tag:blogger.com,1999:blog-177378872024-03-08T02:25:52.133-08:00Right to CreateExercising the fundamental human right to invent new things and speaking out against the powers that restrain it.Jackson Lenfordhttp://www.blogger.com/profile/16064191516786486320noreply@blogger.comBlogger145125tag:blogger.com,1999:blog-17737887.post-1149869846063772252006-06-09T09:11:00.000-07:002006-06-09T09:17:40.130-07:00Ridiculous Patent: Simple Network Protocol<small><i>Note: this was originally to be posted 2 days ago, but blogger.com has been pretty much offline since Wednesday. The Lesson in all this: if you are going to start a blog, just shell out the $5/mo that it costs to get a shared hosting account with a provider of your choice and use WordPress.</i></small><br /><br />Net2Phone, a Voice-Over-IP (VOIP) company that was largely unsuccessful in the marketplace has now turned to the tried-and-true strategy of suing its successful competitors with its <a href="http://blogs.zdnet.com/ip-telephony/index.php?p=1122">overly-broad and extremely obvious patents</a>. It's first victim is Skype.<br /><br />As Tim Lee over at TechLiberation <a href="http://www.techliberation.com/archives/039401.php">says</a>,<blockquote>Where to begin? This describes an absolutely pedestrian networking protocol. There's nothing remotely novel or non-obvious about two computers communicating directly with each other without using a server. I don't even understand what the "invention" is supposed to be. If you asked a random CS major how to implement a peer-to-peer network application, he'd probably come up with a description like this in about 10 minutes.<br /><br />Some people seem to think that these kinds of bad software patents are anomalies--that there are good ones as well, and that we ought not to throw the baby out with the bath water. Yet I've seen news accounts of more than a dozen examples of bogus patent suits in recent months, but I have yet to see an example of a legitimate software patent. There's an awful lot of bath water here, and I'm having trouble seeing the baby.</blockquote>He's right. If there is a baby in there, it long ago sunk beneath the murky surface, out of sight and out of breath. Drowned, if you will, by a sea of junk patents handed out willy-nilly by the patent office, who were pursued relentlessly by patent lawyers, patent trolls, and failed companies like Net2Phone and <a href="http://righttocreate.blogspot.com/2006/04/man-who-invented-wireless-email.html">NTP</a>.Jackson Lenfordhttp://www.blogger.com/profile/16064191516786486320noreply@blogger.com7tag:blogger.com,1999:blog-17737887.post-1149530352922851572006-06-05T10:54:00.000-07:002006-06-05T10:59:13.423-07:00Reforming Software PatentsSome interesting notes from <a href="http://business.newsforge.com/article.pl?sid=06/06/02/1451203&from=rss">Joe Barr</a> via <a href="http://infringement.blogs.com/philip_brooks_patent_infr/2006/06/software_patent.html">Philip Brooks</a>, quoting Dan Ravicher (whew!):<blockquote>Dan Ravicher of the Public Patent Foundation talked about what's wrong with our patent system, and how difficult it will be to ever change it. It seems that at one time, the PTO had their heads screwed on right and rejected purely software patent applications as being "not suitable material" for patents.<br /><br />Two key things got the PTO off-track and us into this mess. First came the formation of a special court to hear patent cases, created by an act of Congress in 1982. The judges of the new court were not chosen from the ranks of existing judges, but from aides to the Congresscritters who created it, thus guaranteeing that it would always rule on the side of those who had lobbied for its creation and who always want more and stronger patent law.<br /><br />The second was the State Street decision, which once and for all settled the question of whether pure software patents should be granted. That ruling is responsible for the boom in software patents in the past few years.<br /><br />According to Ravicher, there are three major blocks to patent reform:<ul><li>Pharmaceutical firms</li><li>Patent law makers (PTO, Federal Circuit Court, Congress)</li><li>Patent lawyers</li></ul><i><b>How broken is the patent system?</b></i> Well, look at it this way. Patents are weapons. <i><b>If you are hit with a patent infringement suit, it will cost you between 2 and 4 million dollars to defend against it. Even if you win the suit, you're out that cost.</b></i></blockquote>Jackson Lenfordhttp://www.blogger.com/profile/16064191516786486320noreply@blogger.com2tag:blogger.com,1999:blog-17737887.post-1149022621995834412006-05-30T12:55:00.000-07:002006-05-30T14:04:42.993-07:00Owning the Idea of Tree Frog VenomSolveig Singleton <a href="http://weblog.ipcentral.info/archives/2006/05/biopiracywhose.html">accidentally makes a very strong argument against patent rights</a> in an article critical of <a href="http://www.nytimes.com/2006/05/30/business/worldbusiness/30frogs.html?_r=1&oref=slogin">actions taken by the Brazilian government</a> to protect the knowledge of indigenous tribes and their discoveries of the many uses of tree frog poisons:<blockquote>But a claim that indigenous people's or their representative governments "own" the venom of a tree frog, medicinal or otherwise, simply by virtue of having discovered it...? Well, it sounds like patenting a law of nature to me.</blockquote>To which we say, "exactly." All inventions <i>are</i> discoveries. Does the act of discovering a new fact, idea, or combination of components cause the discoverer to own that fact, idea, or combination, and give them the right to exclude all others from practicing any similar idea? Does it give the holder of patents covering these ideas the right to a complete monopoly over entire industrial sub-sectors? According to our patent system, yes and yes.<br /><br />Solveig continues:<blockquote>Would these same discoverers share the risk and blame if the product were somewhere downstream, found to cause birth defects or other harm?