Copyright Law and how it kills innovation and creativity

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Ryan T. Noble
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Copyright Law and how it kills innovation and creativity

Postby Ryan T. Noble » Sat Jan 30, 2010 4:53 am UTC

We all chuckle at the comic strips berating the FCC and DRM and champion the hackers and opensource geniuses defending the free sharing of knowledge.

What I want to know from you, the users, is how Copyright Law (and Intellectual Property law in general) hinders the advancement of technology, society, and innovation.

See, I'm an aerospace engineer who got pissed off and fed up at how skilled the government was at ruining our efforts to invent amazing stuff. An unmanned aerial system that can fly itself and whose skin morphs seamlessly ala "The Navigator" movie? Pshhaw, you can't fly that in US airspace.

SO I went to law school to figure out how to fix all that crap. But I'm only one man, and I'm honestly under-informed regarding Copyright law and its affect on codes. What I can tell you is that RIGHT NOW the U.S. Supreme Court is making a decision on a case styled, In re Bliski, regarding the patentability of business methods. It is probable that the court will also use this opportunity to rule on whether computer codes are patentable as well.

Please post to this topic with any legal concerns you may have, so that I may best understand how to defend SCIENCE! After all, we are the true bad asses. You can't amend the laws of physics with a majority vote!

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Re: Copyright Law and how it kills innovation and creativity

Postby Cres » Sat Jan 30, 2010 5:43 pm UTC

A simple answer to the question 'how does patent law damage innovation?' is that, in general, it doesn't damage it at all.

The rationale behind patent laws is to provide an incentive for innovative research to be undertaken in the first place. To give a just a very basic account, if no such laws existed then no individual or company undertaking a costly research project could expect to profit from doing so. Any innovations could be freely copied by other firms, with the resulting competitive market reducing (economic) profits to nothing. And without the protection of a patent system, anyone who did come up with an innovation would have a strong incentive for keeping that innovation secret for fear of its being stolen, which would further stifle progress.

Patent laws avoid these problems by guaranteeing some return on investment in research, giving patent holders the opportunity sell their patented products as a monopolist, or, indeed, to sell the patent itself.

Of course it's a balancing act between providing a sufficient incentive for innovation and limiting the inefficiency of the resulting monopolies as well as longer-term innovation, but this is reflected in the fact that patents are not granted forever but are instead issued with a limited time before they expire.

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Re: Copyright Law and how it kills innovation and creativity

Postby BlackSails » Sat Jan 30, 2010 5:47 pm UTC

Copyright law is essential for innovation. No company is going to invest a billion dollars into a new drug or new passenger plane without knowing that they can actually make some money off it when they are done.

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Re: Copyright Law and how it kills innovation and creativity

Postby Snowflake » Sat Jan 30, 2010 6:26 pm UTC

Competition drives innovation
Copyright law creates competition
Ergo, copyright law maintains innovation.

The question is - what kind of innovation?

A huge percentage of today's innovation and creativity are ultimately detrimental to humanity.
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Re: Copyright Law and how it kills innovation and creativity

Postby Duban » Sat Jan 30, 2010 8:14 pm UTC

Cres wrote:AThe rationale behind patent laws is to provide an incentive for innovative research to be undertaken in the first place. To give a just a very basic account, if no such laws existed then no individual or company undertaking a costly research project could expect to profit from doing so. Any innovations could be freely copied by other firms, with the resulting competitive market reducing (economic) profits to nothing.

Essentially this. If there weren't copyright laws then every time you created something someone else could steal your creation. You wouldn't get the benefit from your innovation. Even worse would be the fact that large companies could produce more of your product at a decreased cost. The better, smaller, company would go bankrupt even though they're the ones innovating the better products.

While there are problems when it comes to sweeping copyrights that affect many things trying to get rid of copyright laws altogether isn't a viable solution.
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Re: Copyright Law and how it kills innovation and creativity

Postby Azrael » Sat Jan 30, 2010 9:59 pm UTC

Ryan T. Noble wrote:See, I'm an aerospace engineer who got pissed off and fed up at how skilled the government was at ruining our efforts to invent amazing stuff. An unmanned aerial system that can fly itself and whose skin morphs seamlessly ala "The Navigator" movie? Pshhaw, you can't fly that in US airspace.

You realize that this example has nothing to do with copyright law, right? I mean, I agree -- stupid laws getting in the way of death lasers and whatnot.

However, I don't think copyright law stifles innovation, with the caveat that it's inability to rationally handle software can stifle commercialization.

I work for a company with proprietary rights to virtually an entire technology -- our challenge is to constantly innovate within that very narrow confine, so that we bring variations of our core competency to market against a huge variety of other technologies, some of which may lend themselves to a specific application more easily than ours. Meanwhile our competitors have to find ways to compete in our corner, against our feature, but without using our technology. So you end up with a half dozen or so companies trying to position their individual strengths across the entire segment -- and no market is boundless. I think the dynamic helps innovation, because it keeps the entire market from becoming a commodity, which is the creativity death-knell.

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Re: Copyright Law and how it kills innovation and creativity

Postby mattiep » Sat Jan 30, 2010 11:18 pm UTC

Duban wrote:Essentially this. If there weren't copyright laws then every time you created something someone else could steal your creation. You wouldn't get the benefit from your innovation. Even worse would be the fact that large companies could produce more of your product at a decreased cost. The better, smaller, company would go bankrupt even though they're the ones innovating the better products.

BlackSails wrote:Copyright law is essential for innovation. No company is going to invest a billion dollars into a new drug or new passenger plane without knowing that they can actually make some money off it when they are done.


Point of order, patent law protects research and development of a new drug or a passenger plane. Copyright law protects written words, music, or other media, whether poetry or prose.

That said, there are areas where the two nearly overlap, but I am not an expert on intellectual property.

In regards to the original question, my opinion is that computer code should probably be protected by copyright (which generally lasts longer than patent), methods (to include algorithms) should probably be covered by a patent. Of course, for a patent on a method there needs to be some scrutiny on whether prior art exists, which should be easier to determine now with the internet. Yet the US patent office continues to grant patents for a wide variety of things, some of which should not be able to be patented.

Trade secrets are another form of protecting intellectual property, but there are no legal protections against reverse engineering a product. But I just like to eat the 11 secret herbs and spices, regardless of how many there actually are.

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Re: Copyright Law and how it kills innovation and creativity

Postby Elvish Pillager » Sun Jan 31, 2010 12:20 am UTC

Ryan T. Noble wrote:What I want to know from you, the users, is how Copyright Law (and Intellectual Property law in general) hinders the advancement of technology, society, and innovation.

If you haven't read a lot of RMS's writing on the subject, that's probably the place to start. This page has a lot of relevant essays/speeches on it.

The specific "intellectual property laws" that I think of in terms of killing innovation are patent laws. The basic problem with patent law, specifically US patent law, is that there are so many patents, and their wording is so ambiguous, that it's almost impossible to invent a new thing of any significant complexity without running afoul of a patent that someone else has gotten already. RMS goes into a lot more detail in this speech, which is long but probably worthwhile for you to read.
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Re: Copyright Law and how it kills innovation and creativity

Postby ianf » Sun Jan 31, 2010 1:12 pm UTC

mattiep wrote:Point of order, patent law protects research and development of a new drug or a passenger plane. Copyright law protects written words, music, or other media, whether poetry or prose.

That said, there are areas where the two nearly overlap, but I am not an expert on intellectual property.

