Thursday, January 31, 2013

Congress - Taking Down America, One Law at a Time

Occasionally, as the elder guy in my group, I get to go to meetings that aren't related directly to the current crop of problems and products that are busted.  Today, I got to attend a one hour briefing on a new law, a total inversion/rewrite of US Patent Law, called the America Invents Act of 2011, also known as the Leahy-Smith America Invents Act.  I only have one patent to my name, so it's not like I'm a regular fire hose blaster of the system, but I am familiar with the old patent system.

The AIA overturns the system at the core of American patent law.  Until now (well, until March of this year), a patent always was granted to the inventor who could prove they were the first to invent something.  Because of this, engineers and scientists always worked in bound notebooks, so that the pages are in date order and new pages couldn't be inserted into the book.  Many of you have seen and used these books.  If two parties claimed to invent something at the same time, the one who could show a dated document proving they invented it first were granted the patent. 

What will replace it is a first to file system.  This means that if you invent the next great whatever tomorrow, but don't get around to filing patent papers until next year, and someone else stumbles across the same idea in a few months but files faster, they get the patent.  Much of the rest of the world uses a first to file system, and I'm sure part of the justification here was to make us more like the much-adored Euro-weenies that they're always trying to compare us to. Naturally, being lawyers, they wrote a bunch of unclear stuff into it, and there's all sorts of exceptions and "loopholes" - intended and otherwise.

Our corporate attorneys said the law amounts to a "patent lawyers full employment act". 

What do I make of it?  Hard to say.  I need to do some more reading.  A couple of quick thoughts are that (1) I'm really skeptical of any law that leads to a "... lawyers full employment act" of any flavor lawyer (ewww....) and (2) there is some thought in the hi-tech community that patents aren't worth the cost and effort.  Small nimble companies innovate something and get it on the market.  If the idea is a winner, they sell a bunch and innovate something else, so that when the inevitable copies show up, they've made the money on the product, drop their price, and move on to the next innovative product.  If you have a patent, it doesn't do anything for you unless you sue for damages, and that can run on for a long time, and cost a lot of money.  Big companies love Intellectual Property and guard it jealously.  Smaller companies are taking a different cost/benefit view on patents.


  1. My opinion - the idea of a patent is an abomination. It is a grant of monopoly by the state. You know, the same outfit otherwise declaring monopolies unlawful. A patent is a celebration of statism.

    I recognize this may be difficult to accept by some - but - the concept of intellectual property is well, anti-intellectual. In your head it belongs to you, released to the marketplace it should be freely available for others to improve upon.

    Imagine the potential for improvements if mickeysoft actually had to produce something that had true value - not a value enforced by patent/copyright. Or if others - would be competitors did not need to suck up to the holders of guvmint grants.

  2. Large companies with armies of lawyers game the system, taking what they want and either settling out of court or tying it up in court for years, and the little guy, who can't afford $500 an hour legal representation, is left out in the cold.

  3. Bigger picture first -the essence of gummint is anti-liberty, anti-freedom; it is coercion by threat of violence to property or person ultimately depending on violence.

    Gummint is sold to us in the guise of doing that which we are unable to do for ourselves. A cornucopia of benevolence. Which to any thinking person utter BS. Gummint owns nothing produces nothing has no wealth beyond that which is stolen from others.
    It is the epitome of parasitism.

    So-called intellectual property rights (IPRs) are a THEFT from others – it pre-empts the ability to realize a vision, to act upon ones’ initiative, to innovate, to use any means/product/device to the best of ones’ ability.
    IPRs then are an abrogation of natural rights – a corruption – creating a special class – as with “civil rights” &c. IPRs do not, cannot exist outside of gummint, and depend on a large central gummint for existence and enforcement. Openly communist states have no need for IPRs – everything belongs to the state.

    The meaning of natural rights is adequately expressed here:
    “Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add 'within the limits of the law' because law is often but the tyrant's will, and always so when it violates the rights of the individual.”
    Thomas Jefferson

    IPRs as you have noted give rise to a parasitical class as well – the attorneys. Again, another protected class – operating solely under gummint grant of monopoly. Layer upon layer of theft and coercion.

    Smaller picture – IPRs deny to a person the right to realize ones’ potential in creativity and industry – with IPRs one must always look over ones’ shoulder fearing the spectre of infringement. And, infringement is a curious, ephemeral sort of thing – much depends on viewpoint. So a great deal of effort is often expended in infringement avoidance.

    Is it any wonder that corporations become monoliths based largely on their ability to exclude or severely limit competition, solely through IPRs? Consider those corporations feverishly working to gain IPRs on all plant life – on DNA – on store design – on a bicycle color! One can see that absent IPRs businesses would likely be much smaller, less centralized – and better innovators.

    I believe that individuals would be far better off without IPRs. Yes, some without a grant of monopoly would be unable to block the innovation of others – that’s a good thing.

    Itor (again)

    See also:

    1. Itor, my friend, you're being a fundamentalist libertarian again: if it's not pure 100% libertarianism, it's dictatorship.

      IPRs are not theft. They do not pre-empts the ability to realize a vision, to act upon ones’ initiative, to innovate, to use any means/product/device to the best of ones’ ability. They prevent you from selling someone else' work as your own. If you want to copy a patented mechanism and use it for yourself, AFAIK you can do so. In the unlikely event the patent owner even heard of it, they would never win a suit against you. If you're not selling it, there are no financial damages. The courts have been pretty clear that damages must be proven - according to the engineering magazines I read.

      In practice, I've never seen it work that: Smaller picture – IPRs deny to a person the right to realize ones’ potential in creativity and industry – with IPRs one must always look over ones’ shoulder fearing the spectre of infringement. ... So a great deal of effort is often expended in infringement avoidance.

