45 thoughts on “Judge Rader on the Global Role of Intellectual Property Rights

  1. With respect to Japan les we forget they had one very, very important asset . . . . MacArthur. He is the only reason Japan bounced-back so fast. You know a man so efficient that the Democrats had to destroy him. Remember that shoe saleman from Ohio, Truman. The fascist who tried to nationalize the steel industry. What is it with the Democrats. Every time they get in power they want to nationalize something.

  2. “The point is, Japan had nothing after WWII”

    Except people with industrial know how (arguably the most on the planet at the time, second only perhaps to the US, in detroit most specifically), and an economy (shattered though it was) that could withstand inflation that came from their printing $ to cover their debts. And the will to kick things into high gear while being kicked in the pants by McArthur et al. Japanese have always been a motivated people, for whatever the reason. Look at their history.

    Bottom line, patents didn’t pick them up then, and patents aren’t going to pick up Nigeria etc. today.

    Not. Going. To. Happen.

    They need comprehensive changes to their law, and changes to their gov (read get rid of rampant corruption), as well as changes to their society before they can even dream of getting the capital to spur projects that IP MIGHT help.

    Rader insinuating otherwise is hogwash. That is what this discussion is about. Stay on target Luke, or you’re never going to blow up the deathstar.

    By the by, I just saw my buddy swaggering around in Japan not long ago. You want a link to his facebook? If you weren’t such a goob maybe you could swagger a little in Japan too. Maybe even pick up a real girl, gasp :O. I’m not assuring you of that last part, but maybe.

    Upon considering this post, I should have simply said “NO U”.

    “If the government and maybe a few large corporations can legally steal any innovation people create there will be no new companies and jobs and less wealth.”

    NO U.

    “But the larger and more important question is what is best for the United States capitalist system? ”

    NO U.

    “Without the unequivocal right among ALL citizens to patent anything under the sun made by man, America would end up being a bland wasteland devoid of innovative change and independence, much like North Korea.”

    So you just got through saying that inventions will happen anyway, but now without the right to patent anything then America would end up being a bland wasteland devoid of innovatitive change?

    I’m going to go with:

    NO U.

    “So I say to you today, capitalism IS a useful art, perhaps the most useful art there is. ”

    NO U.

    It’s positively amazing how much time one can save with NO U.

  3. Luke summoned the force to write “@NAL Where is your evidence that ip laws are necessary to encourage innovation?

    While it’s true that necessity is the mother of invention that’s not the point. Yes, if people have a need for something to make their life easy or to solve some pressing problem people will invent it, patent system or not.

    But the larger and more important question is what is best for the United States capitalist system? The most successful and useful system for advancing society and our planet in the history of the world!

    If the government and maybe a few large corporations can legally steal any innovation people create there will be no new companies and jobs and less wealth.

    Without the unequivocal right among ALL citizens to patent anything under the sun made by man, America would end up being a bland wasteland devoid of innovative change and independence, much like North Korea.

    So I say to you today, capitalism IS a useful art, perhaps the most useful art there is.

    God Bless the US Patent System and the USA!

  4. “…who share your obsession?”

    Heck sleazebag, you have almost as much of an inflated opinion of yourself as 6. We at least thought you were a little smarter than “atoms fall out of wires” and not half as delusional.

    Apparently not.

  5. “Atoms fall out of wires” 6 said the following

    “He seems to be forgetting a few things that Japan had when they bounced back. 1. Money. 2. Will.”

    The point is, Japan had nothing after WWII. Anything they obtained was through sheer grit, teamwork, and cooperation. People (especially stoopid people like you) didn’t and don’t swagger around with big egos. They didn’t have money until they earned it through concerted efforts at the most efficient manufacturing system the world has known then or since then.

    6, you wouldn’t last a second in Japan.

  6. Grautitously (and honestly), those two other commenters with the most robotic and predictable comments are Malcolm and MaxDrei (sorry Max).

  7. “Japan was economically devastated after WWII. ”

    Ok, so … what does that have to do with what I just said? Nothing. You’re a jacas.