In regards to the original question, my opinion is that computer code should probably be protected by copyright (which generally lasts longer than patent), methods (to include algorithms) should probably be covered by a patent. Of course, for a patent on a method there needs to be some scrutiny on whether prior art exists, which should be easier to determine now with the internet. Yet the US patent office continues to grant patents for a wide variety of things, some of which should not be able to be patented.

Trade secrets are another form of protecting intellectual property, but there are no legal protections against reverse engineering a product. But I just like to eat the 11 secret herbs and spices, regardless of how many there actually are.


Computer code is protected under copyright law since it is "written words". I can't see any way to exclude it without making copyright law even more complex. So as far as copyright law goes, I would think that computer code will stay copyright.

Patent law for algorithms varies with region - e.g. you can patent programs in the US but not in the UK. This means that companies in UK will rely on copyright law rather than patent law (e.g. by including useless code which never gets executed as a way to prove that something has been copied rather than independently developed).

I can see the merit in both positions for patent law. The reason for having it is the argument presented in other posts (why would a company invest a lot if they get no reward for that investment). The arguments against it are basically about companies patenting really simple ideas (i.e. obvious ideas) with the intention of getting a load of money off companies using that obvious idea.

Essentially, I can see both approaches leading to a lack of innovation. One way you stifle innovation because a company gets no reward for its work. The other way you stifle innovation because a company is scared to do something because they might get slapped with a patent violation for some really basic thing they did.

Here, for example, is a European patent application on providing multilingual output from computer programs (http://www.freepatentsonline.com/EP1258819.html) which falls into the category of "the bleeding obvious". If that patent is granted, then everyone using this approach would need to pay that guy some money.

Perhaps the answer isn't that software patents are stupid, but that the patent system is. If we had a system which could differentiate between worthy patents and "land grab" patents, then it would be a good thing.

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Re: Copyright Law and how it kills innovation and creativity

Postby MiB24601 » Sun Jan 31, 2010 3:57 pm UTC

ianf wrote:Computer code is protected under copyright law since it is "written words". I can't see any way to exclude it without making copyright law even more complex. So as far as copyright law goes, I would think that computer code will stay copyright.

Patent law for algorithms varies with region - e.g. you can patent programs in the US but not in the UK. This means that companies in UK will rely on copyright law rather than patent law (e.g. by including useless code which never gets executed as a way to prove that something has been copied rather than independently developed).

Perhaps the answer isn't that software patents are stupid, but that the patent system is. If we had a system which could differentiate between worthy patents and "land grab" patents, then it would be a good thing.


Certain expressions have been held to be ineligible for copyright protection under § 102(b). For example, contest rules can't be copyrighted under Morrissey v. Proctor & Gamble, despite being a written expression, as that would result in copyright being used to protect a procedural system as well. Under the current copyrgiht law, it seems like the same reasoning could be used to declare certain instances of computer code ineligible for copyright protection.

As for process patents in the US, the Supreme Court is currently deciding that. The court heard oral arguments in Bilski v. Kappos back in November. Based upon the substance of the oral arguments, it is possible that the court will replace the "machine-or-transformation" test currently in place for determining patent eligible subject matter.

As for determining between worthy patents and unworthy patents, that's that the utility requirement of patents is supposed to do.
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Re: Copyright Law and how it kills innovation and creativity

Postby ianf » Sun Jan 31, 2010 4:58 pm UTC

MiB24601 wrote:Certain expressions have been held to be ineligible for copyright protection under § 102(b). For example, contest rules can't be copyrighted under Morrissey v. Proctor & Gamble, despite being a written expression, as that would result in copyright being used to protect a procedural system as well. Under the current copyrgiht law, it seems like the same reasoning could be used to declare certain instances of computer code ineligible for copyright protection.


I should have been more precise - I would imagine that it's easy to exclude computer code from copyright, but I think that any such exclusion would probably also exclude other things which you would not want excluded - maybe recipes or patterns for knitting machines or something.

MiB24601 wrote:As for determining between worthy patents and unworthy patents, that's that the utility requirement of patents is supposed to do.


As I understand the situation, patent offices are understaffed and disappearing under stacks of patent applications. Without the utility requirement functioning, it is difficult to discuss the pros and cons of software patents. It is very difficult to endorse a system which should work in principle, but which you know is failing in practice.

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Re: Copyright Law and how it kills innovation and creativity

Postby MiB24601 » Sun Jan 31, 2010 9:24 pm UTC

ianf wrote:I should have been more precise - I would imagine that it's easy to exclude computer code from copyright, but I think that any such exclusion would probably also exclude other things which you would not want excluded - maybe recipes or patterns for knitting machines or something.

As I understand the situation, patent offices are understaffed and disappearing under stacks of patent applications. Without the utility requirement functioning, it is difficult to discuss the pros and cons of software patents. It is very difficult to endorse a system which should work in principle, but which you know is failing in practice.


Recipes wouldn't be protected by copyright. Recipes would be protected by patent. It's very important to keep in mind which things fall under each type of intellectual property. As for knitting patterns, there would be a division between the artistic expression, which is protected by copyright and the useful aspect, which would be protected by patent (if it does have patentable subject matter. If it's just a knitting pattern, there shouldn't be anything novel to be patented).

Yes, the USPTO is understaffed and overworked. It's a big issue, so much so that the President has noted it as a major government failing. But things are being done. Kappos, the head of the USPTO is trying to modernize the procedure and greatly increase the number of patent examiners. This is why it's so important to support those efforts, because it would be a disaster for innovation otherwise.

(And it's important to note that utility is far the only requirement looked at for eligibility of patents. It's not that the utility requirement itself is failing, it's that the entire process is failing.)
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Re: Copyright Law and how it kills innovation and creativity

Postby Peter Galbavy » Fri Feb 19, 2010 12:35 pm UTC

I believe, with no legal education etc., that IP laws in general are a good thing. The problems are with poorly drafted legislation and the misapplication of said protections and the processes that are built around them.

The current process to challenge patents in most countries is far too cumbersome and expensive and allows those who have the financial resources to acquire patents for inventions that are simply not inventions. Copyright (and related Design, Database rights etc.) are also similarly open to abuse, but as those are granted at the notional time of creation of a work there isn't so much scope for abuse of the grant system.

If somehow we could remove the barriers to entry and challenge for granted rights then we would be on the way to a much more equitable system.

IMHO, of course.

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Re: Copyright Law and how it kills innovation and creativity

Postby Yakk » Fri Feb 19, 2010 4:37 pm UTC

Cres wrote:A simple answer to the question 'how does patent law damage innovation?' is that, in general, it doesn't damage it at all.

Citation needed. From talking with people who are researching in the field, the answer seems to be "the question described is really hard. We don't know. It doesn't seem to be uniform in its effects -- patents in pharma-bio-tech, patents in business logic, patents in automotive engineering, and various other fields seem to be completely different in how they impact the industry in question, and in how they are used".

But I'm no expert.
The rationale behind patent laws is to provide an incentive for innovative research to be undertaken in the first place.

And for the innovative research to be published in a format that allows others to gain the benefits of the research, which later allows others to copy it.
To give a just a very basic account, if no such laws existed then no individual or company undertaking a costly research project could expect to profit from doing so.

This isn't true. For example, trade secret law, trademark law, just keeping the results of the research secret, first mover plus large network effects, organisations with a monopoly power over the market -- all would provide incentives to engage in expensive research, and could convince such organisations that they could profit from it.
Any innovations could be freely copied by other firms, with the resulting competitive market reducing (economic) profits to nothing.

