion on whether or not the troll issue is even a real issue rather than just large companies not wanting to be sued for actual patent infringement. I and a lot of others believe it is the latter. I believe that the average Senator just isn’t aware of how this legislation will affect independent inventors because they are only hearing the large corporation argument.
We cannot let our rights as inventors be stripped away, as they surely will if we don’t start making a lot of noise. It is possible that the Senate will just vote on the House bill as is and be done with it. I have heard that they will be meeting on it this week. In an effort to look like they are doing something, they could pass it this week!
If you are expecting others to make this go right, don’t. I know there are people fighting on our side, but there were with the America Invents Act as well. There, we were beaten 85 to 10 in the final vote. The only thing that will stop this tragedy, and it is a tragedy, is if you get this email out far and wide and call your Senators and tell them you are against what was passed in the Innovation Act, H.R. 3309, and whatever the Senate is may be adding without the input of any independent inventors. Tell them that independent inventors are the backbone of American innovation, and that they must vote NO to this and any future efforts to weaken the American Patent System. Tell them that the proposed changes are the exact opposite of what made America the greatest innovator and greatest economic power in the world. The proposed changes create the opposite of what was intended by the creation of the American Patent System. Call now. Thank you for your help.
There is a myth that Non-Practicing Entities (mythical creators who live under bridges) have caused an explosion in patent litigation. A recent report from the Government Accounting Office has concluded: 1) current concerns expressed about patent licensing companies were misplaced, and 2) no such NPE litigation problem exists. Yet Congress is pushing forward with the so called “Innovation Act.” For more information see GAO Report on Patent Litigation Confirms No “Patent Troll” Litigation Problem.
Patent legislation is in the works right now that is a greater threat to independent inventors than any legislation we have seen in the past.
The bill is the Innovation Act, HR 3309, which passed in the House on Thursday, December 5th. I don’t know everything that is wrong with it, but there are two particular things that really stand out. One is Loser Pays. According to this bill, if a patent owner sues someone for infringement and doesn’t win, he automatically has to pay the other party’s legal expenses. This will end the ability of the typical independent inventor to defend his property. Historically, an inventor could hire an attorney on contingency. Loser Pays creates a huge financial risk that totally changes the playing field. Under Loser Pays, An independent inventor would have to risk financial ruin to defend a patent.
The Innovation Act also undoes provisions that were intended to prevent serial challenges to patents. Under the present law, someone challenging a patent must put their best case forward rather than withholding information and bringing multiple cases in an effort to bankrupt the patent owner. This bill enables vested interests to use serial challenges to bankrupt patent holders and eliminate competition.
The stated reason for this legislation is patent trolls – companies that don’t produce products (NPEs – non-practicing entities), and that buy patents and allegedly sue companies frivolously for infringement. This situation has been hyped up way beyond any actual harm simply to enact legislation that will 1) make it harder for large corporations to be sued successfully for infringement, and 2) eliminate the independent inventor as a threat to the vested interest.
Is there a better example of America and the American Dream than an independent inventor, burning the midnight oil, working toward success with a new invention? This is what the American Patent System was designed to spur, and it did so. It is no accident that America became the most innovative and most prosperous country in the world. But multinational corporations have been using politics to weaken our patent system. The America Invents Act hurt us, but the Innovation Act is the nail in the coffin.
This bill will be voted on in the Senate. It could happen at any time. It got pushed through in the House very fast. Please forward this information to anyone who can help defeat it. Senators need to hear how the Innovation Act will harm independent invention. 99% of the political effort is from large corporations whose interests are directly opposed to independent invention. Please contact your Senators and forward this information to anyone who can help. Time is of the essence.
I have often pointed out that patents are a natural right under Locke’s theory of property rights. Locke stated, in modern language, that you own yourself so you have the right to those things you create. Many detractors have suggested that this absurd. According to Locke the three chief natural rights are life, liberty, and property. Locke states that protecting property rights is the main reason for forming governments.