    Here’s a clue, since you have a hard time buying or googling one.

    link to sjsu.edu

    And as to us needing to appreciate him and Newman because they “get” that the patent system provides the incentive to get things done I’ll have to disagree with you since I’m referring to will to get things done besides scrawling down a new idea on a sheet of paper.

    Not to imply that the patent system doesn’t provide incentive, it doesn’t provide the necessary will or money for many 3rd world countries to pick themselves up into being developed. Hck, they get a shtton of IP for free and they can’t even be bothered to implement it. Corruption, greed, poverty, etc. etc. hold them firmly back in all too many cases. And making themselves a patent system isn’t going to change that.

  8. >>Gee, do you think “Ralph Mouthbreather” is >>really sleazebag Mooney

    The MM-trollbot was built with a module for posting under pseudonyms, so it is possible the MM-trollbot posted that.

  9. “When I hear about “new health care technologies,” I think about surgical robots, 3D VR imaging, and a lot of other computerized technologies.”

    When I hear about new health care technologies I think my premium and deductibles are both going up, and they won’t be covered.

  10. Gee, do you think “Ralph Mouthbreather” is really sleazebag Mooney having one of his partisan fits (that curiously seem to go perennially excused – even when referring to sex acts with dead presidents)?

    I sure do.

    How cute

  11. “Great job Obamo–thanks for the change”

    At least all these unemployed people won’t be getting health insurance from the government. By forcing them to buy private insurance, we can ensure that the health insurance companies stay in business, so real American can have the choice they want. Obamo will never take my Medicare away!

    Also, I have a great invention for a method of denying coverage to people who might otherwise get it, thereby reducing risk. It requires a computer and some equations. Where do I file an application? I would like to keep the Feds out of the process, if possible.

  12. Well, Malcolm, that is evidence that we are going to go into another great depression by backing this type of behavior again. This time once it hits the fan, we won’t have $6 trillion dollars to dump into the hole and it is going to be uglier. Great job Obamo–thanks for the change.

    So, you have shown me evidnece why patents are irrelevant as our society is going down the tubes anway.

  13. Gee, this all sounds vaguely familiar:

    link to bloomberg.com

    ——————————
    Banks are typically offering as much as $3 in financing for every $1 of equity investors in leveraged loans contribute, down from $6 to $7 before mid-2007 ….

    The swaps are a type of derivative where a bank passes on returns or losses from a pool of loans to an investor.

    The interest rate that investors are now being charged is usually between 2 percentage points and 2.75 percentage points more than the London interbank offered rate, according to Delman. Three-month Libor, or what banks charge each other for loans in dollars, was set at 0.36 percent yesterday, according to the British Bankers’ Association.

    Derivatives are contracts whose values are tied to assets including stocks, bonds, commodities and currencies, or events such as changes in interest rates or the weather.
    —————————–

  14. >>Our ip laws paint with too broad a brush.

    Another nice sounding generality. Who couldn’t agree with that–me. Try to produce some evidence. Everytime I see some “evidence” it is laughable how bad it is. Often created by one of those wanker professors that want to publish something so they don’t get thrown out or publish something so they can get some research money from an anti-patent corporation.

  15. “When I hear about “new health care technologies,” I think about surgical robots, 3D VR imaging, and a lot of other computerized technologies.”

    I think about sending a patient a copy of his/her prescription, on a time and date of the patient’s choosing, using a remote server.

  16. congress shall have the power to promote…

    Congress does not need to exercise that power and if they do exercise that power they should at least try to determine what the optimal “limited time” is.

    My point is that evidence is lacking as to the need to exercise that power.

    I am not anti-patent per se. I see the need to protect inventions which are costly to develop and bring to market and which are easily copied or reversed engineered, such as pharmaceuticals. They may need additional protection since so much time and money are spent in clinical testing.

    There are however other classes of inventions that may not need such extensive or possibly any protection. Our ip laws paint with too broad a brush.

  17. In fact, I am sure that every single refernece that has been brought up in this blog that presents the proposition that patents do not help innovation has been discredited for many sound reasons. E.g., writer has no experience in innovation and merely makes conclusory statements (for an example of this type of argument please see an MM-trollbot post.)

  18. >>more and more evidence is establishing that >>innovation

    What evidence? From what I’ve seen the “evidence” is complied by people that have no experience with innovation and no experience with patents.

