Subject: Re: "incentive void" (was Re: A different patent covenant...)
From: <stephen@xemacs.org>
Date: Fri, 6 Oct 2006 17:46:47 +0900

Ben Tilly writes:
 > On 10/5/06, stephen@xemacs.org <stephen@xemacs.org> wrote:
 > > Ben Tilly writes:
 > >
 > >  > Please stop trying to guess why I thought so and actually **ASK** if
 > >  > you care.
 > >
 > > My bad.
 > >
 > > Given that you refuse to claim qualification to judge, my curiosity is
 > > *really* piqued.  Why *did* you think that the Cameron technology is
 > > "oh-so-obvious and has been forever"?  (Please note that those words
 > > are the syntactic referent of your word "so".  Presumably you didn't
 > > quite mean that, but I'll let you disambiguate.)
 > 
 > That's like asking if I've stopped beating my wife.

Of course it is not.  In my experience you've never made a reference
to you "beating her" in a context where "her" referred to your wife.

 > For the record, I never thought that, and never said I thought that.
 > I challenge you to go back and find where you think I said that.  I
 > believe you will find that you were attributing someone else's
 > comments to me.

I didn't say that you thought that, either.  I said that was the
syntactic referent of your word "so".

Please disambiguate.

 > > You'e using the same basic concept of "relevant existing technology",
 > > defining it broadly when a broad definition makes it easy to support
 > > denial, and defining it narrowly when a narrow definition makes it
 > > easy to support denial.  That's true whether or not you use the same
 > > term, and any patent advocate with a room-temperature IQ will call you
 > > on it.
 > 
 > I'm wondering where you're getting this from.

The definition of "prior art" and your words.

 > AFAICS the question, "Could someone have built this 10 years ago?" is
 > far less subjective than the question, "Is this obvious to an
 > experienced practitioner?"  There is far less room for debate and
 > opinion, and far more for concrete facts.

Stipulated.  You're still restricting the relevant tools that the
patent applicant may use to build his mousetrap to the Stone Age,
while all the mousetraps which are built with Iron and even the
nascent Postindustrial age tools are permitted as evidence that what
he's doing is either old hat or plain as the nose on your face.

 > Furthermore I have to point out that you're re-writing what I was
 > saying in a very unfair way.  I did *not* say anything nearly as vague
 > as, "relevant existing technology".

Show me where I claimed that is what you said.  "Relevant existing
technology" is a generic class that contains both the very restrictive
set of tools that a patent applicant is allowed to use in building his
innovation and the completely permissive set of tools you are allowed
to use to justify denying his patent application.

 > > That's not a justification for *this* bar, that's a justification for
 > > finding a better way to judge "obviousness".  *This* bar is only
 > > indirectly connected to obviousness.
 > 
 > People have been trying to judge obviousness for a very long time,
 > aren't doing very well, and we aren't making significant
 > improvements.

Who says we aren't doing very well?  All I've seen are people who look
at an invention *after* it has been patented and say "I could have
done that."  Not a reliable witness, and worse, who's to say that the
person in question is merely a competent practitioner?

I'm much more confident that great swathes of prior art have been
improperly ignored and patents granted on non-innovations than that
many patents have been granted on "ex-ante obvious" claims.

 > Whichever version you pick would make the patent system be less likely
 > to cause chilling effects on new areas of innovation.  Yet you'd still
 > provide incentives to come up with ideas that otherwise people would
 > not come up with.

Sez you.  I believe that the incentive to diffuse many innovations
(*not* inventions) would be greatly attentuated.  Sez me, of course.

 > My suggested change follows the principle of, "Let's not have
 > government intervene until the market has demonstrated that it has
 > failed."  If the market is healthy and bubbling with good ideas
 > without government intervention, then there is no need for government
 > to intervene.

Thing is, you're doing the exact opposite.  You're setting up
government mandated differentials across fields that you have no clue
about, because they haven't even happened yet.

 > >  > As you can see this criteria is entirely separate from prior art.
 > >
 > > Sorry, I don't see it.  It uses the same basic concept.
 > 
 > Prior art says that you can't get a monopoly for inventing this idea
 > because someone else invented it before you.  My idea says that you
 > can't get a monopoly because it is likely that someone else would have
 > independently invented it.

Hmmm:

Prior art says that you can't get a monopoly...because   someone else   invented it....
My idea   says that you can't get a monopoly   because...someone else...invented it
  .

No changes necessary, only ellipses to expose the basic concept.  I
don't see a difference between those structures.

 > > Of course, by the ten-year criterion it doesn't apply to blue and
 > > white flashes (Nakamura didn't invent the blue LED until 1993, and
 > > didn't become "widely available" until the late 1990s).  How does your
 > > criterion deal with that?  (That's a real question.)
 > 
 > I see no issue.  A patent covers whatever it says it covers, and not
 > just your original invention.
 > 
 > Suppose you get the patent on flashing shoes.  Technology improves
 > such that you can make prettier flashes.  You still have the patent on
 > flashing shoes, so you are the only one who is allowed to make flashes
 > of either kind.