</blockquote>Would the "discoverers" of wireless email (NTP) share the risk and blame if the <a href="http://righttocreate.blogspot.com/2006/04/man-who-invented-wireless-email.html">BlackBerry network went down</a>, or if BlackBerrys were found to cause birth defects or other harm? The answer, of course, is no. Patent trolls are completely decoupled from any responsibility whatsoever, other than the duty they have to spend money on lawyers and extort outrageous fees from 'infringers' through abuse of our legal system. I'm not sure why Solveig brings this point up, unless she's of the same opinion that we are -- namely, that any system which assigns exclusive ownership of discoveries and ideas to only one party (such as our patent system) is inherently absurd. She continues in this vein:<blockquote>Would they also desire to share in the profits from sales of coffee, tea, and chocolate, claiming to have discovered their property of tastiness? What about the properties of coca leaves and opium poppies? Would they like to share in the profits from the development of those products into painkillers? Would they also like to share in the profits from the sales of heroin and cocaine? What about crack?</blockquote>Of course, maybe Ms. Singleton hasn't heard of <a href="http://righttocreate.blogspot.com/2005/11/us-gets-taste-of-own-patent-medicine.html">Peruvian patents on potatoes </a>or <a href="http://righttocreate.blogspot.com/2006/03/ridiculous-patent-rice.html">Indian patents on basmati rice</a>? Or perhaps she hasn't examined the tags of just about any plant, shrub, or tree purchased at a nursery in this country lately, which warn the purchaser that breeding or germinating the plant is in strict violation of the <a href="http://righttocreate.blogspot.com/2005/10/why-intellectual-property-is-misnomer.html">"intellectual property rights"</a> of the grower? Surely Ms. Singleton must be aware of the many 'rights' that companies such as Monsanto exercise, such as the <a href="http://www.organicconsumers.org/ge/122602_genetically_engineered.cfm">right to sue farmers when Monsanto's seeds blow into their fields</a>.<br /><br />But the point is this: if patents give exclusive property rights to discoverers of new medicines and technologies, what argument could there possibly be against giving those same rights to the discoverers of tree frog venom? In both cases, some labor and inventiveness was spent to make the discovery. In both cases, something new and innovative resulted.<br /><br />Perhaps the distinction is that the tribes in the Brazilian Rain Forest didn't know about the patent system when they made their discovery, and therefore didn't anticipate receiving such rights? But then, whoops! -- that would be an admission that discoveries and invention can occur <i>without</i> a patent system in place.<br /><br />Or maybe the tribes don't deserve this economic benefit because they are primitive, and only 1st world discoverers (i.e., ones that are literate and that wear lab coats instead of loin clothes) deserve patent protection? But then, whoops! -- we shouldn't be foisting strong patent protection systems upon the third world and claiming that this will benefit those countries when the truth is that it mostly benefits us and our large, corporate patent-holding interests.<br /><br />Ms. Singleton concludes:<blockquote>Leave it to some of the loudest critics of patents to come up with the broadest theory of ownership yet, most resembling a feudal entitlement.</blockquote>Wrong, Ms. Singleton. It was proponents of "strong" patent "rights" who have created a system in which such absurdities abound. And it doesn't appear, from the NYTimes article, that the 'loudest critics of patents' are the ones coming up with this tree frog poison protectionist scheme. On the contrary, it was Tribal Chief Fernando Katukina, who appears to be using the simple self-interest of his tribe as his motivator. He should at least be commended for his cleverness in exposing patent systems for what they really are: an artificial scheme to take wealth from one party and give it arbitrarily to another.<br /><br />All this complaining by <a href="http://righttocreate.blogspot.com/2005/10/intellectual-property-monopoly-regime.html">IP-maximalists</a> when foreign nations figure out how to use our patent regime against itself only illustrates the true motives of creating these corrupt systems in the first place: to fortify exactly those feudal and aristocratic societies which Ms. Singleton claims to oppose, where status and wealth is determined only be which patent-owning 'family' you belong to.Jackson Lenfordhttp://www.blogger.com/profile/16064191516786486320noreply@blogger.com5tag:blogger.com,1999:blog-17737887.post-1148668377889064052006-05-26T11:17:00.000-07:002006-05-26T11:33:02.736-07:00JPEG Patent RejectedThe <a href="http://www.pubpat.org/Chen672Rejected.htm">USPTO has rejected</a> the broadest claims of the JPEG image format patent held by Forgent Networks.<br /><br />It's nice to see the Patent Office doing the right thing, but it's too bad that <a href="http://righttocreate.blogspot.com/2005/10/who-owns-your-images.html">more than $100 million dollars that Forgent has extorted</a> from industry will never be returned to its rightful owners. Forgent gets to keep that money, regardless of how the PTO rules. For <i><b>nearly 19 years</b></i>, this patent has stood without challenge. Now, just over a <a href="http://patft1.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&Sect2=HITOFF&d=PALL&p=1&u=%2Fnetahtml%2FPTO%2Fsrchnum.htm&r=1&f=G&l=50&s1=4,698,672.PN.&OS=PN/4,698,672&RS=PN/4,698,672">year before it was to expire</a>, the PTO declares that it is bogus.<br /><br />So, how would you feel if you had paid hundreds of thousands of dollars to Forgent because they threatened you with a lawsuit that, regardless of outcome, would have cost you millions (average cost of defending oneself in a patent infringement suit stands today at roughly $10 million)? How would you feel knowing that our patent system stood idlely by, while Forgent played this extortion game against hundreds of companies?<br /><br />And most importantly, how do you feel knowing that this is exactly the <a href="http://righttocreate.blogspot.com/2006/02/patent-fee-diversion.html">kind of behavior that our current patent system encourages</a>, today?<br /><br /><small><i>Previously:<br /><ul><li><a href="http://righttocreate.blogspot.com/2005/10/who-owns-your-images.html">Who Owns Your Images?