Economic profits being nothing is sort of what is expected in general. If something has zero (economic) profit, then it is something that is not a bad idea to do.
And without the protection of a patent system, anyone who did come up with an innovation would have a strong incentive for keeping that innovation secret for fear of its being stolen, which would further stifle progress.

This is true -- well, somewhat. There is still the incentive to let everyone know about the innovation to let the world know how awesome you are.

As an example, Tim Berners-Lee is someone who came up with a system to link hypertext documents together via in-document references to each other based on the private innovation of a system to classify his own documents.

That turned out pretty good for Sir Berners-Lee.
Patent laws avoid these problems by guaranteeing some return on investment in research, giving patent holders the opportunity sell their patented products as a monopolist, or, indeed, to sell the patent itself.

Patents don't guarantee some return on investment -- they grant a limited monopoly for limited times on certain categories of innovations. That does not guarantee a return on investment: you can patent exceedingly useless things, if you want to!
Of course it's a balancing act between providing a sufficient incentive for innovation and limiting the inefficiency of the resulting monopolies as well as longer-term innovation, but this is reflected in the fact that patents are not granted forever but are instead issued with a limited time before they expire.

It also places a huge tax on innovation, the "can someone who has shot-guned patents find some excuse to justify sueing us" problem.

Take a look at the patent-troll business -- people who buy up defunct companies or patents, never intend to exploit them, then reverse engineer products in order to sue people for violating patents.

The patent troll company never intended to manufacture or use the patent. Barring the infringement, the innovation wouldn't have been used. In extreme cases, the innovation wasn't done in order to actually produce a product, but rather to gain a chip in the patent troll game in order to be able to sue people who are in the business of producing products (and who didn't engage in mass patenting, because as far as they where concerned, the patent process was a bunch of dead-weight, as they are doing nothing that they don't consider to be obvious).

Ie: patents act not only as a monopoly encouraging system, but also as a form of red tape and friction on companies that aren't interested in the entire patent game. It adds a lawyer tax, even if you never copy patented work, because it isn't the copying of patented work that you are afraid of.
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Re: Copyright Law and how it kills innovation and creativity

Postby MiB24601 » Fri Feb 19, 2010 9:13 pm UTC

Cres wrote:A simple answer to the question 'how does patent law damage innovation?' is that, in general, it doesn't damage it at all.

Yakk wrote:Citation needed. From talking with people who are researching in the field, the answer seems to be "the question described is really hard. We don't know. It doesn't seem to be uniform in its effects -- patents in pharma-bio-tech, patents in business logic, patents in automotive engineering, and various other fields seem to be completely different in how they impact the industry in question, and in how they are used".

But I'm no expert.


Rebecca S. Eisenberg is an expert. She's the Robert and Barbara Luciano Professor of Law at the University of Michigan Law School. She's also the author of Patents and the Progress of Science: Exclusive Rights and Experimental Use. (Citation: 56 U. Chi. L. Rev. 1017). According to her research, our patent system provides both an incentive to invest in new research and promotes disclosure of new invention. In other words, the patent system doesn't damage innovation, it promotes innovation. Martin J. Adelman, another expert (he's the Theodore and James Pedas Family Professor of Intellectual Property and Technology Law; Co-Director of the Intellectual Property Law Program; Co-Director of the Dean Dinwoodey Center for Intellectual Property Studies at the George Washington University Law School) has written about the economic incentives to innovate that is a result of our patent system. You can read more about it in his article The Supreme Court, Market Structure, and Innovation: Chakrabarty, Rohm and Haas (Citation: 27 Antitrust Bull. 457).

As for your worries on patent-trolling, yes, patent trolls exist but your description of the patent litigation process is...a bit off. That's really not how it works. Non-practicing entities do go after those who practice the invention but it doesn't happen quite how you describe.

In general, patents are good. They provide incentives to invest in new research. They provide incentives to disclose that research to the scientific community. The transactional costs involved are generally minimal. The US Patent & Trademark Office readily accepts patent applications from inventors without the need for attorneys and patent examiners will aid pro se applicants in prosecuting their claims.

Can patents be improved? Yes! A good number of bad patents have been granted simply because the patent examiners at the USPTO are overworked. This is something that must be solved. However, simply because a system is flawed in it's implementation doesn't mean the nature of the system is bad. At the end of the day, patents promote innovation and that's what should be kept in mind.
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Re: Copyright Law and how it kills innovation and creativity

Postby drunken » Wed Feb 24, 2010 8:49 am UTC

Bearing in mind that patents and copyright are two entirely different systems and should be dealt with seperately, I am answering the post title therefore ignoring patent law. I realise that my arguments here will have no bearing on aerospace engineering whatsoever. Copyright law covers artisitic expression and the communication of ideas.

The actual purpose of copyright law is to limit the affects of innovation and creativity for the purposes of increasing their profitability. the theory is that the increased profitability will encourage more individuals to innovate.

So the question each person must ask when forming an opinion about this is: 'Would it be preferable to utilise all the fruits of creativity to the absolute utmost, and thereby reduce the incentive to be creative, or to maximise the incentives, but sacrifice some of the benefits of the results of that creativity. The question equates to 'is copyright law better than no copyright law'

Most people come to the conclusion that some amount of copyright law is good, differing wildly on how much. Most people who understand the issue and do not profit directly from copyright law also tend to agree that the USA has far too much copyright law, and that the sacrifices are greater than the benefits.

My personal opinion is below for anyone that cares
Spoiler:
As an information communist I personally believe that although no copyright is viable in the information age, limited copyright would be beneficial. I would suggest a term limit of 10 years at the most and a very broad and open ended fair use policy. I think that copyright should apply only to commercial entities making profit from breaking it, and that all personal use should be free and clear for all information.
***This post is my own opinion and no claim is being made that it is in any way scientific nor intended to be construed as such by any reader***

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Re: Copyright Law and how it kills innovation and creativity

Postby lukertin » Fri Mar 19, 2010 7:27 am UTC

OP: For a JD candidate, you sure confuse patent law with copyright law like fruits and vegetables. Copyright law doesn't kill innovation because there's nothing innovative about copyrightable subject matter. As for how it kills creativity...creative people make new stuff and copyright it. If copyright law prevents another from coming along and making the exact same stuff, how does that kill creativity?

Yakk wrote:This isn't true. For example, trade secret law, trademark law, just keeping the results of the research secret, first mover plus large network effects, organisations with a monopoly power over the market -- all would provide incentives to engage in expensive research, and could convince such organisations that they could profit from it.

Without a system to protect their innovation, competing companies could reverse engineer, steal, or plunder intellectual resources of the innovating company, to copy the product, improve upon it, whatever, thus owning market share and driving the innovating company out of business. The innovating company then goes out of business because it is unable to protect its own invention. The problem arises out of the ability of larger companies to strong-arm smaller companies by their vastly superior monetary resources. Trademark and trade secret law does nothing to discourage this type of behavior -- you can't trademark products, the methods of making the products, the material used to make the product, etc, themselves, and trade secrets law does very little to provide remedies against the company hiring employees who are stealing the trade secret in question. They are totally inadequate to remedy the potential problem you've identified.

One thing you seem to assume is that the majority of companies spearheading innovation are large and capable of marketing and profiting from new technology. While this is certainly true, small and medium sized companies are an important factor in the technological landscape of most first world countries and they require means to secure capital to research and market those technologies. A interesting example is the biotech industry. Biotech startups are generally incapable of securing investments from venture capitalists without a patent portfolio because without those patents, their ability to ensure the value of their research severely diminished. A larger biotech firm could come along and poach key scientists, or read a recent publication put out by the start-up and just copy their ideas, with no existing avenue of remedy for the startup. Since the biotech industry essentially thrives on startups for tomorrow's medications, procedures, and equipment, advancement in that field would slow to a crawl. (Large biotech firms are unwilling to completely fund new research by themselves because it places their business at high risk of no return on investment, so they'd much rather jointly fund w/ other entities smaller companies to do that research where their risk to no return ratio is much lower.)