That's what I thought you'd say.  So in theory the shoe maker can use
Nakamura's invention without paying Nakamura, because it couldn't be
invented until well after ten years before it was invented, so it
isn't patented.  Insult to injury (you may recall that Nakamura got a
$10,000 bonus for that patent, and had to sue to get his share of the
several hundred M$ his company made from licensing it).

Note that AFAICT the blue diode was in great part a demand-inducing
invention.  Nichia themselves had no application for it; they sold it
to others, in many cases for applications that they surely didn't
foresee (flashing kiddie sneakers! who'd-a thunk it?)

Finally, since Nakamura patents in Japan, the U.S. must honor it.  The
mutual recognition required by international treaty is a practical
issue that your proposal needs to deal with.  Of course it affects any
national policy change, but here it looks like a killer loophole for
multinationals.

 > Adversarial processes have a number of issues, mostly centered around
 > the cost of having adversaries confront each other.

 > For instance with the current patent system suppose you're approached
 > by a patent holder who is asking for a license from you for a mere
 > $100,000/year.  You look at their patent, decide it is BS, and think
 > that you have a 70% chance of beating them in court.  But if you take
 > them to court and lose it will cost you millions.

IANAL, but I don't think the law works that way.  First, *they* take
you to court, not the other way around.  This takes time; you get to
work on working around the patent.  *If* you lose and you're currently
practicing the claims, you'll pay $300,000/year, because that's what
thrice what they asked.  If they win, then bump your future fees to
$1,000,000/year, you brazen it out.  I would guess the chances are
good that you'll pay $300,000 again, and maybe lose further profits to
an injunction.  By this point, you've probably had three years to work
around their patent, which you assessed as weak in the first place.

*They* on the other hand have had three years of court costs, and
worse than 2:1 odds of losing their patent.  I think that all that
probably pushes your odds of successfully getting them to go away at
the cost of a very black scowl on your part to say 10:1.

Sure, none of this is pleasant, but I suspect that you're painting a
much blacker picture than average.

 > Even though you think their patent is BS, you're probably going to
 > fork over the $100,000.

That's not what Larry says is his experience.

 > This is not a hypothetical example.

No, but it's quite irrelevant: all I'm talking about is a mandatory
Community Patent Review, which will as a matter of course be made
available to the patent examiner.  You've chosen a case worse than the
worst I can imagine for the proposed system but presented it as if it
could be typical.

 > I've seen estimates that over 70% of software patents would not
 > hold up in court.

Hey, I've seen claims that 99% wouldn't.  But I don't believe them.
:-)

Do you recall who you're citing?  Eg, Greg Aharonian is not totally
trustworthy on this; he has a, er, professional interest in inflating
those numbers.

Hmm ... any references on this would be appreciated.  It seems to me
that if it's really as high as 70%, then it should be possible to
create mutual defense groups, even ex post.  Ie, although the troll
does have the advantage of picking his victims, the victim has some
chance of being able to (cheaply) string it out until he's able to
identify others, and then they can share the cost of busting the
patent.

 > But the invalid ones are still worthwhile because nobody wants to
 > pay the cost of litigating them.  And it is common practice for
 > patent trolls to go for a lot of small fees from lots of companies
 > knowing that even though they'd probably lose, it isn't going to be
 > worthwhile for any individual company to call them on it.

Hey, guess what?  With the adversarial process taking place at the
*application review* stage, the cost of *calling* them on it can be as
low as the cost of spamming.  In practice, it will be higher than
spamming---you have to pay attention to what's coming up for review so
you can bitch about it, and so on.  On the other hand, a lot of
companies won't have to pay much attention because they can let IBM do
it for them.  It would also be possible to share the costs in patent-
application-busting consortia.  Not only will this drive the approval
rates for bad applications way down, it will also push the costs of
all applications up if people are forced to write better, more precise
claims because the adversaries "clarify" your claims to be much
narrower in their briefs.

 > In academia the process works well.  In part because it doesn't cost
 > as much to write a paper criticizing someone else's research as it
 > does to take someone to court.

Good point, but it's *my* point.  The whole point of making the patent
*application* process adversarial is to get most of the conflict to
take place at a point in time where the applicant is not in position
to choose his victims.  It's the other way around ... buwhahahahaha!

 > I don't have sound enabled on my laptop, nor can I find lyrics. Would
 > you mind explaining the reference?

				 ****

	Well, shazam! feelin' grand, guess I'm mosey into town
	  Raise some hell all around, gonna have a good time
	Man, ain't he neat, dressed to kill from head to feet
	   The town quiets down, people stare in disbelief

			       He's got
	       CHROME-PLATED PLATFORMS NINE INCHES HIGH
	 BATTERIES IN THE SOLES AND NEON LIGHTS IN THE SIDES
	  A patent leather jacket with a picture on the back
      It's Marilyn in the nude and she's got writin' on her ass

			      That says
			 A skinny little boy
			 From Cleveland, Ohio
		     Has come to chase your women
			 And drink your beer.

				 ****

Regional rock, what can I say?