</a></li></ul></i></small>Jackson Lenfordhttp://www.blogger.com/profile/16064191516786486320noreply@blogger.com3tag:blogger.com,1999:blog-17737887.post-1148315239511405092006-05-22T09:25:00.000-07:002006-05-22T09:27:19.986-07:00Funny DystopiaA wonderfully creative thread on the dark future of <a href="http://righttocreate.blogspot.com/2005/10/intellectual-property-monopoly-regime.html">intellectual monopoly</a> is <a href="http://seenonslash.com/node/227">highlighted here</a>.Jackson Lenfordhttp://www.blogger.com/profile/16064191516786486320noreply@blogger.com0tag:blogger.com,1999:blog-17737887.post-1148272649677052522006-05-21T21:25:00.000-07:002006-05-21T21:37:29.820-07:00More Money for Patent System HijackingThe government wants to spend money educating judges to be better informed on patent issues, including hiring "specially appointed clerks with patent expertise." At face value, this sounds like a good idea, but TechDirt <a href="http://techdirt.com/articles/20060519/1548229.shtml">explains exactly why it probably is not</a>: specialization leads to a type of bias which will likely make the system worse, one in which former patent attorneys become specially appointed clerks and judges. One in which the money spent on this type of special education starts to come mainly from the same interests who have been pushing patent "rights" towards <a href="http://righttocreate.blogspot.com/2005/10/intellectual-property-monopoly-regime.html">IP-maximalism</a> for the past several decades. The parallels to <a href="http://righttocreate.blogspot.com/2006/02/patent-fee-diversion.html">regulatory capture</a> are too numerous to mention.Jackson Lenfordhttp://www.blogger.com/profile/16064191516786486320noreply@blogger.com0tag:blogger.com,1999:blog-17737887.post-1148271828488341432006-05-21T21:11:00.000-07:002006-05-21T21:23:48.856-07:00New Right to Create DomainsAJ Rahim has generously forwarded three domains to point at Right to Create, so you may now access the site from <a href="http://www.unfairpatents.com">www.unfairpatents.com</a>, <a href="http://www.unfairpatents.info">www.unfairpatents.info</a>, or <a href="http://www.stopunfairpatents.info">www.stopunfairpatents.info</a>. Thanks AJ!Jackson Lenfordhttp://www.blogger.com/profile/16064191516786486320noreply@blogger.com4tag:blogger.com,1999:blog-17737887.post-1147968383993076902006-05-18T09:03:00.000-07:002006-05-18T09:06:24.533-07:00Patent HoldoutsOver at TechLiberation, <a href="http://www.techliberation.com/archives/038943.php">Tim Lee points to</a> a <a href="http://uchicagolaw.typepad.com/faculty/2006/05/discouraging_pa.html#more">paper</a> by Chicago law professor Doug Lichtman on Patent Holdouts, and makes this commentary:<blockquote>What I found most interesting about the paper, though, is how frankly Lichtman—who I don’t think is a critic of patents generally or software patents in particular—lays out the flaws in the current patent system, especially as it relates to high-tech inventions with hundreds of components. He explains how difficult it is for honest technology creators to discover patents that might be relevant to the technology in development, how the system gives inventors the perverse incentive not to search for relevant patents to avoid treble damages, and how the holder of an undiscovered patent can lie in wait until other companies make significant investments based on their patents and then exort large sums of money from the hapless inventor.</blockquote>Jackson Lenfordhttp://www.blogger.com/profile/16064191516786486320noreply@blogger.com11tag:blogger.com,1999:blog-17737887.post-1147798807300191812006-05-16T09:32:00.000-07:002006-05-16T10:00:08.156-07:00Injunctions, Monopolies, and the Free Market<a href="http://righttocreate.blogspot.com/2006/05/supreme-court-demolishes-automatic.html">Yesterday's ruling</a> gives courts full discretion over whether an injunction should be issued when a valid patent is infringed. Why is this so monumental? It boils down to economics.<br /><br />Prior to this ruling, a non-practicing patent holder (sometimes referred to as a '<a href="http://righttocreate.blogspot.com/2006/01/how-to-become-patent-troll.html">patent troll</a>', but also including small inventors without the resources to commercialize their inventions) was simply using the injunction to get monetary compensation from the infringer. An infringer was forced to the "negotiating" table with the patent holder by power of the injunction. The patent holder's task was then to find the highest price that the infringer could bear, and extract that price from the infringer.<br /><br />Some have argued that this was a fair and efficient process -- the courts didn't have to decide dollar amounts, but left it to the two parties to work out on their own.<br /><br />But this hides an important economic principle in free markets: that markets, <b><i>not monopolies</i></b> should determine prices, and that competition is always good for the market.<br /><br />In the case of patents, a monopoly has been granted to the holder by the government. Allowing the holder of those patents to then seek rent with that monopoly power, without any oversight, gives holders of patents absolute price control. It gives the holder the power to maximize profits. It gives the holder of the patent power that no owner of physical property posesses, powers that no manufacturer of physical products can ever posess. It elevates <a href="http://righttocreate.blogspot.com/2006/02/intellectual-property.html">patents to a status above actual property</a>.<br /><br />By allowing courts to use discretion in determining when not to issue an injunction against a patent infringer, the Supreme Court has opened up the possibility for much fairer damages to be awarded to patent holders whose only goal is to be fairly compensated for their inventions. By issuing this rulling, they are telling lower courts that they must not abdicate their responsibility to ensure that damages are fair; when a non-practicing patent holder has won their case against an infringer, the two parties must now argue in front of a judge over what they think an appropriate compensation dollar amount should be, and an impartial third-party (the judge or jury) must make a decision on damages taking those arguments into account.