This is true -- well, somewhat. There is still the incentive to let everyone know about the innovation to let the world know how awesome you are.

As an example, Tim Berners-Lee is someone who came up with a system to link hypertext documents together via in-document references to each other based on the private innovation of a system to classify his own documents.

That turned out pretty good for Sir Berners-Lee.

Basically, you'd be willing to rely on a few movers who don't care about money to develop new technology? There aren't that many da Vinci's or Jeffersons in the world. People don't generally invest their time to do things if they aren't going to get something out of it. Fame does very little to fill your stomach or put a roof over your family's head. Besides, people who patent things have the opportunity to let the world know how awesome they are.

The patent troll company never intended to manufacture or use the patent. Barring the infringement, the innovation wouldn't have been used. In extreme cases, the innovation wasn't done in order to actually produce a product, but rather to gain a chip in the patent troll game in order to be able to sue people who are in the business of producing products (and who didn't engage in mass patenting, because as far as they where concerned, the patent process was a bunch of dead-weight, as they are doing nothing that they don't consider to be obvious).

If what they're doing is obvious then the patent troll does not have a case. They will lose. And they will have to pay court costs for filing frivolous lawsuits.

Ie: patents act not only as a monopoly encouraging system, but also as a form of red tape and friction on companies that aren't interested in the entire patent game. It adds a lawyer tax, even if you never copy patented work, because it isn't the copying of patented work that you are afraid of.

Of course patents act as a monopoly encouraging system. That's the purpose of patent law.

Your allegation that it serves as a form of red tape and friction for companies not interested in patents doesn't make sense. There's nothing stopping those companies from doing their own thing, advertising and selling their product, etc, without regard as to whether another company is interfering with their market share of a product they independently developed (why they wouldn't care is beyond me). Any subsequent lawsuit filed by another company for infringement will necessarily fail under current patent law. And if they're doing something that's already been patented in by another entity, then shame on them.

MiB24601 wrote:As for determining between worthy patents and unworthy patents, that's that the utility requirement of patents is supposed to do.

Patent examiners don't examine utility. Subject in patent applications are presumed to be useful, the only thing they care about is 1) specificity of disclosure -- is the specification enabling another person skilled in the art to replicate the invention and 2) originality -- has the subject matter of the patent application already been done by another and 3) nonobviousness -- is the subject matter obvious to another person of ordinary skill in the art compared to what has already been done. It's not the place of a patent examiner to consider actual utility because their job isn't to analyze the commercial value of the patent application.

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Re: Copyright Law and how it kills innovation and creativity

Postby MiB24601 » Fri Mar 19, 2010 12:02 pm UTC

lukertin wrote:It's not the place of a patent examiner to consider actual utility because their job isn't to analyze the commercial value of the patent application.


I wasn't considering the value of the invention in the marketplace as the measure of a worthy invention but whether the application met the threshold established by 35 U.S.C. § 101. Patent applications can be and have been rejected for failing to met the utility prong, as seen in cases like In re Brana.
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Re: Copyright Law and how it kills innovation and creativity

Postby Yakk » Fri Mar 19, 2010 3:25 pm UTC

If what they're doing is obvious then the patent troll does not have a case. They will lose. And they will have to pay court costs for filing frivolous lawsuits.
No, the patent troll has a case. They patented something they never intended to use -- nothing in patent law insists that you actually use (or intend to use) the patent?
Your allegation that it serves as a form of red tape and friction for companies not interested in patents doesn't make sense. There's nothing stopping those companies from doing their own thing, advertising and selling their product, etc, without regard as to whether another company is interfering with their market share of a product they independently developed (why they wouldn't care is beyond me). Any subsequent lawsuit filed by another company for infringement will necessarily fail under current patent law. And if they're doing something that's already been patented in by another entity, then shame on them.

They aren't copying a patent. Maybe something they came up with does infringe upon a patent, but they aren't copying the patent.

So now what -- everyone has to search the patent database to make sure everything they do is not covered by any patent? (note: this increases your liability) And when they find the 50 different possibly good, possibly bad patents, they have to (A) try to get a license, or (B) get a strong case together that it is a bad patent, and enough of a legal defence fund to defend against it, and maybe patent-defence insurance in case they fail.

Getting the license consists of having to negotiate with 50 odd owners of patents. Meanwhile, in order to get their product to market, they have to start a parallel system of bypassing the patents they spotted, work that ends up being wasted if they get a cheap enough license deal -- and crucial if the person they are negotiating the patent with holds out for a high sum.

Then they have to make sure that the work they did to bypass the patents doesn't infringe upon different patents. They need to do this in every market they are going to sell their product in.

Remember, they could be completely innocent of doing any copying of patented work, but all of the above work still needs to be done in order to defend against patent attacks.
Basically, you'd be willing to rely on a few movers who don't care about money to develop new technology? There aren't that many da Vinci's or Jeffersons in the world. People don't generally invest their time to do things if they aren't going to get something out of it. Fame does very little to fill your stomach or put a roof over your family's head. Besides, people who patent things have the opportunity to let the world know how awesome they are.

No. You are taking a non-absolute statement, and implying I made an absolute statement.

I was responding to an absolute statement, and pointing out execeptions.

You may note the words "somewhat" in the first sentence of the text you quoted. Why do you think I'm making an absolute statement?

Second, Fame actually does fill your stomach and put a roof over your head. It doesn't make you a billionare, admittedly.
Without a system to protect their innovation, competing companies could reverse engineer, steal, or plunder intellectual resources of the innovating company, to copy the product, improve upon it, whatever, thus owning market share and driving the innovating company out of business.

Did you read the list of cases I was listing, or are you just talking about "patents are great" in general?

Let's repeat myself:
For example, trade secret law, trademark law, just keeping the results of the research secret, first mover plus large network effects, organisations with a monopoly power over the market -- all would provide incentives to engage in expensive research, and could convince such organisations that they could profit from it.

Trade Secret Law: If you work to keep something secret, violating that secret is a civil actionable thing.

Keeping the reseach secret: Sometimes it can be reverse engineered. Then this doesn't apply.

First mover plus large network effects: It doesn't matter if you copy me, if I am facebook, a facebook clone doesn't stand a chance. My network effects kick your arse.

Monopoly power: If I own a network of power cables, it doesn't matter if you copy my "better transformer" -- you still aren't going to be able to break into my power distribution business.
One thing you seem to assume is that the majority of companies spearheading innovation are large and capable of marketing and profiting from new technology.

No. Once again, you seem to be taking my disagreements to universal statements, and projecting some kind of universal statement onto them.

Read what I'm quoting when I respond to it.

Ie: (emphasis mine)
To give a just a very basic account, if no such laws existed then no individual or company undertaking a costly research project could expect to profit from doing so.

Responed to by:
This isn't true. For example, trade secret law, trademark law, just keeping the results of the research secret, first mover plus large network effects, organisations with a monopoly power over the market -- all would provide incentives to engage in expensive research, and could convince such organisations that they could profit from it.

I wasn't saying "there would be plenty of research", I was saying that it wasn't true that no individual or company could profit from a costly research project and expect to profit from doing so.