    What about it trollbots, do you have any references?

  19. luke,

    Where do you get “necessary”? Under what context and where in this thread have I said that?

    It seems that your agenda has clouded your ability to understand what the word “promote” means. It does not mean “that lacking ANY other recourse, and only in the most dire of circumstances, evil patents should regrettably be allowed”.

    “necessary” and “need” are red herrings and favorite topics of the anti-patent community. The POWER and RIGHT to have ip laws, which this community disdains, comes directly from the Constitution, the critical basis of our Law (not some communist manifesto). Should I invite JAOI to provide a discourse on the matter?

  20. @NAL

    Where is your evidence that ip laws are necessary to encourage innovation? Where is the evidence that 20 year protection for patents is optimal? Th same goes for copyright term.

    Indeed, more and more evidence is establishing that innovation may not need hefty incentives.

  21. Noise above Law:
    >>While this may only be mere prudence

    Might be that Bilski is still a pending case before the Fed. Cir. The SCOTUS could remand.

    NAL: don’t let the trollbots get you down.

  22. Dear Ken Brooks,

    Please add me to your list of admirers.
    You win the Best Comment Award in my book by addressing dimensions of patents most never see.
    Your comments give more meaning and reason to my many diatribes against the Supreme Court’s eBay decision, Cisco and the fraud perpetrated on the IP community, the Coalition for Patent Fairness and their ilk.

    Not that it’s directly germane, but I’d like to add a comment to extend and perhaps expand the discussion.

    Unchecked, Greed will slowly chip away at our Constitution. I propose something like these two draft Constitution Clarification Amendments:

    1) American public Corporations shall henceforth be required to adjust their priorities aptly as follows:
    Serve their Country First;
    Serve their Customers Second;
    and
    Third, in proportion (to be defined),
    Serve their Employees;
    their Shareholders; and
    their Executives Officer.

    2) All American Officials and Officers of our Courts should be made to take their Oath’s of Office annually, in private while hooked up to a lie detector, and the results published.

  23. I think the judges comments are true and accurate and represent a human advancement positive outlook. Accomplishing these goals may not be as easy due to innovation retartive forces at work in business and government positions. Probably the most innovation retartive force at work is the present patent reform legislation under consideration by the U.S. Congress. It contains nothing that is needed and everything that isn’t needed for progressive patent reform. One of the major factors is inventorship determination methods. Presently much of what is U.S. intellectual material is being claimed as being invented in foreign countries. Due to this, they are essentially stealing the intellectual property by their false claims, thereby retarding innovation and the integrity of their countries financial justice system. Until this barrier is overcome, we cannot have a genuine global integritis patent system. My new patent reform proposals contain the methods of accomplishing these goals. We should unceremoniously dump the present patent reform legislation into the garbage where it belongs. Anti-inventor legislation cannot possibly produce anything except innovation retardation and violation of the civil rights of the inventors and continued slavery. Employers have absolutely right to an employee’s inventions. They are the employee’s intellectual property in accordance with the employee’s civil rights. Required inventor employer/employee partnerships is the only legitimate and fair way to address the situation of invention conception on company time and property. Also proposed legislation that allows stranger companies to steal inventions from inventor’s estates will only cause the inventors to be murdered for their intellectual property.

  24. “new health care technologies, new medicines and communication devices”

    When I hear about “new health care technologies,” I think about surgical robots, 3D VR imaging, and a lot of other computerized technologies. I have similar thoughts about “communication devices.”

  25. To “atoms fall out of wires” 6:

    Japan was economically devastated after WWII. You don’t know your own job, I guess its no surprise that you don’t know history (or physics for that matter).

  26. Not withstanding the aspersions of “regular observer”, who apparently does not mind the lack of deep insights from the likes of MM and 6, yet feels compelled to comment on my posting (coincidence?), Andrew, please consider:

    You are correct that the list of items starting at 2:17 does not include many distinct categories of the arts that patent protection extends to. Ask yourself, what is the commonality of those items that were mentioned? At the least, they all have to do with physical items that could be, without controversy, considered patentable subject matter no matter which way the Supreme Court rules on Bilski. Clearly, the most contentious areas, those that I pointed out, are starkly missing. While this may only be mere prudence, it also may indicate the particular leanings of this judge. Since Malcolm often feels free to provide sound-bites with partial understanding of the context, his missing this observation was what I was pointing out.