<br /><br />No more does the non-practicing patent holder get to strong-arm its prey into submission. Fairness is at the heart of every just legal system. The Supreme Court, in issuing this ruling, has understood how unfair monopoly power can be when used solely as a tool of extortion. And it has recognized that patent holding firms have been abusing the courts in this way for years, and that the legal system must change so as not to encourage such corruption in the future.Jackson Lenfordhttp://www.blogger.com/profile/16064191516786486320noreply@blogger.com1tag:blogger.com,1999:blog-17737887.post-1147713357894806162006-05-15T09:47:00.000-07:002006-05-16T11:41:25.923-07:00Supreme Court Demolishes Automatic Patent InjunctionsBig news today: the Supreme Court, in a unanimous decision, has removed the “general rule” that a permanent injunction should be issued once infringement of a valid patent is established. It reversed a lower court's decision that allowed <a href="http://righttocreate.blogspot.com/2006/04/are-ideas-property.html">MercExchange to receive an injunction against eBay</a>.<br /><br /><b>What this means</b>: patent trolls will find it increasingly difficult to swing the axe of injunction over the heads of <a href="http://righttocreate.blogspot.com/2005/11/patents-chilling-science.html">researchers</a>, academics, <a href="http://righttocreate.blogspot.com/2006/04/venture-capitalist-abolish-software.html">innovative startups</a>, and industry titans. Trial courts have complete discretion over whether an injunction is an appropriate remedy for a patent holder. Had this decision arrived earlier, companies like <a href="http://righttocreate.blogspot.com/2006/04/how-19-in-patent-trolls-hands-can-cost.html">RIM may have never had to pay out more than $600 million</a> to patent extortionists or suffer years of irreprable market-place harm and multi-million dollar losses of stock market valuation as the spector of such injunctions hung over their businesses.<br /><br /><b>What this doesn't change</b>: this likely won't affect legitimate competitors with valid patents from achieving injunctions. Only <a href="http://righttocreate.blogspot.com/2006/04/nathan-myhrvold-champion-of-patent.html">patent holding firms (aka, trolls)</a> will have difficulty in proving that irreperable harm is done by allowing the 'infringer' to continue practicing claims of the patent, and that a monetary remedy is insufficient.<br /><br /><b><i>This is a big deal, as it increases your <a href="http://righttocreate.blogspot.com/2005/10/invention-as-fundamental-human-right.html">right to create</a>. It diminishes the paper inventor's monopoly over basic ideas, and gives you more freedom to invent and market your innovations without the fear that unscrupulous individuals will be able to thwart it all by gaming the legal system.</i></b><br /><br />This subtle change doesn't destroy <a href="http://righttocreate.blogspot.com/2006/03/reforms-we-like.html">the shackles of our broken patent system</a>, but it certainly loosens the bonds that tie innovation down. And perhaps most importantly, it demonstrates that the Supreme Court understands how oppressive the current legal system has become with respect to patent litigation. This decision is, perhaps, a portent of how the Court might feel about <a href="http://righttocreate.blogspot.com/2005/11/supreme-court-to-reform-patent-law.html">several other important patent issues it is schedulued to hear</a>.<br /><br />Dennis Crouch has <a href="http://www.patentlyo.com/patent/2006/05/supreme_court_v.html">more in-depth analysis</a>.<br /><br /><small><i>Additional Commentary: <a href="http://righttocreate.blogspot.com/2006/05/injunctions-monopolies-and-free-market.html">Injunctions, Monopolies, and Free Markets</a></i></small>Jackson Lenfordhttp://www.blogger.com/profile/16064191516786486320noreply@blogger.com0tag:blogger.com,1999:blog-17737887.post-1147370187596765722006-05-11T10:50:00.000-07:002006-05-11T10:56:27.726-07:00Digital Video Patent ThicketWe've talked about the emerging threat of <a href="http://righttocreate.blogspot.com/2006/02/giant-trolls-who-owns-your-home-videos.html">patents covering MPEG-4 recently</a>, but today there is a fascinating discussion regarding MPEG-2 Patent Thickets and their impact on software DVD players, consumer choice, and vendor freedom over at <a href="http://www.techliberation.com/archives/038768.php">The Technology Liberation Front</a>, with the article coming to the logical conclusion that:<blockquote>In any event, the best solution is to repeal software patents, which impede innovation in this and many other software categories.</blockquote>This post was a followup to another fascinating discussion at TLF regarding <a href="http://www.techliberation.com/archives/038757.php">Linux DVD players</a>.Jackson Lenfordhttp://www.blogger.com/profile/16064191516786486320noreply@blogger.com0tag:blogger.com,1999:blog-17737887.post-1147369801656310922006-05-11T10:42:00.000-07:002006-05-11T11:00:58.210-07:00OnStartups Advice on PatentsOnStartups, a blog providing "Practical Advice for Software Startups", recently published an <a href="http://onstartups.com/Home/tabid/3339/articleType/ArticleView/articleId/595/Default.aspx">article</a> detailing the value of <i>barriers to entry</i>, and explaining why there really are only three types of these for a software startups. I'll leave you to read the article if you care to know what these are, but conspicuously missing from the list were patents:<blockquote>If you’re thinking: “What about patents?”, my response is “what about them?” Patents are a strange kind of barrier to entry that actually requires that people acknowledge their existence and you have the resources to enforce them. For most startups, neither of these are true. How many software startup founders have you met that do an exhaustive patent check before locking themselves in a room and writing code? Not many.</blockquote>This seems to fall squarely into lines with what most people have said for a long time: patents are really only valuable in the hands of companies with relatively deep pockets. Individual inventors, <a href="http://righttocreate.blogspot.com/2005/11/patents-chilling-science.html">scientific researchers</a>, and <a href="http://righttocreate.blogspot.com/2006/04/venture-capitalist-abolish-software.html">founders of startups</a> are disadvantaged by their presence.Jackson Lenfordhttp://www.blogger.com/profile/16064191516786486320noreply@blogger.com0tag:blogger.com,1999:blog-17737887.post-1147271186004434262006-05-10T07:17:00.000-07:002006-05-10T07:26:26.126-07:00Seeking an inventive patent systemThe Philadelphia Enquirer provides a succinct summary of our current patent woes in <a href="http://www.philly.com/mld/inquirer/news/editorial/14540667.htm">today's opinion piece</a>:<blockquote>When fueled with adequate resources, these [patent] systems encourage the creation of inventions and drive economic growth.