You then, for whatever reason, ignored what I was quoting, and then took what I was saying to be some absolute disagreement.

Feel free to continue to disagree, but please, when I quote an absolute statement: "there is no way", "nobody could", etc -- realise I can disagree with the absoluteness of the claim without holding the absolutely opposite position.

Those quotes I'm making and talking about are not "I should skip over that and read what he's saying". I'm quoting to provide context and to describe what I am talking about. When I am disagreeing with someone's statement, what that statement says is required to understand what I'm disagreeing with.
One of the painful things about our time is that those who feel certainty are stupid, and those with any imagination and understanding are filled with doubt and indecision - BR

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lukertin
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Re: Copyright Law and how it kills innovation and creativity

Postby lukertin » Fri Mar 19, 2010 7:52 pm UTC

Yakk wrote:
If what they're doing is obvious then the patent troll does not have a case. They will lose. And they will have to pay court costs for filing frivolous lawsuits.
No, the patent troll has a case. They patented something they never intended to use -- nothing in patent law insists that you actually use (or intend to use) the patent?

Yet because the defendant company is doing something that is obvious (as you said) it is either obvious to something that is generally known in the industry (they have no case) or it is obvious to the patent the complainant company owns.

Your allegation that it serves as a form of red tape and friction for companies not interested in patents doesn't make sense. There's nothing stopping those companies from doing their own thing, advertising and selling their product, etc, without regard as to whether another company is interfering with their market share of a product they independently developed (why they wouldn't care is beyond me). Any subsequent lawsuit filed by another company for infringement will necessarily fail under current patent law. And if they're doing something that's already been patented in by another entity, then shame on them.

They aren't copying a patent. Maybe something they came up with does infringe upon a patent, but they aren't copying the patent.

So now what -- everyone has to search the patent database to make sure everything they do is not covered by any patent? (note: this increases your liability) And when they find the 50 different possibly good, possibly bad patents, they have to (A) try to get a license, or (B) get a strong case together that it is a bad patent, and enough of a legal defence fund to defend against it, and maybe patent-defence insurance in case they fail.

Getting the license consists of having to negotiate with 50 odd owners of patents. Meanwhile, in order to get their product to market, they have to start a parallel system of bypassing the patents they spotted, work that ends up being wasted if they get a cheap enough license deal -- and crucial if the person they are negotiating the patent with holds out for a high sum.

Then they have to make sure that the work they did to bypass the patents doesn't infringe upon different patents. They need to do this in every market they are going to sell their product in.

Remember, they could be completely innocent of doing any copying of patented work, but all of the above work still needs to be done in order to defend against patent attacks.

If a company is finding and developing new ways to do things, they either copy what is already known or they develop their own method of doing it. Next, in "Patent Damages, the Patent Reform Act, and Better Alternatives for the Courts and Congress" 91 JPTOS 19, John Schlicher recognizes companies in the situation you describe aren't limited to the two choices you suggest. There's nothing preventing them from doing a cost-benefit analysis, continuing their infringement, pricing their product to incorporate potential liability in response to the likelihood an infringement case is successful and results in liability. They could even decide to do nothing because the level of proof required to even establish infringing activity and determine economic damages is very high.

That's to say, assume you independent of car manufacturers develop a more efficient car engine that gets 2% more gas mileage and patent it. I, as Ford, take your design (for the purposes of this example it doesn't matter if I do it willfully or unknowingly) and incorporate it into my cars. You sue me for patent infringement. What relief are you entitled to? You have to 1) establish the portion of sales due solely to my implementation of a more efficient car engine (what if every other car manufacturer copied your engine and advertised their increased gas efficiency?), 2) isolate that sales effect when its likely to compounded due to other factors, like Toyota doing a recall due to crappy brake pedals, GMC requiring a government bailout, or even Ford's other valuable IP implementations, 3) identify a reasonable percentage of that increased revenue to mimic licensing costs (1%? 2%? Gonna be raking in the dough!). (NB: this is a gross simplification of a very complex and sometimes contradictory area of law, feel free to analyze the actual distinct tests for determining patent damages and showing me I'm full of crap)

You can see this is extremely difficult case to make. Some might say it's even impossible, which is why infringement goes on all the time and companies don't go after those instances-- because the legal cost of establishing infringement outvalues whatever relief can be awarded.


Basically, you'd be willing to rely on a few movers who don't care about money to develop new technology? There aren't that many da Vinci's or Jeffersons in the world. People don't generally invest their time to do things if they aren't going to get something out of it. Fame does very little to fill your stomach or put a roof over your family's head. Besides, people who patent things have the opportunity to let the world know how awesome they are.

No. You are taking a non-absolute statement, and implying I made an absolute statement.

I was responding to an absolute statement, and pointing out execeptions.

You may note the words "somewhat" in the first sentence of the text you quoted. Why do you think I'm making an absolute statement?

Second, Fame actually does fill your stomach and put a roof over your head. It doesn't make you a billionare, admittedly.

Jefferson and da Vinci died poor. Jefferson died heavily in debt. Maybe he should have patented his rolling chair invention--god knows the only benefit he got out of inventing the chair we're all sitting in was his own increased comfort while writing the Declaration of Independence.

Without a system to protect their innovation, competing companies could reverse engineer, steal, or plunder intellectual resources of the innovating company, to copy the product, improve upon it, whatever, thus owning market share and driving the innovating company out of business.

Did you read the list of cases I was listing, or are you just talking about "patents are great" in general?

You didn't list any cases but feel free to list them now.

Let's repeat myself:
For example, trade secret law, trademark law, just keeping the results of the research secret, first mover plus large network effects, organisations with a monopoly power over the market -- all would provide incentives to engage in expensive research, and could convince such organisations that they could profit from it.

Trade Secret Law: If you work to keep something secret, violating that secret is a civil actionable thing.

To the person who violated the secret, yes. Please identify the relief the originating corporation has against the 'plundering' corporation in the hypothetical I gave. Assuming relief can be granted, the cost and difficulty in proving the unlawful activity is pretty high. I thought you were against getting lawyers involved in complicating matters. Coming up with a workable contract to prevent dissemination of trade secrets is like a obnoxious lawyer tax eh? I thought you were against that. Besides, those secrets will be out in the open once the plundering corporation gets its hands on it. There is no legal remedy encapsulating the potential damages the originating corporation suffers.

I find it interesting that you're love trade secrets so much. How does the current patent system kill innovation in comparison to an alternative system based on trade secrets when the patent system requires publication of innovations to encourage further development by anyone? The patent system has two overarching aims: To give the owner a legally enforceable monopoly over his invention and To encourage progress and innovation. Trade secrets sort of does the first--and utterly prevents the second. A long time ago during the Classical era many things were invented (Greek Fire, the Always Pointing South Chariot, and numerous other things), and the inventor kept their operations secret. We don't know how they work today, even thousands of years later. We can't even duplicate them, and we consider ourselves smarter and more knowledgeable than we were thousands of years ago. +1 for innovation!

First mover plus large network effects: It doesn't matter if you copy me, if I am facebook, a facebook clone doesn't stand a chance. My network effects kick your arse.

Funny you mention facebook given that it's been entangled in a dispute over how Zucker copied his classmates' work and made off like a bandit. Sucks to be them, huh? Well I'm sure they can find recourse in trademark law or something. One of those things you listed. Trade secrets? Yea, trade secrets. That statutory remedy made them feel better about their colossal fuck-up.

Monopoly power: If I own a network of power cables, it doesn't matter if you copy my "better transformer" -- you still aren't going to be able to break into my power distribution business.

