Patent Terror

I'm hear at my undisclosed vacation location (Not Santa Fe -- ha! -- that's coming later) and you can expect blogging throughout the week to be somewhat sporadic. Tim Lee has a good column about technologu patents run amok in The American, which I think is an AEI publication but the article's still good.

4/24/07 9:52AM del.icio.us this incoming links

Comments

"I'm hear at my undisclosed vacation location"

I nominate a new medical condition - homophone dyslexia - of which Matthew Yglesias is patient zero.

Posted by: Petey on April 24, 2007 10:36 AM

I'm hear at my undisclosed vacation location

Now we know the move to The Atlantic hasn't changed Matthew one bit.

Posted by: Al on April 24, 2007 10:37 AM

Maybe the Atlantic has some technologu that can help Matthew with his problem.

Posted by: Preston on April 24, 2007 10:42 AM

Are you opening up a restaurant in Santa Fe?

(sad, I know).

Posted by: Reality Man on April 24, 2007 10:50 AM

The AEI is fucking awesome you semi-literate, full fat ogre.

Posted by: pimp hand strikes! on April 24, 2007 11:29 AM

If the high court overturns software patenting, as Lee suggests, would that reverse the billions (trillions?) of dollars worth of judgments handed down in the last 20-odd years? Would Blackberry get its money back, etc?

Posted by: Ezra 1 on April 24, 2007 02:14 PM

Hmmm. Maybe Matthew could do like Katie Couric.

1) Excerpt from
http://www.philly.com/inquirer/entertainment/20070422_Gail_Shister___CBS_evening_blues.html
**********
"Couric took another P.R. hit recently when it was revealed that her CBS blog, Katie Couric's Notebook, was written by a producer. The ghostwriting became public only when CBS fired the producer for plagiarism."
*******

2) No --Wait! -- it gets better. The Philly Inquirer's blistering critique of Couric's reign at CBS was published yesterday. This morning, FOX NEWS came out with a ranting , passionate, table-thumping defense of Katie Couric. See http://www.foxnews.com/story/0,2933,268020,00.html

3) I'm not a strong devotee of Michel Foucault but, like Andrew Sullivan, Michel did find an acorn now and then. So
when I deconstruct the Fox Article, I find myself asking why
FOX NEWS -- a bitter rival engaged in a vicious, cut-throat, zero-sum fight for viewers with CBS -- would be strongly defending Katie Couric if Katie Couric was a good thing for CBS.

4) Now we have Matthew is pointing us to an AEI publication.

Has some black hole wandered into the solar system and is distorting reality? I feel like I'm in one of those Christian "end of days" novels.

Posted by: Don Williams on April 24, 2007 03:03 PM

"I feel like I'm in one of those Christian "end of days" novels."

No. You're just a garden variety spammer posting your off-topic ramblings.

Posted by: Petey on April 24, 2007 03:06 PM

homophone dyslexia

It's weird, isn't it? They're not exactly typos. At first I thought he was using some kind of voice-recognition software that couldn't tell "to" from "two" from "too," or "there" from "their" from "they're," or "hear" from "here." I have no idea how you consistently get those results using a keyboard.

Posted by: Hogan on April 24, 2007 03:25 PM

Hogan, I think the secret is to consistently press down on the wrong letters.

Posted by: peep on April 24, 2007 03:49 PM

"Off topic" to those of limited ..er.. recognition.

Who ever heard of a blogger suffering any penalty for plagiarism? For using ghostwriters? Isn't soft-core plagiarism what runs the blogosphere? Where would bloggers like Instapundit be if they could not daily piggyback on /link to the very news organizations they deride?

How long would blogs survive if Mainstream news organizations
killed "fair use" of their product in the way in which lawyers of software companies have done for programming?

Why are obvious mental algorithms considered "intellectual property" but a news story --a constructed narrative of information developed by costly research -- is not?

A more practical consideration: How many small blogs are prepared to fight long lawsuits with the New York Times or CBS?

Is it because RIAA has gone to the trouble of bribing Congress to give them a property right --created out of thin air by lawyers -- whereas the news organizations have not yet got around to doing so?

Posted by: Don Williams on April 24, 2007 03:54 PM

Eh, he just has to get all the remaining proofreading glitches out of his system before he becomes A New Man next week. Also, ponies.

Posted by: DaveL on April 24, 2007 04:20 PM

And here I thought the article was by Tim Berners-Lee, father of the WWW, instead its Tim B. Lee a free market think tanker. But, in looking at his writing he seems to end up on the same side of many technology policy arguements as the libertarian, "information wants to be free" tech heads I know and read.

Posted by: tiparillo on April 24, 2007 04:33 PM

I think that "homophone dyslexia" thing is just plain old dyslexia. Matt seems to have a very mild case of it. His typos are very similar, though fewer in number, to those of a moderately dyslexic co-worker of mine.

Posted by: too many steves on April 24, 2007 04:50 PM

"I think that "homophone dyslexia" thing is just plain old dyslexia."

The wikipedia page on dyslexia does indeed mention homophones...