<br /><br />At one time, the U.S. patent system was an example of this creative dynamic. Not anymore, as patent-related issues have become uncertain, [and] lengthy, legal proceedings rather than business or scientific discussions [determine the outcomes].</blockquote>The commentary recommends several useful reforms, including a suggestion to<blockquote>adopt a "probation" system, in which patents are granted but then subject to a rigorous review by interested third parties. Only an invention that passes the scrutiny of experts and competitors would be assigned a permanent patent, making it more robust.</blockquote>This is similar in nature to <a href="http://righttocreate.blogspot.com/2006/01/premature-patent-expiration-for-lack.html">premature expiration</a> combined with <a href="http://righttocreate.blogspot.com/2006/02/reform-fine-patent-holders-for-valid.html">incentives for encouraging applicants to find their own prior art</a>, but is stated more concisely under the term "Patent Probation."Jackson Lenfordhttp://www.blogger.com/profile/16064191516786486320noreply@blogger.com3tag:blogger.com,1999:blog-17737887.post-1147270661956872752006-05-10T07:06:00.000-07:002006-05-11T11:32:28.980-07:00Constitutional Patent CrisisLawPundit's Andis Kaulins <a href="http://www.lawpundit.com/blog/2006/05/us-patent-law-constitutional-chaos.htm">details the steady expansion</a> of the government-granted 'rights' given to the <a href="http://righttocreate.blogspot.com/2005/10/intellectual-property-monopoly-regime.html">intellectual monopoly regime</a> from its narrowly imagined constitutional basis, enshrined by our founders over 200 years ago. His well-written opinion is backed up with many examples and is steeped in historical fact. Of course, that doesn't stop Patent Prospector's Gary Odom from refuting his arguments by <a href="http://www.patenthawk.com/blog/archives/2006/05/amish_attitude.html#more">claiming that the author enjoys "his rich fantasy life," but apparently not in "solitude," because Kaulins uses the word "we" to refer to himself.</a> Unfortunately, that type of ad hominem attack and diversionary quibbles about speaking in the third person says a lot about the current level of debate that the IP-maximalist crowd engages in these days.<br /><br /><i><small>Updated to correct misquote.</small></i>Jackson Lenfordhttp://www.blogger.com/profile/16064191516786486320noreply@blogger.com6tag:blogger.com,1999:blog-17737887.post-1147193038982861102006-05-09T09:40:00.000-07:002006-05-09T09:44:02.956-07:00Patent DoomsdayJohn Soat describes a <a href="http://www.informationweek.com/story/showArticle.jhtml?articleID=187200377">chilling patent doomsday scenario</a> over at InformationWeek, and invites you to do the same.<br /><br /><a href="mailto:jacksonlenford@yahoo.com">Let us know</a> what you come up with and we'll point to your blog entry or webpage. Or feel free to compose your scenario and attach as a comment to this post.Jackson Lenfordhttp://www.blogger.com/profile/16064191516786486320noreply@blogger.com3tag:blogger.com,1999:blog-17737887.post-1147191189493176442006-05-09T09:10:00.000-07:002006-05-09T09:35:07.696-07:00Ridiculous Patent: Paying ProgrammersA company called OpenLogic has come up with an innovative way to provide expert-level technical support for open source products, while also funding developers of those projects: <a href="http://www.eweek.com/article2/0,1895,1958756,00.asp">pay participating developers for support activities</a>. Unfortunately, <a href="http://www.eweek.com/article2/0,1895,1462476,00.asp">IBM patented a very similar idea</a> in 2003.<br /><br /><small>(Note of interest: IBM has agreed to be the guinea pig for the <a href="http://righttocreate.blogspot.com/2006/05/patent-peer-review.html">peer-review patent pilot program</a>. No word on whether or not they are hoping to have more of their embarassing patent applications rejected. Either way, they get points for trying to help improve the process.)</small>Jackson Lenfordhttp://www.blogger.com/profile/16064191516786486320noreply@blogger.com0tag:blogger.com,1999:blog-17737887.post-1147190910148314972006-05-09T09:08:00.000-07:002006-05-09T09:17:02.366-07:00Patent Peer ReviewThe USPTO is kicking off their exploration of peer-reviewed patent applications with <a href="http://dotank.nyls.edu/communitypatent/">a pilot project</a>. Peer reveiw has <a href="http://righttocreate.blogspot.com/2006/01/patent-reform-via-open-source.html">tremendous potential</a> for increasing patent quality, but any process also has equally tremendous potential for abuse. Hopefully, they'll figure out how to make this work in a sensible way, and then can begin tackling <a href="http://righttocreate.blogspot.com/2006/03/reforms-we-like.html">other reform measures</a>.Jackson Lenfordhttp://www.blogger.com/profile/16064191516786486320noreply@blogger.com0tag:blogger.com,1999:blog-17737887.post-1146761503028372592006-05-04T09:45:00.000-07:002006-05-04T09:51:43.503-07:00Free Software and Model Railroading Patents UpdatePamela Jones of <a href="http://www.groklaw.net">Groklaw</a> has written a <a href="http://lwn.net/Articles/181261/">detailed summary</a> of the continuing patent dispute between KAM Industries and Bob Jacobsen's open source JMRI software for controlling model railroads.<br /><br />If you aren't familiar with the case, Bob Jacobsen is a model railroading hobbyist who wrote the JMRI software in his spare time and then gave it away for free. KAM Industries then <a href="http://righttocreate.blogspot.com/2006/04/write-free-software-pay-203000-to.html">sent him an invoice for over $200,000</a>, claiming that he infringed their patents and that he owed them royalties.Jackson Lenfordhttp://www.blogger.com/profile/16064191516786486320noreply@blogger.com0tag:blogger.com,1999:blog-17737887.post-1146602565347353682006-05-02T13:41:00.000-07:002006-05-03T10:02:20.826-07:00The Invention of TelevisionPem Farnsworth's <a href="http://www.cnn.com/2006/TECH/ptech/05/02/farnsworth.obit.ap/index.html">recent passing</a> at her home in Utah provides a good opportunity to discuss one of the most important (or at least influential) inventions of our age: the Television. Pem was the wife of its inventor, Philo. Philo Farnsworth, incidentally, always claimed Pem was television's co-inventor.