DISQUS

The USPTO and courts affect how a patent is enforced, apportionment of damages, etc. Tim does not, but writes of how the patent will be enforced and the ensuing effect on innovation as if he did.

***The problem with the USPTO and the courts is that they are generally NOT skilled practitioners and not in a position to judge properly if an idea is non-obvious.***

I agree with this and think that a major down-turn in the effectiveness of the patent system in recent years has resulted from adequacy at the patent office. However, the solution is not to have Tim host an amateur patent agent-psychic predictions hour on TLF.

Tim, its how the USPTO and courts construe the patent, not you.

You can't just summarize a patent claim at the 100,000 level, take away from that an over-simplified understanding of the patent, and derive pessimistic visions for the future of innovation:)

I've pointed out that this is the basic formula of your patent of the week series.

***I think you'd be a more effective advocate if you spent less time questioning peoples' motives and more time engaging peoples' actual arguments.***

Tim, please don't display such Texas sized sophistry:)

http://www.techliberation.com/archives/040774.php

***Calling the sale of software a “license” is little more than a word game.***

Tim, licensing vs selling software has ramifications for FOSS. Did you consider how your arguments reflect on the effort to standardize licenses to reduce transaction costs for FOSS, and the debate on capturing the spirit of the FOSS community in the GPL.

Thats funny, after summarizing several dozen patent claims, and declaring those patents simple, Tim admits he's confused about their boundaries.

Lewis, I understood Tim to argue that uncertainty over property boundaries leads to uncertainty over market activity. A developer may be deterred from entering a market b/c he cannot ascertain whether or not he infringes on any patents, and thus is deterred from investing in commercialization activity.

I for one would support some kind independent invention defense for patents (as well as a limited reverse engineering and fair use defense), but the fact of the matter is that a developer should do a patent search at some point b/c such a doctrine does not exist in patent policy.

I believe we're getting muddled up in hypothetical problems with the patent system. Most developers will not do patent searches b/c they know patent holders don't have incentive to chase down all instances of possible infringement. Still, it would be responsible to do patent due diligence when development reaches the post-invention commercialization stage and seek out licensing arrangements with patent holders.

***Patents, in contrast, cast a cloud of uncertainty over a software product by giving dozens of different people the potential to sue you for patent infringement with no easy way to find them and no way to be sure if a given patent covers your product or not. It’s downright silly to equate the two.***

1) patent searches will help, and if you can't deal with some measure of uncertainty, innovation should not be your business (and neither should real estate investment for that matter:)

2) Tim, can you name instances where the patent system has deterred R&D;, or a start-up from entering a market?

3) its questionable to equate eminent domain and the patent system, so I'm not sure why Tim is calling Mark's argument silly when the whole basis of his post is oddball.

4) Tim's writings on patents suggest that the tech sector is hampered down, with little innovation and little investment in new activity. Hmmm, actually, that sounds like the FOSS market, the rest of the sector is doing fine- look at the stock market.

***I don't care one whit about the thousands of companies around the world that own software patents. I devote the small measure of care to people. Companies, and the patent system, exist to produce things for people. If they are producing less than they should, I wouldn't hesitate a moment to change things so that they produce more.***

Jim Haper, thats a pretty strong statement. Is this a war on producers you're waging?

It will not help society to badger producers. Vote with your wallet, rather than hounding them with ideology.

After abusing the terms "monopoly" (for which Tim will use at least 5 meaning in one paragraph), "obviousness" (for which Tim has his own standard w/r/t patents, he'll simplify a patent claim and then declare his summary obvious), and "centralization" (can Tim just explain when and to what extent decentralization is beneficial, rather than touting it as an end-in-itself) the most mis-used term used by Tim is "analogy."

MikeT, my excerpt was aimed at Tim's positioning of the software patent debate as David v Goliath. As Don pointed out, this was not Tim's main point, but I still see it as a constant theme he leverages.

I'd like Tim to explain whether the patent system has prevented any independent developers from entering a market in which they had some promising viability. My feelilng is that there are not many examples, and consequently little negative impact on innovating activity. Tim is, again, making mountains out of molehills.

Regarding the independent v politically entrenched battle Tim has introduced, well, thats life. Because we, in the US, are given some equality in the political process, many of us *expect* the same kind of equality in the creation of culture, influence on policy, and outcome of commercial activity- and those with more expectations are often the most disappointed by the reality that inquality of many sorts exists in a free market economy.

Don, I was critiquing Tim's positioning of the patent debate as a battle between independent inventors v big firms.

By the way, I"ve bought (real) property in planned communities. Yes, the benefits of living in a free market, socio-economic mobility, the ability to enjoy the pleasures of economic freedom.

***a software developer shouldn’t be required to conduct a patent search before writing a new piece of software.***

Thats funny, whenever an independent developer goes after a large firm, he's called a patent troll. Whenever a large firm goes after the small guy, he's called a bully. Sheeesshhh.

***Tim Lee, in particular, has been particularly vocal about his skepticism of patent law and practice. His patent of the week series provides pretty good examples.***

Yes, but Tim should ask himself whether his own standard of non-obviousness helps inform patent policy discourse. He should also ask himself why he criticizes the rise in patent lawyers who apply scientific backgrounds to patent policy- they're doing professionally what Tim does as an amateur.