Give me a break. Are you seriously advocating that monopolies will make innovation possible in a world with no patents? Even in a world WITH patents, monopolizing powers have little to no incentive to do research--or even improve their product (see Microsoft in the 90's). They have a total monopoly. It doesn't matter to them if they make new and innovative products because it won't affect their profits. In fact, developing those products would decrease their profits because they have to spend their revenue on R&D when they could instead be lining their pockets. They don't even need to care! Edison didn't a give two shits when Tesla invented a workable AC circuit for him despite the fact that it was infinitely better than the DC circuits the Edison monopoly used for everything electrical.

No. Once again, you seem to be taking my disagreements to universal statements, and projecting some kind of universal statement onto them.

Read what I'm quoting when I respond to it.

Ie: (emphasis mine)
To give a just a very basic account, if no such laws existed then no individual or company undertaking a costly research project could expect to profit from doing so.

Responed to by:
This isn't true. For example, trade secret law, trademark law, just keeping the results of the research secret, first mover plus large network effects, organisations with a monopoly power over the market -- all would provide incentives to engage in expensive research, and could convince such organisations that they could profit from it.

I wasn't saying "there would be plenty of research", I was saying that it wasn't true that no individual or company could profit from a costly research project and expect to profit from doing so.

You then, for whatever reason, ignored what I was quoting, and then took what I was saying to be some absolute disagreement.

Feel free to continue to disagree, but please, when I quote an absolute statement: "there is no way", "nobody could", etc -- realise I can disagree with the absoluteness of the claim without holding the absolutely opposite position.

Those quotes I'm making and talking about are not "I should skip over that and read what he's saying". I'm quoting to provide context and to describe what I am talking about. When I am disagreeing with someone's statement, what that statement says is required to understand what I'm disagreeing with.

maybe you shouldn't assume i'm illiterate and realize my argument is that the points you raise are insufficient and faulty to prove your point in rebutting Cres' argument.

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Yakk
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Re: Copyright Law and how it kills innovation and creativity

Postby Yakk » Fri Mar 19, 2010 8:54 pm UTC

A direct answer to your questions. But, I believe you are somehow thinking I'm holding beliefs do not hold, or stating things I am not stating. So I'm tossing it into a spoiler:
Spoiler:
lukertin wrote:
Yakk wrote:
If what they're doing is obvious then the patent troll does not have a case. They will lose. And they will have to pay court costs for filing frivolous lawsuits.
No, the patent troll has a case. They patented something they never intended to use -- nothing in patent law insists that you actually use (or intend to use) the patent?

Yet because the defendant company is doing something that is obvious (as you said) it is either obvious to something that is generally known in the industry (they have no case) or it is obvious to the patent the complainant company owns.

It can be obvious, yet difficult to prove it is obvious. Something being true does not mean it is easy to prove it is true. And I am under the opinion that, in a patent case, the person being sued by the patent holder has to prove their innocence, while the patent holder doesn't have to prove that their research was original and non-obvious?
If a company is finding and developing new ways to do things, they either copy what is already known or they develop their own method of doing it. Next, in "Patent Damages, the Patent Reform Act, and Better Alternatives for the Courts and Congress" 91 JPTOS 19, John Schlicher recognizes companies in the situation you describe aren't limited to the two choices you suggest. There's nothing preventing them from doing a cost-benefit analysis, continuing their infringement, pricing their product to incorporate potential liability in response to the likelihood an infringement case is successful and results in liability. They could even decide to do nothing because the level of proof required to even establish infringing activity and determine economic damages is very high.

Which is all red tape. Because instead of building product and thinking up new problems, they are spending resources on legal cost-benefit analysis.

My point was that even people not in the patent game (who aren't interested in copying others products, or patenting goods -- they find that the IP law doesn't provide them with a net benefit) have to spend resources on dealing with patent IP law.

This is in comparison to, say, copyright: where if you aren't interested in the copyright game, you can "opt out". Unless you somehow independently come up with a nearly identical document (which is far less likely than my experience with things with filed patents), you are not in the game.
Jefferson and da Vinci died poor. Jefferson died heavily in debt. Maybe he should have patented his rolling chair invention--god knows the only benefit he got out of inventing the chair we're all sitting in was his own increased comfort while writing the Declaration of Independence.

Jefferson was impoverished by supporting multiple guests on his estate, and "his admirers came to his aid, and paid off his debts".

I cannot find a citation that da Vinci died without a roof over his head, or food in his belly.

Are you using hyperbole here?
You didn't list any cases but feel free to list them now.

The cases I listed, in explicit answer to the statement that no individual could make a profit off investing in invention without patents, included:
You have a near monopoly over the possible applications of the product.
You can use trade secret law to effectively protect your invention.
etc.

Now, it is possibly you quoted me and didn't actually disagree with what I was saying. In which case, I misunderstood you.
maybe you shouldn't assume i'm illiterate and realize my argument is that the points you raise are insufficient and faulty to prove your point in rebutting Cres' argument.

I was rebutting parts of Cres' argument. I was saying what I was saying, and responding to the parts of Cres' argument that was incorrect and/or dishonest.
Give me a break. Are you seriously advocating that monopolies will make innovation possible in a world with no patents? Even in a world WITH patents, monopolizing powers have little to no incentive to do research--or even improve their product (see Microsoft in the 90's).

They have lots of incentive to decrease their costs and/or increase the number of people who would consume their product.
They have a total monopoly. It doesn't matter to them if they make new and innovative products because it won't affect their profits.

So, you are claiming that Microsoft in the 90s didn't to lots of research and development?

Strange -- I seem to remember them spending money hand-over-fist on research. I also seem to remember AT&T spending money hand-over-fist on research back when it was a monopolist.

I'm not stating that "monopolies produce more research than under a patent system", I'm just responding to "without patents, there are incentives to research".

When you have a monopoly over some part of the economy, if you can make your product cheaper to produce, you can make a lot of money. If you can make your product better so more people will use it, you can make a lot of money. And if your monopoly is strong, you aren't restricted to things that can be easily defended by patents, nor do you need patent protection. As the only real player in a domain, any advancement in technology in that domain will be captured by your monopoly.

Now, this doesn't have to be as good for consumers: I'm merely asserting that there are reasons why, in a patent-free system, individuals or organisations would risk/spend lots of money on research.
Funny you mention facebook given that it's been entangled in a dispute over how Zucker copied his classmates' work and made off like a bandit. Sucks to be them, huh? Well I'm sure they can find recourse in trademark law or something. One of those things you listed. Trade secrets? Yea, trade secrets. That statutory remedy made them feel better about their colossal fuck-up.

Sure. For the case I was talking about, I don't care?

Facebook is in a situation where they have a strong network based monopoly effect. They should be spending research even on non-patentable ways to make their social network more addictive/attractive/etc. How they got into that position isn't what I'm talking about, nor does it matter for the point I'm trying to make.

If you want to make a completely different point, feel free. I'm not disagreeing with you there.
To the person who violated the secret, yes. Please identify the relief the originating corporation has against the 'plundering' corporation in the hypothetical I gave. Assuming relief can be granted, the cost and difficulty in proving the unlawful activity is pretty high. I thought you were against getting lawyers involved in complicating matters. Coming up with a workable contract to prevent dissemination of trade secrets is like a obnoxious lawyer tax eh? I thought you were against that.

Ayep, I don't like red tape. In this case, I was just giving examples of ways to defend R&D without patent law. I made no claims that it was as effective in every case, I was disagreeing with the claim that patents where the only way to defend it.