Sec. 124. The great and chief end, therefore, of men’s uniting into commonwealths, and putting themselves under government, is the preservation of their property.
Inventions are the result the inventor’s labor and therefore property under Locke. Property is a natural right, so patents are natural rights. Despite this logical connection, many people have continued to deny that patents (property rights in inventions) are a natural right.
Locke’s ideas were incorporated in the law of the United States by William Blackstone’s Commentaries on the Laws of England. This treatise became the basis of common law in the US. Here is what Blackstone said about patents and copyrights (intellectual property). Note that he cites Locke’s ideas on property rights for his explanation for why intellectual property is Property.
There is still another species of property, which (if it subsists by the common law) being grounded on labour and invention is more properly reducible to the head of occupancy than any other; since the right of occupancy itself is supposed by Mr. Locke, and many others, to be founded on the personal labour of the occupant. And this is the right, which an author may be supposed to have in his own original literary compositions; so that no other person without his leave may publish or make profit of the copies. When a man by the exertion of his rational powers has produced an original work, he seems to have clearly a right to dispose of that identical work as he pleases, and any attempt to vary the disposition he has made of it, appears to be an invasion of that right.
Now the identity of a literary composition consists entirely in the sentiment and the language: the same conceptions, clothed in the same words, must necessarily be the same composition: and whatever method be taken of exhibiting that composition to the ear or the eye of another, by recital, by writing, or by printing, in any number of copies, or at any period of time, it is always the identical work of the author which is so exhibited; and no other man (it hath been thought) can have a right to exhibit it, especially for profit, without the author’s consent.
This consent may perhaps be tacitly given to all mankind, when, an author suffers his work to be published by another hand, without any claim or reserve of right, and without stamping on it any marks of ownership; it being then a present to the public, like building a church or bridge, or laying out a new highway: but, in case the author sells a single book, or totally grants the copyright, it hath been supposed, in the one case, that the buyer hath no more right to multiply copies of that book for sale, than he hath to imitate for the like purpose the ticket which is bought for admission to an opera or a concert, and that, in the other, the whole property, with all it’s exclusive rights, is perpetually transferred to the grantee.
On the other hand it is urged, that though the exclusive property of the manuscript, and all which it contains, undoubtedly belongs to the author, before it is printed or published; yet from the instant of publication, the exclusive right of an author or his assigns to the sole communication of his ideas immediately vanishes and evaporates; as being a right of too subtile and unsubstantial a nature to become the subject of property at the common law, and only capable of being guarded by positive statutes and special provisions of the magistrate.
The Roman law adjudged, that if one man wrote any thing on the paper or parchment of another, the writing should belong to the owner of the blank materials meaning thereby the mechanical operation of writing, for which it directed the scribe to receive a satisfaction; for in works of genius and invention, as in painting on another man’s canvas, the same law gave the canvas to the painter. As to any other property in the works of the understanding, the law is silent; though the sale of literary copies, for the purposes of recital or multiplication, is certainly as antient as the times of Terence, Martial, and Statius. Neither with us in England hath there been (till very lately) any final determination upon the right of authors at the common law.
But whatever inherent copyright might have been supposed to subsist by the common law, the statute 8 Ann. c. 19 hath now declared that the author and his assigns shall have the sole liberty of printing and reprinting his works for the term of fourteen years, and no longer; and hath also protected that property by additional penalties and forfeitures: directing farther, that if, at the end of that term, the author himself be living, the right shall then return to him for another term of the same duration: and a similar privilege is extended to the inventors of prints and engravings, for the term of eight and twenty years, by the statute 8 Geo. II. c. 13, and 7 Geo. III. c. 38, besides an action for damages, with double costs, by statute 17 Geo. III. c. 57. All which parliamentary protections appear to have been suggested by the exception in the statute of monopolies, 21 Jac., I. c. 3, which allows a royal patent of privilege to be granted for fourteen years to any inventor of a new manufacture, for the sole working or making of the same; by virtue whereof it is held, that a temporary property therein becomes vested in the king’s patentee. (emphasis added)
The idea that patents are a natural right is incorporated in early American law as the quote below shows.
