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Finally got to watch the actual interview. Was really good.
For a lay audience presentation, by someone this young, I thought this was surprisingly cogent and articulate.
Of course one can always quibble over some details in a question-answer presentation that is inherently oversimplified.
[Folks who think no changes are ever needed in patent law should imagine what the backlog would be like if we went back to the era in which applications could have hundreds of free independent claims, unlimited numbers of free amendments for as many years as you wanted to delay issuance, and attorneys had to sign all the inked drawings in ink. ]
It’s easy to appear cogent to softball questions but as others have noted, his script is replete with fallacies.
And for Malcolm’s benefit, yes the billion dollar figure has been proven wrong (see the work of Katznelson).
Other fallacies on his script include an untoward bias towards the infringer and against the patent holder (who happens to be a non-practicing entity).
It’s more than just a little embarrassing how one sided the prep here is (and of course MaxDrei pipes in and completely misses about ‘balance’ – not unexpected mind you)
Of course, there are plus’s to be found. But let’s let the bubble crowd pay each other on the back for awhile before we start that discussion.
“And for Malcolm’s benefit, yes the billion dollar figure has been proven wrong (see the work of Katznelson).”
Refresh our memories about the “work of Katznelson” (the chum that was shown to be wildly off in his numbers by D a time or two iirc) and his findings.
Was it the number that was off, or did Katznelson simply snap his fingers and turn 28 billy in “losses” into 28 billy in “gains”? If the number was off, by how much?
Don’t have the link handy at the moment, but the work is published so a skilled searcher such as yourself should be able I find it easy enough.
How about asking:
Why do so many patent owners or inventors choose to assign their patents to NPEs or Patent Trolls?
Why would an NPE file a complaint before sending any notice letter?
The answer: The declaratory judgement action standard went from one extreme to another pre and post MedImmune.
The patent system/laws should encourage patentees and alleged infringers to talk before heading to court. Modifying the DJ standard to create a safe harbor for negotiations would alleviate a lot of problems.
Also, we have already had massive reforms:
Plus, all the post grant proceedings now available to “knock out” bad patents.
We need to be very careful about introducing more reforms without understanding the reforms already implemented.
Finally, “loser pays” (e.g, the other sides costs) could help but shouldn’t be limited to patent cases but all litigation including torts (a compromise is loser pays its litigation costs to other side in case large asymmetry).
NWPA: Should you be allowed to print anything you want
More precisely, the question is: should anybody, regardless of their skill, be allowed to legally manufacture and use a patented composition or a machine for their own use simply because “it’s easy to do it” ?
I think we’ve already had occasion to answer this question, a long time ago, long before computers and 3-D printers, and the answer to the question is: no. That’s patent infringement.
The issue you seem to get hung up on, NWPA, is how to prevent people from doing this. Personally I can’t think of a worse solution to the problem than trying to warp our already disfigured patent system to such an extreme that it covers not just patented objects but also data — i.e., information — descriptive of the shapes and configurations of those patented objects.
“I think we’ve already had occasion to answer this question, a long time ago, long before computers and 3-D printers, and the answer to the question is: no. That’s patent infringement.
The issue you seem to get hung up on, NWPA, is how to prevent people from doing this. ”
Idk bro, I think he’s also likely concerned about rampant infringement becoming the social norm (like in music downloading) and the eventual effect that will have on the legal landscape.
Entitlement programs from the gilded/iron age don’t always survive for thousands of years.
MM, on overall social/political issues I’d like to have your perspective on the following article I just saw today (and the subject of which I’d noticed a ridiculous amount irl of late in the South). But specifically, I’d like to know if, being as liberal as you appear to be, is there some problems with blue state policies actually harming the poor that they’re supposed to be helpipng as mentioned towards the end of the article? In your opinion that is.
link to forbes.com
Can we be told when the interview took place?
I ask because Mr Pasky says at one point that Google came up with a useful search tool in 2012 “last year”.
Pasky speaks like those practitioners over here who spend half their time acting for patent owners and the other half for accused infringers. They treasure the patent system, recognise its vital function, and for that very reason are distressed when it malfunctions.
What would he say now, in 2015? Is there not good reason for optimism, compared with 2013 when he was interviewed?
One reason for optimism now is that patent lawyers overall are surely more educated about the peculiar issues presented by patents that impact information and information-processing.
