Subject: Re: "incentive void" (was Re: A different patent covenant...)
From: "Ben Tilly" <>
Date: Fri, 6 Oct 2006 12:37:55 -0700

On 10/6/06, <> wrote:
> Ben Tilly writes:
>  > On 10/5/06, <> 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.

Of course it is.  It is a leading question that assumes an answer that
is false.  I never said that the Cameron technology was "oh-so-obvious
and has been forever", so asking why I thought that is a leading
question that is begging a false answer.  It has exactly the form of
the famous wife-beating question.  And is the same logical fallacy.

>  > 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".

Stephen, please stop being an asshole and pay attention for a second.

I already told you that I thought you were attributing someone else's
comment to me.  This reply verifies that you definitely are.  The
quote you're attributing to me was not my quote.  If you think that
I'm lying, feel free to go back and search.

> Please disambiguate.

WTF is there to disambiguate?  It wasn't my comment.  I already said
that I was unqualified to judge its accuracy one way or another.  That
seems pretty unambiguous to me.

>  > > 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.

You are drawing unobvoius connections.  I think I've finally figured
out what you were talking about.  Now that I see it, I think I would
have had to be a mind-reader to understand you the first time around.

>  > 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.

And this is the comment that clarified things.

There is some justice in what you say.  I am suggesting raising the
bar on what it takes to get a patent.  That is because I think there
are a lot of very bad patents, and I believe that  bad patents make
the patent system less worthwhile than it could be.  I further believe
that a key part of the problem it is very hard to judge whether an
idea is obvious, *particularly* since the patent system is meant to
protect ideas that are obvious once you hear them but which you
wouldn't have thought up.

In particular a big problem with the patent system is that the default
is for the patent office to be generous when granting patents, and
then they leave it to the court system to take care of the bad
patents.  But there is a real cost to litigating patents, and a big
cost when people choose not to litigate bad patents.  This issue and
these costs are particularly bad in new areas because standards
haven't really evolved, and so the obviousness of everything is
debatable.  See, for instance, the space of *X on the web" patents
just a few years ago.  Lots of people (me, for instance) found them
obvious.  But the patent office was very generous in granting them.
Would-be patent holders were very aggressive about pursuing them.
(Hey, why not when they are being handed out like candy?)  Lots of
companies faced the choice of what to do when you're being shaken down
over a patent that they thought was bogus.  (I worked for a company
that this happened to.)  Most didn't litigate.  Some did.  I believe
that most won, but some lost big.

What I'm suggesting is that we keep the patent office's default, but
we introduce a new criterion, which is that your invention has to have
been possible for a long period of time.  Then if nobody else came up
with it first, that is evidence that it really wasn't obvious.  If
someone chooses to litigate on the basis of the fact that it was
obvious after all, they are free to, but they have a much higher bar
to pass.  In particular you can point out, "Hey, if this was obvious
then why did nobody invent this for a decade?"  That's pretty direct
evidence that it wasn't obvious after all.

If you think the patent system as it stands is working great, then you
won't agree with the issue that I'd like to see solved, and you won't
like the solution.  If you think the patent system has issues, and
those issues are the ones that I am naming, then you might think this
is worthwhile.

To recap, I'd like to add a very objective criterion that would result
in far fewer patents being issued, but which would make the issued
patents far harder to challenge on the basis of, "Oh, that's obvious."
 The result is fewer patents, but those patents would be of much
better quality.  I think this would improve the quality of the system.

>  > 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.

Those two subsets are very different, and are used in very different
ways.  Lumping them in together serves only to confuse the issue.
Particularly when you lump them together and do NOT clarify that
you've lumped them together.  I was left thinking that by "relevant
existing technology" referred only to the technology that this
invention depended on, and I wondered why you were replacing my fairly
precise description with an uninformatively vague one.

>  > > 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?

Who says?  I do.  I've seen too many patents that I look at and say,
"That patent should not have been issued."  A method for exercising a
cat comes to mind.  A more technical one is the idea of buddy lists on
an IM system.  (That one is not only obvious, but there is prior art
for it.  I saw it on chess servers in the mid-90s.)