  27. Ken,

    I’ve read the very passage you mention in Graham, and it is very disturbing for a different reason; it espouses the “rhetorical nonsense” that the Patent and Copyright Clause imposes a “constitutional standard” for patentability, whatever that “undefined” standard might be. In fact, and contrary to what Graham seems to suggest, the only explicit “limitation” expressed in this Clause is that the exclusive rights granted are for “limited times” (although some may wonder whether this applies to copyright in view of what Congress has enacted and what SCOTUS has put its stamp of approval on).

    Admittedly, this Clause would likely preclude Congress from allowing patents on subject matter that wasn’t at least “novel.” That’s why England enacted the Statute of Monopolies to prevent what were, in essence, “fiefdoms” on the sale of commodities such as salt. But much of what is said in Graham in support of this supposed “constitutional standard” for patentability won’t stand up under scrutiny. For example, other than constantly pointing to Thomas Jefferson, Graham makes no mention as to who the “other Americans” (with the possible exception of James Madison) were who “had an instinctive adversion to monopolies.” What about the views of the other signers of the Constitution, including those who were Federalists?

    Again, other then novelty, Congress is not obligated by the Patent and Copyright Clause to impose any other “constitutional standard” for patentability. That they have done so with 35 USC 103 (which admittedly codified an additional requirement imposed by SCOTUS, not Congress) is certainly within Congress’ consitutional perogative.

  28. “You don’t want a patent to be used as a weapon for political agenda. ”

    That assertion is not only unwise, but dangerous as well. Let’s take the Maxim Machine Gun technology. The weapon eventually evolved into the Vickers and Maschinengewehr 08. The manufacturers paid a license fee and royalty to Maxim, a British subject, for the patent rights. However, it appears that there was nothing in the license that precluded use of the technology against British troops. Otherwise, there would have been a lawsuit after the war for patent infringement. As a result, technology invented by the British and improperly licensed without consideration of political issues resulted in killing thousands of British soldiers. That may be alright in a country of subjects, but a country of citizens, such as the U.S., we have a responsibility to ensure that our economic entities behave themselves and are not allowed to use their monopoplies to our detriment.

  29. The monoply granted by a patent is for one thing only . . . the advancement of the useful arts. To grant the monopoly for any other reason is improper. In fact Graham v. Deere makes clear that for Congress to grant a monopoly for anything other than the advancement of the useful arts is Ultra Vires. Read Graham v. Deere carefully. You will see. This is what is wrong with the copyright extensions. The Copyright power is being used in a fashion similar to the Letters Patent created before the Statute of Monopolies was enacted.

  30. >>He never successfully commercialized it in the >>South; yet, many Southerners used the invention >>without permission. Imagine what would have >>been the result had Mr. Whitney obtained an >>injunction against the Southerners precluding >>the use of his invention.

    This is the kind of thinking that leads to anti-trust lawsuits. What you want is for people to invent and want to cash in on their invention. Thus, improve the lives of people in general.

    You don’t want a patent to be used as a weapon for political agenda.

  31. >> 2. Will.

    6-trollbot, the incentive is the patent which provides the will to get things done.

    We should all be very thankful for Rader and Newman who both get how the patent system is used to give people the motivation to invent.

    Capital will cease to flow to start-ups without intellectual property protection.

  32. I don’t see the gift, Noise. Judge Rader mentions, “agricultural technologies, new health care technologies, new medicines and communication devices, new transportation devices”. Yes, he said nothing of business methods and software patents, but how is that “telling”?

    By this logic, Judge Rader also slighted solar power technologies, wind turbine technologies, all non-communication IT, industrial chemical innovations…. Well, you get the idea. I hope, anyway.

  33. “they will find that the natural intellect of their people is harnessed…”

    Right Rader. I’m sure all those people in Nigeria carry clay jars of water will come up with some astounding innovations in the prevention of dropping clay jars art.