A reason for continued vigilence is that the same people who cheered on or actively facilitated the explosion in software patent acquisition and litigation are still out there railing against the tide as if the recent legislative and judicial smackdowns are some kind of aberration rather than a predictable evolution.
link to todayinsci.com
In the Link, see Quote #1. The mindset of an ordinary middle-aged attorney is not so different from that of an ordinary middle-aged scientist.The railers are not going to stop, just dwindle in numbers, over the years.
But those who are more enlightened change their mindset when the information set changes:
link to quoteinvestigator.com
I see that we don’t have any Guardians if the Galaxy fans here…
Pasky’s solutions to the problem of software patents look like short-term band-aids to me.
“Better examination” of patents on logic, information and information-processing ignores the fact that our patent system was not designed to examine, much less promote, such “innovations.”
We can address this issue now, cut the cord and devote serious attention to coming up with a viable alternative (assuming we collectively can convince ourselves that one exists). Or we can keep kicking the can down the road and begging the Supreme Court to step in every couple years as we’ve been doing lately.
“the fact that our patent system was not designed to examine, much less promote, such “innovations.””
Please substantiate your claim of this so-called fact.
Easy enough to cite the constitution itself and the first patent acts as well as the 1952 act specifically remaining silent on that subject matter as a category.
My reply to 6 was somehow offensive…?
Um, ok, I guess…
There is not the slightest hint in the 1952 patent act or any legislative history prior to that act that anybody believed that “innovations in logic” or “new useful information” would be promoted by allowing people to obtain patents — as we understand them — on such subject matter as opposed to, say, patents on new machines for processing cotton or methods of preparing longer-lasting filaments for electric lights.
At the same time, there is no doubt that innovations in logic and the generation of new, useful facts were always, always, always understood to be valuable and hugely important — indeed essential — to human “progress”. The strange belief that the patent system was appropriate for directly protecting and promoting such innovations is a recent one. It’s also an idea that was given the judicial stamp of approval without much, if any, input from the non-patent community who would inevitably be impacted by that stamp.
Reap the whirlwind. If you have ideas for rebooting the system to accomodate innovations in logic and the protection of new facts and other abstractions, I’m all ears.
Your post provide ZERO substantiation for your so called claim of ‘fact.’
Do you want to try again?
Your post provide ZERO substantiation
You’ll find out otherwise soon enough.
“Finding out soon enough” makes NO SENSE to your lack of providing a substantive backing to your alleged “facts” here and now in this discussion.
Here is “your chance.”
Choosing not to back up what you allege as “fact” is a choice, and that choice reflects on your credibility.
It’s all up to you.
[…] J.Pasky on the Need for Patent Reform […]
At 15 minutes, he identifies the problem: software patents.
Get into chemicals, electronics, circuits — he said correctly that there is no problem.
As to patent “reform” to combat software patents — I think we have had it already. It is called Alice v. CLS Bank.
Take a second listen Ned.
Apply a little critical thinking and dig below the surface.
Then read again In re Orthokinetics, as that was a physical contraption case deeply embedded with the use of functional claim language outside of 112(f) as fully sanctioned by the Act of 1952.
(your supporting “bugaboos” go bye bye)
He repeats the same anti-patent lies that have been widely debunked. $29B for example. In his view, any patent infringement lawsuit is a frivolous “vehicle for profit.”
I’ve got patents pending longer than he’s been an attorney.
I think the part of this that is missing is where did their design come from? I was managing an architect for a medium sized system when he came up with a user interface design suggestion. Another product manager and I looked at each other and tried not to laugh. We asked him where he got the design from. He said, “I just thought of it.” We said would consider booting up Windows and compare that to your design please. He started laughing and said, “I guess I took it from Windows.”
Paul Morinville: I’ve got patents pending longer than he’s been an attorney.
Pasky’s been a patent attorney for 8 years. It’s not like he just got off the boat. He seems very intelligent and well-spoken.
It’s irrelevant attacks like this one, Paul, that just highlight the lack of substantive arguments and an exaggerated sense of entitlement among a certain class of self-described “experts” who are almost invariably well-heeled 50+ year old patent attorneys directly invested in making patent procurement and enforcement as easy and as lucrative as possible.