“we protect intellectual property, the labors of the mind, productions and interests as much a man’s own, and as much the fruit of his honest industry, as the wheat he cultivates, or the flocks he rears.” (Davoll v. Brown, 7 F. Cas. 197, 199 [C.C.D. Mass. 1845].)
It is just obstinance or disingenuousness to suggest that patents are not part of natural rights.
 The Second Treatise of Civil Government; 1690; John Locke; CHAP. IX., Of the Ends of Political Society and Government.
In order to understand why patents are property rights, we first have to understand what property rights are. The Austrian School of Economics theory of property rights is that they are a social construct necessary to efficiently distribute scarce resources. According to Austrians intellectual property is not scarce and therefore not property. Since IP is not property it is a monopoly and represents the immoral aggression on the part of the state.
The Austrians position is incorrect, logically, historically, and empirically. Property rights in the US are based on Locke’s formulation that property rights result from the act of creation. Note this is update for modern language. Austrians and Libertarians have purposely mischaracterized Locke to create a straw man argument as to why Locke was wrong. Adam Mossoff has an excellent paper on point. Locke’s ideas were incorporated into US law by Blackstone’s Commentaries on the law. This book was even more influential on US law than England, but is incorporated into almost all common law countries.
The Austrian formulation of property rights does not explain why people come to own property rights, but Locke’s does. In addition Locke’s formulation which is based on the idea that you own yourself or stated another way that you have property rights in yourself, explains why murder and slavery are illegal and immoral. It also explains how you come to hold property rights. Finally, it explains almost all of our basic criminal law and property law. Under science and Occam’s razor the simplest theory that explains the most facts is the correct theory. The Austrian theory of property rights fails.
The other theory of property rights is that the King, the State, or the collective is the ultimate owner of all property. The State just allows you to have control of certain resources until they believe someone else should control the resource. This theory has some historical basis but is not really a theory of property rights, since the most basic right of property is the right to exclude. Clearly under this theory you do not have the right to exclude. This theory has the same problems as the Austrian formulation of property rights and logically implies that everyone is actually a slave of the State, since they do not own themselves.
Notwithstanding the problems with the Austrian formulation of property rights is it true that inventions (IP) is not subject to scarcity? Inventions require the time and effort of inventors, they required labs, computers, facilities, materials, etc. So clearly the creation of inventions is subject to scare resources. But is the distribution of inventions subject to scarcity? VCs usually budget ten times as much to get a new invention in the market as is necessary to create it. If it took no resources to distribute inventions and information then there would be no need for schools, universities, doctors, lawyers, engineers, marketing and sales people, etc. So clearly it does take resources to distribute inventions.
Notwithstanding that the Austrians are wrong about the scarcity of IP, is IP a monopoly? Here a number of posts that show definitionally, logically, legally, and empirically patents are not monopolies.
More on the Myth that Patents are Monopolies http://hallingblog.com/more-on-the-myth-that-patents-are-monopolies/.
This post contains a number of quotes from philosophers explaining that patents are not monopolies.
Property Rights, Possession and Objects http://hallingblog.com/property-rights-possession-and-objects/
This post explains the difference in the concepts of property rights, possession, and objects. Most economists and patent detractors confuse these concepts. The origin, definition, and legal basis of property right are explained.
The Myth That Patents are a Monopoly http://hallingblog.com/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.
- Natural Rights: Objective, Subjective and Volition
- CLS v. Alice Oral Argument
- Adam Carolla and the Podcast Patents: The Real Story
- Interesting Academic Study on Value of Patents to Startups
- CLS Reply Brief: Alice v. CLS Bank Supreme Court
- Win a FREE Copy of Pendulum of Justice
- Are Patents too Vague?
- Halling asked to Speak at Atlas Summit 2014
- Book Review: The Nature of Technology
- Business Method Patents: A Solution?