I'm trying to make myself clear here. I'm not advocating the complete destruction of the entire patent system. I'm pointing out flaws in it and flaws in overly zealous arguments in its favour.

I still do have to find those papers that point out how patents are a mixed blessing, and in some industries generate more costs than benefits. This doesn't mean I think that destroying the patent system is a great idea -- it does mean that we should look at the cost/benefits of patent protection in each area, and in cases where it gets in the way, think about weakening the strength of patents.
I find it interesting that you're love trade secrets so much.

I find it interesting that you think I love trade secrets to much. I wasn't aware I expressed affection for them.

In fact, as far as I can tell, I pretty much used them as examples when someone said "there is no method other than patents to do X". Trade secrets don't have to be extremely effective, nor do they have to be better than patents, in order for them to be an alternative method to protect innovation. Nor do they have to solve every problem that patents solve.

All they have to do is protect some idea to some degree.

I'm not on a "all patents are evil, lets destroy them" kick that you seem to be projecting onto me.
How does the current patent system kill innovation in comparison to an alternative system based on trade secrets when the patent system requires publication of innovations to encourage further development by anyone?

I don't know the full answer to this question -- and I would hold that anyone, regardless of their expertise, who claimed a definitive answer to this question is being dishonest.

I can give examples of ways that patents would damage innovation, while trade secrets would not. In particular, if you made an innovation without breaching someone's trade secret protection (ie, and independent innovation), in the case of patents you would still be guilty -- and in the case of trade secrets, you wouldn't be.

I suspect that in many markets this one negative effect (and, because apparently I have to say this, I do not claim that this is the only negative effect, nor do I claim that it is a huge negative effect, nor ..) wouldn't be sufficient to make removal of patents and replacement with trade secrets sufficient to make the trade secret based innovation occur better than patents.

At the same time, someone who doesn't acknowledge that the fact that patent law can make independent innovation (or something that would be independently innovated) more risky and cost more is, I believe, wrong.
[SNIP non-disputed advantages that patents have]
maybe you shouldn't assume i'm illiterate and realize my argument is that the points you raise are insufficient and faulty to prove your point in rebutting Cres' argument.

You seem to be projecting a position I do not hold onto my post.

I'm looking for where I took the positions that you (seem to be?) attacking, and I don't see it.

Please go back to the post you responded to originally:
posting.php?mode=quote&f=8&p=2061268#pr2016703

I can see places where I said, in more words (to cres) : "the benefits of patents vary by the industry they are used in", "patents exist to encourage publication of research", "it is not true that patents are the only incentive for doing expensive research", "I don't think you understand what economic profit mean", "it is not true that the only incentive to publish research is patents", "patents are not a guarantee of return on investment", "patent law has portions that get in the way of innovation in some situations".

I don't see where I said "patents are evil and we are better off without them". You seem to be implying that this is what I said, or what I meant. I am not saying this, I don't believe it, and it is really annoying when someone keeps on claiming that I said this, or I meant this, or I believe that.

You keep on ascribing incorrect intentions to me. You are inventing positions that I'm holding, but I'm not holding that position. Stop it.

Read the post again. Is there anything in the linked post that doesn't line up with my paraphrasing of it?

Thank you.
One of the painful things about our time is that those who feel certainty are stupid, and those with any imagination and understanding are filled with doubt and indecision - BR

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lukertin
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Re: Copyright Law and how it kills innovation and creativity

Postby lukertin » Fri Mar 19, 2010 11:29 pm UTC

Yakk wrote:It can be obvious, yet difficult to prove it is obvious. Something being true does not mean it is easy to prove it is true. And I am under the opinion that, in a patent case, the person being sued by the patent holder has to prove their innocence, while the patent holder doesn't have to prove that their research was original and non-obvious?

There is no concept of 'innocence' in civil actions. But in any case, while a patent holder is given the benefit of the doubt that his patent is original and non-obvious, the respondent in a patent infringement case is allowed affirmative defenses, one of which being that the subject matter of the patent does not deserve a patent. Courts have declared patents invalid in the context of infringement cases and will continue to do so in the future.

Which is all red tape. Because instead of building product and thinking up new problems, they are spending resources on legal cost-benefit analysis.

My point was that even people not in the patent game (who aren't interested in copying others products, or patenting goods -- they find that the IP law doesn't provide them with a net benefit) have to spend resources on dealing with patent IP law.

A lot of law is applicable to your contention. Employment law and Tort law, for example. People who could care less about equal employment or proper allocation of liability still have to pay the costs attributable to employers who have to defend against Title VII employment discrimination lawsuits and product liability suits by way of increased product and service costs provided by those employers. You raise a valid criticism but it isn't a rational basis for, say, axing ip laws but not employment or tort laws...and so I'm wary of accepting that argument.

Are you using hyperbole here?

Yes. I didn't really have a point bringing that up except for flourishment.

You didn't list any cases but feel free to list them now.

The cases I listed, in explicit answer to the statement that no individual could make a profit off investing in invention without patents, included:
You have a near monopoly over the possible applications of the product.
You can use trade secret law to effectively protect your invention.
etc.

I misinterpreted what you meant by 'cases', so disregard that.

When you have a monopoly over some part of the economy, if you can make your product cheaper to produce, you can make a lot of money. If you can make your product better so more people will use it, you can make a lot of money. And if your monopoly is strong, you aren't restricted to things that can be easily defended by patents, nor do you need patent protection. As the only real player in a domain, any advancement in technology in that domain will be captured by your monopoly.

This is all true but a monopoly has no incentive to do the research in the first place. The could make more money by raising prices, producing different versions of their product in a price-discrimination scheme to reach more consumers, etc. They could engage in research but if a cursory glance of the economic landscape is any indication, smaller and newer companies are much more risk-loving than large companies that have to answer to a Board.

To the person who violated the secret, yes. Please identify the relief the originating corporation has against the 'plundering' corporation in the hypothetical I gave. Assuming relief can be granted, the cost and difficulty in proving the unlawful activity is pretty high. I thought you were against getting lawyers involved in complicating matters. Coming up with a workable contract to prevent dissemination of trade secrets is like a obnoxious lawyer tax eh? I thought you were against that.

Ayep, I don't like red tape. In this case, I was just giving examples of ways to defend R&D without patent law. I made no claims that it was as effective in every case, I was disagreeing with the claim that patents where the only way to defend it.

However, trade secret law is woefully inadequate means to protect innovation. It's terrible. It's like wrapping a bomb with cloth in an attempt to lessen its impact. You can't suggest a replacement if the replacement is utterly ineffective compared to what already exists. It would be like replacing medicine with prayer as a way of decreasing medical costs.

How does the current patent system kill innovation in comparison to an alternative system based on trade secrets when the patent system requires publication of innovations to encourage further development by anyone?

I don't know the full answer to this question -- and I would hold that anyone, regardless of their expertise, who claimed a definitive answer to this question is being dishonest.

I can give examples of ways that patents would damage innovation, while trade secrets would not. In particular, if you made an innovation without breaching someone's trade secret protection (ie, and independent innovation), in the case of patents you would still be guilty -- and in the case of trade secrets, you wouldn't be.

Guilty? Don't use that term, nobody goes to jail for patent infringement. Does that really damage innovation though? The example you give may damage innovation on the short term, (but then again how is preventing someone who makes the same discovery as another person from marketing it damaging innovation? The innovation has already been made). But in the long term view, patents are disseminated to the public, trade secrets are not. 18 months after someone applies for a patent anyone can come along and read it, form ideas using his own inventive genius and take off from there. With trade secrets, progress is stuck in some retarded development cycle shrouded in secrecy and ignorance.