<br /><br />If you are unfamiliar with Philo Farnsworth's story, you should <a href="http://www.wired.com/wired/archive/10.04/farnsworth.html">acquaint yourself with it</a>. It is a fascinating tale of a lone inventor coming up with a brilliant idea, pursuing it to its fruition, then watching, helplessly, as corporate America took full credit, leaving Farnsworth nearly destitute and unknown until after his death in 1971.<br /><br />At the age of 15, Farnsworth had conceived his fundamental idea and sketched it out for his High School physics teacher. By the age of 20, he had applied for two patents covering the invention. At 22, he had a working camera and television set. It is Farnsworth's ideas that form the basis of all modern televisions.<br /><br />Of course, <a href="http://en.wikipedia.org/wiki/Philo_Farnsworth">many others were also pursuing television</a>. In a society already very accustomed to both radio and movies, it was not a great leap to think of combining the two mediums by transmitting moving pictures along with sound. RCA, under the direction of David Sarnoff and technician Vladimir Zworykin, applied for their own patents and spread their own message about television. By the end of the 2nd World War, most Americans came to know RCA, Sarnoff, and Zworykin as the fathers of television. As Wired <a href="http://www.wired.com/wired/archive/10.04/farnsworth.html">puts it</a>, Sarnoff "and his lawyers did to Farnsworth what they'd done to those who had developed key radio inventions but had refused to cooperate with RCA: They launched a legal assault aimed at overturning the patents on appeal, tying up the inventor emotionally and financially for years. The challenges continued for much of the '30s. They slowed the development of television, delayed its introduction to the public, squandered Farnsworth's already thin resources, drove him to drink, and contributed to his development of a bleeding ulcer." Farnsworth battled RCA in court and was eventually vindicated by the USPTO as the sole inventor of television, but "time ran out. Farnsworth's key patents expired in 1947, just a few months before TV sales took off from 6,000 sets in use nationwide to tens of millions by the mid-1950s. RCA captured nearly 80 percent of the market, while Farnsworth was forced to sell the assets of his company."<br /><br />The patent system couldn't help Farnsworth much then, and it wouldn't help him much now. A patent system will always end up benefitting moneyed interests more than it benefits individuals. Corporate control of the process has never been stronger, yet we see that the more things change, the more they stay the same. If it hadn't been for RCA's lawyering with bogus patents, Farnsworth may have been able to get his invention into consumers hands and reaped the benefits of his labor. Instead, he had to waste years pleading with the government in court against RCA's patent litigation. The patent system was ineffectual in protecting Farnsworth, even though he held valid patents.<br /><br />Some would argue that the solution to problems like this is to make the patent system even stronger, and make it even easier for patent holders to assert their rights. Yet any such strengthening gives disproportionate muscle to the RCAs of the world, who have more money to throw behind their "patent rights" than any lone inventor ever will. The only way to level the playing field is to reduce the strength of patents, so that individuals like Farnsworth have a right to create equal to that of big corporations. As long as we continue to give patent holders big enough rocks, they will continue to use them to <a href="http://righttocreate.blogspot.com/2006/03/broken-windows-broken-patents.html">smash the windows</a> of the innocent.<br /><br /><small>footnote: Farnsworth continued inventing during his later years, focusing on nuclear fusion. The <a href="http://en.wikipedia.org/wiki/Farnsworth-Hirsch_Fusor">Farnsworth-Hirsch Fusor</a> was the first device to clearly demonstrate any fusion reactions at all, and is still in use today. But because of his prior experience with the patent system, Farnsworth refused to use patents to protect his discoveries, most of which became public domain. However, it is widely feared that some of these discoveries went to the grave with Farnsworth in 1971.</small>Jackson Lenfordhttp://www.blogger.com/profile/16064191516786486320noreply@blogger.com14tag:blogger.com,1999:blog-17737887.post-1146540801198162442006-05-01T20:18:00.000-07:002006-05-02T08:34:46.343-07:00Why Patent Trolls WinIf you negotiate with terrorists, it'll encourage more terrorism. This appears to be just as true of terrorists who try to destroy your innovation and/or livelihood as it is of terrorists who hijack airplanes and blow people up. RIM has just found out that their $600+ million settlement with patent terrorist NTP is going to cost them even more -- now other patent trolls see them as an easy target. Visto Corp of California, has <a href="http://www.cbc.ca/story/business/national/2006/05/01/visto-rim060501.html">filed a patent infringement lawsuit against RIM</a> in the <a href="http://righttocreate.blogspot.com/2006/02/how-to-litigate-like-patent-troll.html">Eastern District of Texas</a>, hoping that <a href="http://righttocreate.blogspot.com/2006/02/yet-another-ntp-patent-defeat.html">NTP's recently successful shakedown</a> of RIM with illegitimate patent claims will result in a similar outcome for them.<br /><br />Regardless of the merit of Visto's claims (RIM counters that not only do the patents not apply to RIM technology, but that the patents are invalid anyway), this also clearly demonstrates the great harm that software patents cause -- how many patents could RIM's products and services <a href="http://righttocreate.blogspot.com/2006/02/unclear-borders-of-software-patents.html">possibly trespass upon</a>, and when does RIM cross the break-even point into negative profits and be forced to shutter their wildly popular products, as dozens of trolls each demand a section of the pie greater than the pie itself?