Jim Harper, have you done more writing on how your views comport with the Epstein article. I see Epstein closer to JVDeLong...

...on the other hand, will allowing circumvention of shopping cart locks further innovation, facillitate freedom, deter the market for circumvention devices, prevent another revolution in the Safeway parking lot:) And what side of the debate will Libertarians fall on if they hold four freedoms disproportionately to all other things in life like the Free Software Foundation?

Masnick, Branstetter will fall on both sides of the fence just like any other empirical researcher. I was not pointing him out *just* to show the case for patents, but somebody you should check out.

Jim, we discussed papers by Cockburn (and I believe Merges). I addressed your critiques where you pointed out excerpts of my writing, including a post where I said there is a "consensus" among academics rather than limiting the pool to the three I discussed in the blog. I returned your email, only to get no reply.

Many of the papers I"ve reviewed say more than this: "most are directed to showing that software patents have not yet harmed the software publishing industry."

Enigma, you've read my work enough to know Ive reviewed at least 100 IP articles to support patents over the past year.

Tim's post gets more and more bizarre as you re-read it. For some reason, he wants Bill Gates to be an obstinant, rigid fool that can't change his mind over a span of 16 years. Gates is too smart though, he learned how to leverage patents for his firm. Free software firms on the other hand will never learn from their mistakes.

Masnick, see research by Lee Branstetter and Keith Maskus on how IPRs have helped nations industrialize and form sophisticated economic sectors. Branstetter in particular has studied the effects of patents following nations' strengthening their IPR policies.

Of course, even if there is persuasive economic evidence against patents, Tim wouldn't buy into it. He would opt instead to look at one patent at a time and rely on anecdotal evidence to show how the patent system should fall to molehills. If you read his post above differently, let me know.

Masnick, Tim asked for evidence supporting software patents and I pointed him in a direction where he could find some.

I can't believe Tim just wrote a blog dismissing economic evidence on innovation and patents. He'd rather give anecdotal evidence than look at empirical analysis, and would rather analyze one patent than a dataset of thousands of them. That’s fine if its Tim's approach, but it makes it odd to present generally accepted forms of evidence to him, as he won’t listen.

In any case Masnick, there are good arguments against software patents, notably one of the most talented scholars I'm aware of- but why should I tell you Masnick, I don't work for free:)

Re/ Moser. She has made several arguments supportive of what I see as valuable in the patent system: 1) patent facilitate the diffusion of innovation and knowledge exchange, 2) patents will draw innovation efforts towards industries where they are available. As far as Moser's *non-supportive* arguments, you have to remember that she is an empirical researcher. I would be surprised if Moser *did not* find negative effects of patents.

No academic I'm aware of, even those I cite most often as supportive of software patents, likes software patents unconditionally.

As far as Lemley is concerned, Masnick, I'm not sure why you thought I was arguing that he opposed an independent invention defense for patents. Why would I do this when *I* support a limited independent invention defense. Of Lemley, I wrote:

Lemley does not entirely downplay the potential value of an independent invention defense. In fact, he finds that such an addition to patent doctrine can be valuable to innovation in the technology industries, but reform must be approached cautiously in order to avoid debilitating effects.

You are right Don, Teece/Somaya make that point, and so far as I understand Teece/Somaya, in such a case they would propose that a firm either adopt an integrated development model, or leverage various forms of IPR clearance (patent pools, cross-licensing, etc). The Teece/Somaya paper addresses the former point based on its framework of how costs shape firm organization, and the latter point is explicitly addressed towards the end of the paper. I don't see the passage having the significance you may imply though.

Oh, I forgot. Lee Hollar has done some excellent work on IPRs, he's a comp-sci prof.

Apologies for the double-post, I put this in the wrote blog.

...for pro-software patents arguments, go to IPcentral and read some write-ups of Profs Merges, Lemley, Teece, Mann, Moser, Allison, Cockburn, Moore and others I've done. Their datasets combined contain thousands of patents, and their analysis, even if you disagree, should be addressed rather than dismissed with a blind eye.

I like how Tim has turned more and more to ideological arguments in his string of patent posts today...

Tim, for pro-software patents arguments, why don't you go to IPcentral and read some write-ups of Profs Merges, Lemley, Teece, Mann, Moser, Allison, Cockburn, Moore and others I've done. Their datasets combined contain thousands of patents, and their analysis, even if you disagree, should be addressed rather than dismissed with a blind eye.

Mr Sailor, thanks for the *nice* reply. Why don't you go read the article I posted (I don't want to put a link here, spam filter) and then say something to me.

Actually Masnick, Kitch's prospect theory (which I think you unknowingly criticize in most of your patent writings) proposed the patents be obtained early in the *invention* stage to facilitate the development of complementary *and* incremental technologies.

As far as when patents are pertinent, in the invention v innovation stage, I'll hold off from commenting here. The relation between invention and innovation is a bit more complex than where this discussion may lead. Prof. Bronwyn Hall has done some excellent work in the area, which I'll review and write something on (Masnick, I'll even send you a copy).