In five years every new patent attorney will be graduating in an era where some of the “arguments” that were made in defense of, e.g., determine-and-infer, “data structure” and “encylopedia on a computer” claims will be viewed as quaint to say the least. That’s how society — and patent law — evolves.
If you want to dismiss Pasky and people who share his views (there are a lot of us), you better come up with something a lot better than “I’ve been around longer than you.”
He repeats the same anti-patent lies that have been widely debunked. $29B for example.
Pasky expressly stated that the number was “claimed.” You said “lies” plural. What other “lies” did Pasky “repeat”?
Lets start with one lie at a time. Tell me about the $29B number he is using to support his case.
Because you are in his camp, perhaps you know where those numbers came from and you can reproduce them. If you can’t, I understand becasue nobody else can either, and others have shown them not to be true. Perhaps you alternatively can offer some sort of logical support for them.
Why isn’t this an “irrelevant attack”?
It seems like you’re attacking a certain segment of the attorney population with no evidence that this segment actually believes what you attribute their beliefs to be. And you’re also implying that other segments of the attorney population are somehow different than this “older” population, again with no evidence this is true.
Personally, I believe software patents fit within the scheme of the current laws and I believe it would be highly problematic to attempt to “outlaw” software patents. Just trying to define what a “software patent” is, is problematic. Software is in everything. Try to find an “electronic circuit” without software. For instance, I’m working on a case that uses PWM (pulse width modulation). What do you think controls the width of the pulses? A processor programmed — gasp! — with software. And if it’s not done now with “software”, it will be, as system-on-a-chip is the new reality.
Not exactly sure what you mean by an “irrelevant attack.” Are you guys attorneys?
It seems to me that calling out the use of false data to support an argument weakening patent rights is certainly relevant. It is relevant both to this discussion and to the purpose of this blog.
An “irrelevant attack” would be to attack the person who calls out that the data is false.
PatentBob: Just trying to define what a “software patent” is, is problematic.
No, it’s not.
Software is in everything.
t seems like you’re attacking a certain segment of the attorney population with no evidence that this segment actually believes what you attribute their beliefs to be.
Are you asking for evidence that there are wealthy patent attorneys out there who are directly invested in making patents easier to acquire and enforce? If so, that evidence is easy to come by. Let me know if that’s what you’re asking for.
By the way: are you a patent attorney? What’s your net worth and income? Then we can have another data point. Remember: you just asserted here that “software is in everything” and “identifying a software patent is a problem.” I think those are ridiculous assertions, on their face. But you made them.
Your own ridiculous assertions still not some substantiation there, Malcolm.
Now if you want to launch into your denials again about the ubiquity of software and its importance in modern day innovation, that certain group will still welcome you with open arms (you know the challenge, out your money where your mouth is and stop using those innovations that you seek to deny patent protection to).
your denials again about the ubiquity of software and its importance in modern day innovation,
I never denied those things.
Dennis, please do a better job of moderating. And please understand that “moderating” doesn’t mean kneecapping commenters so other commenters “have a chance.”
“I never denied those things”
Playing coy with semantics – what you did deny was the protection to such innovations – does not help your case here. And neither does the rather odd call for help to Prof. Crouch. If by “kneecapping” you mean the attempt to prevent your non-substantive eight year long use of poor rhetorical t001s, then perhaps you should think about different ways of expressing yourself.
One question that I think is relevant is copying. Many software developers use software and seem to believe that anything they use or see is then available to them to use. I think their beliefs are formed based on their ability to program so they have access to the means of production.
But, consider some of the factories in China. I can take almost any Auto-CAD design of a product on the market and find a factory in China that will copy it and send it to me for a very low price. And it isn’t that hard going from the product to the Auto-CAD design. So, we see something that is getting very close to the generation of computer software. I am just merely sending in an Auto-CAD design of a product I want and it is delivered to me. Why shouldn’t I be allowed to do that? Why should I be allowed to take any design and modify it and then send it to China to have it manufactured? The more automated the factories become the more availability there will be to the average person to have products made for them. Should there be any IP in this case? All I am doing is taking what I know and sending some information to China.
As a concrete example image that China sets up a factory for customized blinds were you send in the design and they send you the blinds. Should all patents on blinds then be considered void and null? (And, blinds are pretty complicated believe it or not particularly when they put motors in them.)
I think in 20 years we can expect this type of customized production to be common.