      In practice, we design a solution to the problem we're working on and the topic only comes up when someone does something no one has heard of before. A department full of engineers has a pretty good knowledge of what's out there and what the usual solutions are.

      I'm aware of how, in some high-stakes incidences (AMI BIOS in the '80s comes to mind), great pains were taken to make sure a group was kept from seeing any documentation that might be interpreted as having been used to copy someone else' IP, but I've never seen it in any company I've worked for and I've never met anyone who talked about working in such an environment.

      It's true in the aggregate that innovation gets harder as the number of patents goes up. There's less likelihood of thinking of something no one has thought of before. Are there horror stories? Of course. There isn't an agency or regulation set that doesn't have problems. There are also stories where the mega-corporation gets sued by the little guy and David beats Goliath.

      Your point misses that side of IP law entirely. If a small company comes up with some big idea, the IP law protects them from the big company that would just steal the idea, squash the little guy, and run with it. I've seen a small researcher hold off Hewlett Packard (when they were way more than they are today) and all the other semiconductor manufacturers for most of the 20 year life of his patent. Eventually, he started allowing others to sell the technology, too.

      You paint it as absolutely bad. I disagree. It has its good points and its bad points, but on balance, I think it's better for society than not having patents. Not everyone is 100% ethical. Some laws are good.

  4. Fundamentalist libertarian? YOU BET! Less than TJ's freedom = tyranny? YES.

    "Your point misses that side of IP law entirely"

    No. Well, maybe - my point is thus - by use of any government grant - especially monopoly power - you are inextricably bound to that gummint and support of same. It's The Ring - don't you see?

    Certainly there are winners - the patent/copyright holders - that is what supports the system of grants - winners - and those who would be same.

    Surely it is obvious - that since country A has laws that country XYZ won't enforce - why then we must empower an extranational entity to enforce our laws?

    "Probably all laws are useless. For good men do not want them and bad men are made no better by them"
    some Roman dood


  5. And, the idea that "some laws are good" - I understand that to refer to the laws of men, or even to stretch quite a bit, those supporters of present and past administrations.

    Laws require a maker and administrator, in other words a State.
    An excellent essay on state and man - perhaps you've seen it?


    1. I think the quote you had from Roman Dood was Epictetus, whom I quoted a few weeks ago. I get it. Pardon if I get all Christian on you, but the only thing that changes people in the way you refer is evangelism, which works from inside the person. America was founded to be a nation under God. As one "founder dood" said, "Our constitution will work for a good and moral people; it is wholly unsuitable for governing any other".

      One of the side-effects of being an engineer is that I need to work in reality. Reality doesn't care if I think my design is elegant or beautiful, it's going to do what physics demands it do. In this case, the reality is that some people will steal others' property and claim it as their own. If you concede that ideas are the property of the person who comes up with them, and who first gives physical form to those ideas, then why is taking those ideas not theft? It seems to flow perfectly into the philosophy of liberty: we have a right to ourselves, and our property. Why are our ideas not part of ourselves; why are they not our property?

      We either take the thief on by ourselves - reread "Why The Gun is Civilization" if you must - or use a legal system. If someone violates the social contract and steals your property, do you think they'll respect that social contract enough to just give it back and stop? I think a legal system has a better chance of working.

  6. No pardon needed!

    "If you concede that ideas are the property of the person who comes up with them"


    Acknowledged and agreed, as in In your head it belongs to you, released to the marketplace it should be freely available for others to improve upon.

    It does not follow that:

    "...who first gives physical form to those ideas, then why is taking those ideas not theft"

    So - use of someones' idea is theft - yes/no?
    If it is then Every Day Every Time we use someones' idea - you are committing theft - yes/no?

    Or, is the "theft" merely occuring because A Grant of Gummint Monoply Has Been Violated? Without said grant no harm, no foul?
    And if YES, a theft has occurred, does it not occur after the magical 17 years? Or WIHOUT physical form, yet monopoly granted, no theft if used by another?

    It is one, or the other. It cannot be both. I do not inhabit the world where two ideas each contradicting the other are equally valid. It is a physical impossibility for such to occur.That would be a world of randomness, of no natural order, of no physical laws - such would be the antithesis of engineering - no?

    Strangely, the Bible is entirely silent on the concept of IPRs.

    your friend,

    1. So - use of someones' idea is theft - yes/no? I don't think that's amenable to a simple yes/no answer. If they say it's theft, yes it is. Patenting something is saying they want to keep ownership - that anyone else using it has stolen it.

      Let me speculate that at some point, the technology for making arrows and spears was as rare and advanced as making a semiconductor wafer today - say 10,000 years ago. Today, everyone who wants to know how to make them can. At some point, every idea works its way into the vast "public domain" that people use everyday. Nobody has a patent on the basic idea of a shoe - although I'm sure some company has a patent on some whiz-bang athletic shoe feature.

      Maybe it's reasonable to say that if you know whose idea it is, and they declared it was their property alone and no one else could profit from it (by patenting), then violating those terms constitutes theft. I'm saying the person (and "person" could be a corporation) who spent the time, money, blood sweat and tears to develop that idea owns the idea and decides what to do with it. If they choose to give it away, fine. If not, we should honor that request. If I understand your point, you're saying once they decide to commercialize their idea, they give up ownership. If that's the case, why spend the effort to develop the idea?

      Let's say my eyeglasses are patented. I'm using someone's idea, but I bought them so it's not theft. Let's say I like them so much that I analyze the basic design they use and figure out to grind make myself another pair. Is that theft of their idea? I don't think so. If I read their patents to figure out how to make them, it is theft but not damaging to the patent holder. Finally, if I sell them under as my product, that's theft and damaging.