    He seems to be forgetting a few things that Japan had when they bounced back. 1. Money. 2. Will.

    I was going to post an RE to his vid, but I don’t even know, that is embarrassing. It must have been for the masses and CEO’s.

  34. “Is there anything wrong with an inventor who patents an idea that the inventor believes should never be commercialized, but given away?”

    Why should he go to the time and expense of patenting it? There are many different venues in which he can simply publish it.

  35. Nice one, KB. I’ll have to read that again tomorrow it was so good. I haven’t watched the video yet, so I can’t characterize what Rader said, but what you said is gold.

  36. Judge Rader’s opening statement demonstrates a fundamental flaw in his ideology. He states that intellectual property rights are important because they protect the most valuable asset of any corporation, University or any other important economic entity. There is absolutely nothing in Article I, section 8, clause 8 that has to do with economics.

    What is even more disturbing is that Judge Rader completely ignores the economic and political importance of the rights of the only individuals allowed by the Constitution to acquire two of those intellectual property rights: inventors and authors. Clearly the Constitution is unambiguous that natural persons are the only parties allowed to benefit from the Intellectual Property Clause. This becomes all the more important as artificial intelligence progresses.

    However, given the remarks by Judge Rader I suppose there will be someday soon when one of the courts write-out the Constitution requirement that only natural persons can develop patentable ideas and copyrightable material. Then there is also the implicit denigration of the advancement of human knowledge without economic gain. Is there anything amiss when an individual seeks nothing more than to teach the world about a novel idea using the patent process and does not want personal or societal economic benefit from the idea? The story of Ely Whitney’s cotton gin is an interesting example. He never successfully commercialized it in the South; yet, many Southerners used the invention without permission. Imagine what would have been the result had Mr. Whitney obtained an injunction against the Southerners precluding the use of his invention. The possible motivation could be that he didn’t want the economic system of the South to thrive. An economic system of the north based upon wage labor might not be so inimical to Mr. Whitney. Were Mr. Whitney to have successfully stopped Southerners from using the cotton gin, there is a good chance that the Civil War would have been a great deal shorter and less bloody, because the coffers of the Confederacy would not have been as full. Then again if Mr. Whitney did undertake such a task today, he might very well have been called a troll.

    Assume an inventor has not political or economic aspirations. Is there anything wrong with an inventor who patents an idea that the inventor believes should never be commercialized, but given away? Is there any denigration for such an individual to punish an economic entity for attempting to do so by way of an injuction?

    I say that there are many ways in which intellectual property can be utilized separate and apart from economic gain. However, recognizing such instances might very well prove too burdensome for the present economic climate, because the individual would, again, assume a place of importance in this society.

  37. “…Certainly if I were a business that survived on its patents for methods of “making deals” on the Internet (WOW!!!!) or “generating profit” with a computer (OMIGOD!!!) I might be concerned that I’d have to find another line of work to line my pockets (maybe selling swampland to senile people on cable TV). But nobody needs such patents. Our economy certainly doesn’t need them. ..”

    sleazebag Mooney never gets tired of his own puke-eriffic garbage.

  38. I think Malcolm misses the gift. Isn’t it telling how business and software (per se) were left out of the list of valuable IP contributions starting at 2:17…?

  39. “He senses that we are in a pivotal moment of economic history with respect to patent protection (FWIW, I agree).”

    For businesses who rely on patent prosecution, every moment of economic history with respect to patent protection is always “pivotal”.

    Certainly if I were a business that survived on its patents for methods of “making deals” on the Internet (WOW!!!!) or “generating profit” with a computer (OMIGOD!!!) I might be concerned that I’d have to find another line of work to line my pockets (maybe selling swampland to senile people on cable TV). But nobody needs such patents. Our economy certainly doesn’t need them. In fact, the encouragement of such innovation has contributed to the ruining of America’s economy.

    Does Randy understand this? Based on some comments in his decisions, I think he places too much trust in his fellow human beings to do the right thing.

  40. I’ll bet Judge Rader is very eagerly awaiting becoming Chief Judge Rader. He senses that we are in a pivotal moment of economic history with respect to patent protection (FWIW, I agree). I expect that he will be very outspoken as the chief when his time comes next year.

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