Furthermore I've seen more patents that I look at and say, "You know,
I can't really judge that.  And I don't think they could either."  It
may or may not be a perfect example of something that the patent
system is supposed to protect.  An idea that is perfectly obvious in
retrospect which is hard to think of.  Certainly I can judge that it
is perfectly obvious in retrospect.  Certainly I know that it wasn't
established practice.  But was it so unlikely for someone to think up
that it is socially worth giving Amazon 20 (or was it 17 when it was
issued?) years of protection for it?  I suspect not, but I can't
decide.  Many thousands of programmers are sure not, but I suspect
they haven't tried to think hard on it.

And then there are some patents that I look at an say, "That was a
good invention."  I've named a couple involving shoes.  Two other good
examples are post-it notes and the zipper.

> 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.

What distinction are you drawing between a non-innovation and an
"ex-ante obvious" claim?

>  > 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.

As contrary evidence I'll point to software.  The current enthusiasm
among lawyers and some big companies notwithstanding, plenty of real
innovations are created and spread through the software world without
need for patents to drive them.

>  > 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.

I can point to a number of examples where a nascent field (eg early
flight in the USA) was stifled because of patents.  I can point to no
examples where a nascent field was clearly assisted into existence by
patent activity.  (Beyond the initial patent that is.)  Given that
anecdotal evidence, I'm comfortable in suggesting that it is a good
thing for government to refrain from handing out lots of long-lasting
monopolies in a rapidly changing area of technology.

>  > 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.

Touche.  However there is a world of difference between the two
statements.  The first says, "You don't get it because it is not
original."  The second says, "You don't get it because it might be
obvious."  There is a pretty big gap between "not original" and "might
be obvious".

>  > > 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).

WTF are you talking about?

Having one permission doesn't give you all permissions that you need.
If blue LEDs are patented, and flashing shoes are patented, you cannot
make blue flashing shoes without the permission of both patent

> 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.

That is a very good point.  I don't have any practical suggestions for
how to get around it.  Of course I also don't have any practical
suggestions for how to get lawmakers to pay attention to this idea...

BTW how does this work in situations where one country says something
is patentable and another does not?  For instance the USA issues a
software patent, I presume that the USA has treaties with France, but
France doesn't recognize software patents.  What then?

>  > 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

Point, I did say that backwards.  They take you to court, not vice
versa.  However in this kind of negotiation you're generally given an
opportunity to avoid court, and most companies leap on it.

> 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.

I'm not sure of the details, but I notice that you've left the cost of
my lawyers out of it.  That's a significant consideration.  Plus if
they take me to court and I'm not using it by the time the case ends,
I'm sure they still get something for the fact that I was using it at
the start of the case.  (And until recently, they could deny me the
right to use anything that depends on their claims while the case was
being litigated, I'm glad that no longer happens!)

> *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.

Sometimes it works that way, sometimes not.

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

I don't know what is average.  I do know that this does happen.

>  > 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.

Where did Larry say that?  (I'm not saying he is wrong, I just don't
remember the comment.)

>  > 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.

My problem with a mandatory community patent review: there are so many
patents out there and the community has sufficiently little motivation
that the community doesn't do a very good review.  But then the fact
that the patent passed review can be introduced in court to make the
patent harder to defeat.  This is not a win.

>  > 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.
> :-)

I'm more inclined to believe the 70% figure though.  It was based on a
lawyer reviewing a random sample of IBM's patents and deciding what
fraction would probably fail.  He thought that IBM was probably better
than average.

> 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.

I'm not sure.  It was something I saw around 2000 that stuck in my
head.  It might have been Greg Aharonian though.

> 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.

Well in IBM's case they generally only want to cross-license, and if
they come after you they usually have a stack of patents to present.
Even if most are invalid, you know and they know that they'll get you
on something.

>  > 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.

What incentive is there for the adversaries to do their job well?

>  > 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!

It still costs money for the adversaries to litigate it.  And the odds
that they personally will be the ones to benefit from any given patent
not being granted are very low.  What is their motivation again?

>  > 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
>           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?

That your taste in music sucks? :-P