Wouldn’t that be covered by 35 USC 271, “imports into the United States…”??
Sure it would. The point is that should we abolish patent protection for technologies where the means of production is close at hand. And as jesse points out below this is already the case for 3D printing. Should you be allowed to print anything you want?
It’s a reasonable conundrum that reasonable people can differ upon on their answers. Fact is the ease of manufacturing really tears at the heart of the industrial age patent entitlement program where manufacturing was hard.
“Reasonable people can differ upon their answers”
Translation: meh, the law is all relative in your mind make up anything and there is no objective correct view of it – leastwise when 6 is on the short end of the stick.
“leastwise when 6 is on the short end of the stick.”
You have been made aware that I’m being made more or less “wealthy” compared to the majority of people issuing those entitlements correct? How am I possibly on the short end of this stick?
The legal discussion stick, my friend.
Oh, right. The perpetual “legal discussion” that you’re having with yourself in your head that I’m always on the “short end of” while the USSC blesses my “legal” positions time after time.
Sorry, I thought you were talking about something real.
What I talk about IS real.
Have you yet checked out the ethics side of the blog as I suggested to see some of Prof. Hricik’s posts on how often the Supreme Court gets things wrong or is otherwise overridden?
Maybe you want to pay attention to the means to the ends instead of just celebrating the ends that you see?
It isn’t significantly different than using a copier to duplicate pages from a book.
You aren’t supposed to copy the entire book…
You do realize that the test for copyright infringement is not a totality of the work copied, right?
I said significantly different.
And you can get sued for copyright for copying too much.
And generally, copying the whole thing is too much.
The real problem is when multiple people make partial copies and then exchange duplicates for what they didn’t copy.
Libraries pretty much gave up on trying to be the enforcers, though I do remember when access to copiers was limited, and prevented more than 10 pages at a time.
As a software developer I can say that when I see a piece of software do something it is usually true that I could write a piece of software which does the same thing. So for me ( and most developers I think) the inventive part of an application is what the software does rather than the software itself.
What software doesmost broadly of course is transform information. If the information transformation is not new then as a software developer I do not see where the novelty required for a patent comes from.
However when the information transformation is new then a software patent can make sense. (e.g. 4558302 LZW Compression).
Similarly a blind engineer ( i.e. an engineer who works on blinds) has to pick gear sizes and materials and calculate forces so that the blinds will open and close everyday without breaking. Also very satisfying work.
Before he starts, the blind engineer is given a design of some kind, including some parts of the design which are patented, e.g. a specific oval gear shape to use which makes the blind open more smoothly.
Before I start as a software developer I am given a requirement of some kind including parts which may be patented. For example Alice vs CLS described the flow of financial transaction data in a computer system. This specific flow will be implemented by part of the code in the system.
Using the oval gear is a new way of transforming the forces
I know what you mean. There are a lot of software patents that shouldn’t have been issued. No doubt. But, you know there are also a lot of programmers that just lift stuff from other people. It is kind of interesting what you said about being able to do anything you can see. When I started out that wasn’t true. Back in the late 1970’s I was a programmer and people didn’t know how to do stuff without magazine, boards (blogs before the Internet), and books.
3D Printing — you don’t/won’t even need to send it to China
Star Trek replicator, anyone…?
My big box of electrons, protons, and neutrons, anyone…?
NightWriter, seems like what you describe might be more of a copyright (or reform?) than patent argument. Certainly patents as they are can cover the use of such designs and technologies. It’s not clear to us where and how much reverse engineered data should be freely available and when or not, in relation to patent disclosure and meaning as to using what enters the public domain in your comment.
Advancement of the arts includes building on the past and utilizing the legitimately available states of the art. The art of programming requires not having to reinvent everything, or being unduly limited by unknowable and unpredictable legal risk. For software folks patent concern is about basic building blocks, obviousness, adequately specific description, and markets conflated with technologies. Clearly they are not questioning the importance of information processing.
Your example of the Windows UI might be continued to ask where did the Windows design come from?(We aren’t arguing specifically of what you saw).
We do know that many of these things are not as unique as they claim to be.
To be clear we think blatant copying is a very low form of commerce, a poor business choice, and risky business with forces of law necessary to curtail it in existing or reformed views of patent laws. That may be the easy part.
“on their ability to program (type words) so they have access to the means of production.”
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