<br /><br />All this, from a patent system which is constitutionally mandated to promote the useful arts and sciences. Tell me again, how do litigation cases like those started by NTP and Visto promote anything at all resembling that?<br /><br /><i><small>Update: as a note of interest, Visto is the company that licensed NTP's patents near the end of the BlackBerry trial. In exchange, NTP became a minority stake-holder in Visto. So in a very real way, Visto's lawsuit is just NTP's lawsuit all over again, with a different set of overly broad and obvious patent claims</small></i>Jackson Lenfordhttp://www.blogger.com/profile/16064191516786486320noreply@blogger.com2tag:blogger.com,1999:blog-17737887.post-1146256387057052132006-04-28T13:26:00.000-07:002006-04-28T13:33:07.710-07:00Against MonopolyDavid Levine has <a href="http://www.againstmonopoly.org/">started a blog</a>, focusing on some of the same topics as Right to Create. The posts are high quality and the perspectives will be familiar -- <a href="http://www.againstmonopoly.org">take a look</a> (we've highlighted Levine's seminal work <a href="http://righttocreate.blogspot.com/2005/10/how-patents-set-industrial-revolution.html">once</a> or <a href="http://righttocreate.blogspot.com/2005/12/why-drug-companies-dont-need-patents.html">twice</a> before).Jackson Lenfordhttp://www.blogger.com/profile/16064191516786486320noreply@blogger.com0tag:blogger.com,1999:blog-17737887.post-1145638030918926932006-04-24T09:46:00.000-07:002006-04-21T21:31:46.100-07:00Ridiculous Patent: Infinite Data CompressionA ridiculous patent was recently brought to our attention by an alert reader. The <a href="http://patft1.uspto.gov/netacgi/nph-Parser?Sect1=PTO2&Sect2=HITOFF&p=1&u=%2Fnetahtml%2FPTO%2Fsearch-adv.htm&r=1&f=G&l=50&d=PALL&S1=5533051.PN.&OS=PN/5533051&RS=PN/5533051">patent</a> claims to <a href="http://gailly.net/05533051.html">perform the impossible</a>: compress data beyond the bounds that are clearly understood in information theory. Since the algorithm is not operative, it shouldn't have been granted a patent, as per the <a href="http://www.uspto.gov/web/offices/pac/doc/general/#whatpat">USPTO's own rules</a>.<br /><br />Specifically, the patent in question claims to compress any input data by at least one bit, and to do this with no loss of information. The patent also claims that this process can be applied recursively, making multiple passes over a file until the desired level of compression is reached. These claims imply that you could run the compression enough times to eventually reach a compressed data size of 1 bit, regardless of the input. Now, suppose I compress 10 different files in this way -- each of them compresses to a single '1' or '0' (a single bit). How, then, can we decompress a '1' into many different files? Where does that extra information come from? Obviously, this is a non-starter.<br /><br />The sad fact is that anyone who has studied rudimentary computer science should immediately know this patent is impossible. Every introductory course in Information Theory makes this plain within the first week of lectures. But you don't have to be a computer scientist to understand the impossibility of these claims through simple logic. We keep hearing that USPTO examiners are experts in their fields, yet the patent office keeps churning out patent approvals just like this one. I'll leave it to you, gentle reader, to draw your own conclusions.<br /><br />Perhaps, though, it really is time to "open up the examination process to those beyond the single PTO employee doing the examination, and ... let adversarial forces (competitors, existing players) use their own survival as an incentive to participate. And let's let the poor overworked patent examiner act more as a judge or referee in this activity (instead of adversary, advocate, AND judge)" (from <a href="http://righttocreate.blogspot.com/2006/04/more-examiners-better-patents.html">"More Examiners = Better Patents?"</a>).<br /><br /><small><i>Previously Ridiculous:<ul><li><a href="http://righttocreate.blogspot.com/2006/04/ridiculous-patent-string-phone.html">The String Phone</a></li><li><a href="http://righttocreate.blogspot.com/2005/11/patenting-storylines.html">Plotlines</a></li><li><a href="http://righttocreate.blogspot.com/2006/03/ridiculous-patent-rice.html">Rice</a></li><li><a href="http://righttocreate.blogspot.com/2006/01/ridiculous-patent-peanut-butter-jelly.html">Peanut Butter and Jelly Sandwich</a></li><li><a href="http://righttocreate.blogspot.com/2005/11/ridiculous-patents-1-swinging.html">Swinging</a></li><li><a href="http://righttocreate.blogspot.com/2005/12/ridiculous-patent-combing-hair-to.html">the Comb-over</a></li><li><a href="http://righttocreate.blogspot.com/2006/01/ridiculous-patent-smiley-faces.html">Smiley Faces</a></li><li><a href="http://righttocreate.blogspot.com/2006/01/ridiculous-patent-popup-ads.html">Pop-up Ads</a></li><li><a href="http://righttocreate.blogspot.com/2005/11/ridiculous-patent-antigravity-device.html">Anti-gravity Device</a> (another non-operative, laws-of-physics-violating patent)</li><li><a href="http://righttocreate.blogspot.com/2006/02/ridiculous-patent-serving-cereal.html">Serving Cereal</a></li><li><a href="http://righttocreate.blogspot.com/2005/11/ridiculous-patents-3-highlighting.html">highlighting Numbers</a></li></ul></i></small>Jackson Lenfordhttp://www.blogger.com/profile/16064191516786486320noreply@blogger.com7tag:blogger.com,1999:blog-17737887.post-1145291239596942162006-04-21T09:25:00.000-07:002006-04-21T10:31:14.103-07:00The Case Against PatentsMicrocomputer pioneer Don Lancaster explains why individual inventors <a href="http://www.tinaja.com/glib/casagpat.pdf">should stear clear of the patent system entirely</a> when seeking their fortune, or even when seeking only to put food on the table to keep inventing.