Posted by: Petey on April 24, 2007 04:56 PM

Thanks for digging into the patent issue, Matt. Another good example of incumbents exploiting the ambiguity of the patent horror-show is the shutting down of Reveal, a baggage scanning company, by duopolists InVision and L-3. This happened a year or so after 9-11, and would have led to much cheaper and smaller security devices.

In general the patent system has been comprehensively captured by the incumbents, with the exception of the patent trolls, who are now a subsidiary of the lawyer lobby. (The trolls are also different from the Vonages of the world because they make no products, and are therefore not threatened by injunctions against their non-services.) The way it works is that companies like Verizon file patents willy-nilly, as do all other big companies, and eventually some of these patents cover indispensable steps in complex processes. Since all software involves many thousands of processes all software infringes on many patents. The only way to prevent those infringements from leading to injunctions is to cross-license entire patent portfolios between large players in a grotesquely anti-competitive cartel. In general real technology companies rarely sue anyone, and keep their portfolios defensively. The effect, however, is that in order to do something like what Vonage did you must first join the cartel, and the only ticket is many years worth of roulette-like patent applications. So it's now a pre-condition to innovation to have existed for many years and have a big stake in the status quo.

Posted by: Timon on April 24, 2007 05:31 PM

Some possible reforms (normally I'm against increased regulation and govt involvement, but in the case of a patent the owner is basically asking the govt to suppress other people's ability to engineer freely, and there should be some limits).

(1) Enforce the non-obviousness requirement by having quota for new patents each year - say 5,000. The USPTO will have to pick the ones with merit; if necessary have external reviewers.

(2) Licensing is through the USPTO, at a fixed price declared in advance by the grantee, and open to any buyer w/o restrictions.

(3) The grantee has to pay the fixed price in order to use their own patent.

(4) Instead of fixed patent fee, the USPTO is financed by skimming a modest percentage of the licensing fees received. (This would increase the USPTO's incentive to do a good job in picking patents to fill each year's quota).

Posted by: eeyn524 on April 24, 2007 07:21 PM

eeyn524,

A big part of the current mess is that in the early 90's the fad for managementese-based pseudo-entrepreneurialism in government led the USPTO to implement a funding mechanism whereby they would be paid for ginning up patent applications. Creating a further monopoly within the monopoly-granting monopoly doesn't seem like a good position if you are "against increased regulation." It is perfectly impossible to increase government regulation of the patent system, because the patent system is 100% government regulation. Like all regulatory schemes it is subject to capture from the groups it regulates.

There is a tendency to conflate copyright and patents into a broader natural right, and in the case of copyright there is some justification for an expansive definition. It is impossible to accidentally violate copyright, ie to independently produce something longer than 10 words that happens to be identical to someone else's writing. Patents are designed to be the opposite of that -- they describe some process and then receive a government monopoly on its embodiment at the highest level of abstraction the USPTO will allow. Giving that office an incentive to increase the level of abstraction (ie the narrow "System and method for tying shoelaces" vs the broad "system and method for binding two ends of a flexible object") is crazy.

The best short-term solution is to put the USPTO on the hook for all costs related to invalidating bogus patents. We should also demand, as a cost for participating in the TRIPS treaty, that a patent invalidated anywhere is invalidated everywhere, and all costs borne by the agency in whatever jurisdiction granted the bad patent (which by now outnumber good ones.)

Please continue to flog this issue, Matt, and congratulations on your continued success.

Posted by: Timon on April 24, 2007 08:14 PM

Timon - You have a very good point that giving the USPTO an incentive to abstract patents even further isn't a good idea. Maybe I need to rethink item 4...

However, I'd argue that items 2 and 3 are taking what's now a 100% monopoly and loosening it by limiting the grantee's ability to control the licensing process.

As for your proposed solution, don't you think the applicant should share some of the blame/cost with the USPTO?

Posted by: eeyn524 on April 24, 2007 08:49 PM

eeyn,

I think there is an underlying Coase-ian idea operating here that property rights lead to structural efficiencies that commons can't match. This is understandable but mistaken. If the market is the model we should be setting the cost and terms of the patent such that about half of innovators bother to patent their ideas (ie Edison), and half don't (as James Watt didn't.) This would represent a real market-clearing price for the monopoly, and would set the optimum balance between disclosure v trade secrets.

That said, a market in ideas is as unnecessary as a market in air, and it is psychotically evil to stop people saving their own lives because you profess to own the idea of a certain molecule, and have the political power to prove it. (In global terms, we are like fourth graders patenting long division and charging the third graders a license to learn it.) The best solution to the patent problem is to stop granting patents on software and genes, and to simply abandon the vicarious or accidental infringement rules. You should only be liable for violating a patent if you knowingly violate it, not if you bark up a tree that some corporate lawyer has already marked. There should also be compulsory licensing, maybe along the lines you suggest, for medical inventions that would grant leeway to people who have no money. There should be a policy whereby any company or individual who participates in any standards-setting body waives all patent rights in the specifications that body implements. There are other fixes but these are the obvious ones. As a practical matter the best we can probably hope for is that other nations will decline to repeat our mistakes, and the competitive disadvantage of our system will eventually force reform.

Posted by: Timon on April 24, 2007 09:41 PM

Thanks
Best regards
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