I suspect that in many markets this one negative effect (and, because apparently I have to say this, I do not claim that this is the only negative effect, nor do I claim that it is a huge negative effect, nor ..) wouldn't be sufficient to make removal of patents and replacement with trade secrets sufficient to make the trade secret based innovation occur better than patents.

Problems exist in every law. A goal of the law is to find the least evil solution--with all possible legal solutions being evil or resulting in some evil. I find the majority of criticism regarding the current patent system is its inability to catch up with the times. It has floundered over development into cutting edge biological and computer-related technologies, and reform is required to fix the inefficiencies therein.

I don't see where I said "patents are evil and we are better off without them". You seem to be implying that this is what I said, or what I meant. I am not saying this, I don't believe it, and it is really annoying when someone keeps on claiming that I said this, or I meant this, or I believe that.

You keep on ascribing incorrect intentions to me. You are inventing positions that I'm holding, but I'm not holding that position. Stop it.

I don't think you hold that position. As I understood your post, you seemed to be saying that other existing laws or market conditions would be effective in protecting the economic interests of companies in the absence of patent law. I disagree with the reasoning because I feel that such an argument, however valid, doesn't fully consider the effects on innovation, separate from economic concerns. Sorry if I'm coming off as overzealous or quick to characterize your position. I'm not trying to be some pro-patent troll (disclosure: I used to work at the USPTO)

DonMolina
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Re: Copyright Law and how it kills innovation and creativity

Postby DonMolina » Mon Mar 22, 2010 2:35 am UTC

It's not Copyright that kills innovation.

It's a combination of things:

First of all, all major problems have been solved - hence not a lot of new things are invented. Only allready-invented things are becoming better.
The problem is though that the heart of capitalism and the very existence of the "marketing" concept is destroying true innovation in favor of faux-innovation.

When an engineer is pushed back and a single tremendous upgrade is divided in a gazillion small ones just to sell more units innovation dies. When incremental innovation is ginen incentives and genuine re-invention is discouraged as costly and troublesome, innovation dies.

Businessmen, and make-it-happen, fast-lane guys with corporate buzzwords and stupid ties kill innovation.

Lawyers are just making some money by protecting said stupid guys' properties.


After all, a patent only forbids commercial applications of an innovation.
Scientific work is produced. If science makes steps forward, the steps have been made. Innovation has taken place.
The world is a better place. In the face of that, being able to sell *whatever* is trivial in my humble opinion...

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Yakk
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Re: Copyright Law and how it kills innovation and creativity

Postby Yakk » Mon Mar 22, 2010 3:30 am UTC

Emphasis mine:
This is all true but a monopoly has no incentive to do the research in the first place.

Hyperbole, or just wrong?

I cannot tell.
The example you give may damage innovation on the short term, (but then again how is preventing someone who makes the same discovery as another person from marketing it damaging innovation? The innovation has already been made).

It damages the second party -- the second party gets no rewards (or possibly negative rewards) from that innovation.

But if you want direct damage to innovation, follow-on improvements to a patent require that the original patent holder sign off on it. Ignoring the fact that the US patent office will let you patent a ham sandwich if you pretty it up, and once patented it is not cheap nor trivial nor at all guaranteed that you will not lose your company if you go and make a ham sandwich without the approval of the patent holder -- even ignoring that, follow-on research on the original innovation is restricted in both legality and reward to the researchers.
Problems exist in every law. A goal of the law is to find the least evil solution--with all possible legal solutions being evil or resulting in some evil. I find the majority of criticism regarding the current patent system is its inability to catch up with the times. It has floundered over development into cutting edge biological and Pornography Storage Apparatus-related technologies, and reform is required to fix the inefficiencies therein.

A goal of the law is to continue to exist. A goal of people benefiting from a law is to bribe congresscritters to make the law even more benefitial. With but a handful of hot-button issues that the voters swing on, and a two-party system, this means that the industries regulated by the patent law effectively pay for the law they want.

And all the think tanks in the world, and good intentions, doesn't really matter.

As it happens, in many cases this bought-and-paid for law is not completely horrible. Companies and industries that are profitable are the ones that effectively write the law under which they run: this isn't perfect, but it isn't the worst of all possible worlds.

"Inability to keep up with the times" is an excuse, btw.

As noted, different industries behave differently under patent regimes. Biotech, with the regulated research model, behaves differently than near garage-shop level innovation in the computer programming industry (mixed with MAD-style patent portfolios amoung the big players), which behaves differently than hardware, which behaves differently than automotive, which behaves differently than agribusiness.

I still gotta bug that friend of mine for those papers I read.
DonMolina wrote:First of all, all major problems have been solved - hence not a lot of new things are invented

Strange. I haven't noticed a solution to fusion, materials strong enough to build a space elevator, room tempurature superconductors, smart cloth, or dozens of "major problems" that need solving.
One of the painful things about our time is that those who feel certainty are stupid, and those with any imagination and understanding are filled with doubt and indecision - BR

Last edited by JHVH on Fri Oct 23, 4004 BCE 6:17 pm, edited 6 times in total.

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BlackSails
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Re: Copyright Law and how it kills innovation and creativity

Postby BlackSails » Mon Mar 22, 2010 3:34 am UTC

Yakk wrote:Strange. I haven't noticed a solution to fusion, materials strong enough to build a space elevator, room tempurature superconductors, smart cloth, or dozens of "major problems" that need solving.


Im also lacking a malaria vaccine, a cure to AIDS, a decent cure to any sort of cancer, a cure for any number of other diseases and so on.

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Re: Copyright Law and how it kills innovation and creativity

Postby Azrael » Mon Mar 22, 2010 11:49 am UTC

DonMolina wrote:First of all, all major problems have been solved...

That idea is so far from supportable, I suspect a little part of your soul may have died from posting it in Serious Business.

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Re: Copyright Law and how it kills innovation and creativity

Postby BrainMagMo » Tue Apr 13, 2010 6:39 am UTC

Cres wrote:A simple answer to the question 'how does patent law damage innovation?' is that, in general, it doesn't damage it at all.


Invention comes from building on earlier inventions.
However, if your access to earlier inventions is prevented by IP (intellectual property, e.g. patent/copyright/trademark) law, then you can't invent.
Ergo, IP laws can hurt invention.
Snowflake wrote:Competition drives innovation
Copyright law createscompetition
Ergo, copyright law maintains innovation.

The question is - what kind of innovation?

A huge percentage of today's innovation and creativity are ultimately detrimental to humanity.


Actually, IP laws create limited monopolies over a certain idea (if a patent) or work of art/science (if copyright) so that the creator can ensure a profit for themself.
Ergo, IP laws reduce competition, but are still intended to drive innovation.

lukertin wrote:OP: For a JD candidate, you sure confuse patent law with copyright law like fruits and vegetables. Copyright law doesn't kill innovation because there's nothing innovative about copyrightable subject matter. As for how it kills creativity...creative people make new stuff and copyright it. If copyright law prevents another from coming along and making the exact same stuff, how does that kill creativity?


Copyright law also prevents people from making similar stuff, from using earlier stuff as part of new stuff, etc.
Example: sampling in music. Currently, it is illegal to use even one note of a previously-made work in your own song. However, re-sampling a song a putting it on a loop or auto-tuning it somehow is very popular right now.
Thus, even clearly new works are stifled by copyright law.

Stop double (triple) posting. You've been asked repeatedly, and next time I'm more than likely just to delete everything.

-Az


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