<br /><br />A lot has changed since Lancaster first published this article. But then again, a lot has stayed the same -- patents still provide much stronger advantages for large companies than they do for inventors. One major change has emerged, however, and it <a href="http://www.google.com/custom?domains=righttocreate.blogspot.com&q=troll&sitesearch=righttocreate.blogspot.com&sa=Search&client=pub-9458573919749233&forid=1&ie=ISO-8859-1&oe=ISO-8859-1&cof=GALT%3A%23008000%3BGL%3A1%3BDIV%3A%23336699%3BVLC%3A663399%3BAH%3Acenter%3BBGC%3AFFFFFF%3BLBGC%3A336699%3BALC%3A0000FF%3BLC%3A0000FF%3BT%3A000000%3BGFNT%3A0000FF%3BGIMP%3A0000FF%3BFORID%3A1%3B&hl=en">starts with a 't' and ends with a 'roll'</a>.Jackson Lenfordhttp://www.blogger.com/profile/16064191516786486320noreply@blogger.com9tag:blogger.com,1999:blog-17737887.post-1145551534320904802006-04-20T09:45:00.000-07:002006-04-21T16:41:20.293-07:00Model Railroading Patents UpdateI wanted to update you on the <a href="http://righttocreate.blogspot.com/">ongoing battle</a> between Bob Jacobsen, the author of open source model railroading software, and KAM Industries, who sent him an invoice for $203,000 because he allegedly infringed their patent by giving away his software. Jacobsen's lawyer <a href="http://digg.com/technology/Patent_lawyers_tell_free_software_developer_to_pay_$203,000#c1505312">has posted</a> the following:<blockquote>Folks,<br /><br />I am Mr. Jacobsen’s attorney. I heard about these postings through the grapevine, and wanted to add some comment.<br /><br />First, I want to clarify one thing. Mr. Katzer did not sue Mr. Jacobsen. Because of the dispute over the patent rights, I filed a declaratory judgment action on Mr. Jacobsen’s behalf in U.S. District Court for the Northern District of California on March 13, 2006. Case number is 06-1905, for those who are interested. You can read the filings on PACER, the court's electronic filing system.<br /><br />The purpose of the declaratory judgment action is to resolve a dispute over the patent rights. Mr. Katzer claims that Mr. Jacobsen is infringing his patent. Mr. Jacobsen says he is not infringing any valid and enforceable patent right that Mr. Katzer holds. Because of the increased damages for willful infringement, Mr. Jacobsen needs to have a determination of rights and responsibilities as it relates to Mr. Katzer’s patent. There are other causes of action that Mr. Jacobsen is pursuing against Mr. Katzer – antitrust (attempted monopolization), unfair competition, cybersquatting (on a JMRI trademark) and libel. We will address these issues and the issues relating to the declaratory judgment action in due course.<br /><br />Second, I realize that many of you are angry at Mr. Katzer, and his attorney, Mr. Russell, for the letters they have sent to Mr. Jacobsen, and other actions they have taken against Mr. Jacobsen. I want to ask you to NOT harass them through calls, letters, faxes, emails, etc. It does NOT advance the case in Mr. Jacobsen’s favor. Here’s what will: As we stated in the lawsuit, there are numerous examples of prior art and inequitable conduct which affect patent rights. If you have more evidence, we’ll take it. The key date is prior art existing before June 24, 1998, and more importantly, prior art existing before June 24, 1997. The prior art that we are looking for is:<br />- A patent or printed publication that described the invention. Source can be from anywhere in the world.<br />- Evidence of public use, offer for sale, or sale in the United States. (If it’s from outside the U.S., please make a note and send it so we can follow up.)<br />- Evidence of another person inventing the same thing in the U.S. – the invention must not have been suppressed, concealed or abandoned.<br />- If the evidence is not the exact invention, then any information (in addition to the evidence) suggesting that the evidence could be combined with something else to successfully make the invention.<br /><br />My homepage is www.vkhall.com – you can get my address through the website and send it to me. Please send it via mail. My e-mail service provider is not particularly reliable.<br /><br />Regards,<br /><br />Victoria K. Hall<br /><br />P.S. Mr. Jacobsen contacted me through EFF, so the folks there know about this matter.</blockquote>Please take Ms. Hall's advice, and don't waste time harassing KAM.<br /><br />If you do feel spurred to action by these events (and we hope you do), in addition to prior art searches in this particular case, you can, as always, write a letter to your <a href="http://www.senate.gov/">Senators</a> and <a href="http://www.house.gov/writerep/">Congressional Representatives</a>, and let them know how you feel about this case and the type of abuse that the patent system encourages, and/or <a href="http://righttocreate.blogspot.com/2006/03/reforms-we-like.html">reforms</a> that you think might be useful. Remember, KAM's behavior is exactly what the patent system currently incentivizes patent holders to do. Let your elected officials know that you don't agree with this, and that you want to see legislation enacted that will prevent this type of thing in the future.<br /><br />And you could also pitch in a couple of bucks to <a href="https://secure.eff.org/site/SPageServer?pagename=DON_splash&JServSessionIdr011=s3zt73lbp1.app2a">join the EFF</a>.Jackson Lenfordhttp://www.blogger.com/profile/16064191516786486320noreply@blogger.com27tag:blogger.com,1999:blog-17737887.post-1145480197753946312006-04-19T13:52:00.000-07:002006-04-21T16:40:53.503-07:00Write Free Software, Pay $203,000 to Patent HolderBob Jacobsen, a model railroad hobbyist, wrote a bunch of software to let you connect your computer to your model railroad and control trains with it. He chose to not only <a href="http://jmri.sourceforge.net/">give the software away for free</a>, but to make the <a href="http://jmri.sourceforge.net/download/">source code available</a> as well, so that the model railroading/hacker community could improve it and customize it to their liking.<br /><br />And then KAM Industries, maker of commercial software that serves a similar role, <a href="http://www.chillingeffects.org/patent/notice.cgi?NoticeID=2432">tried asserting their 'patent rights' over doing just that</a>.<br /><br />When the author of the open source railroad controller asked for additional information about what claims were being infringed, <a href="http://jmri.sourceforge.net/pp/k/20050824-KAM-3.pdf">KAM sent him an invoice for $203,000</a>, claiming that the 7000 or so users of his software resulted in damages of at least $29/each.<br /><br /><a href="http://www.trainpriority.com/">KAM</a> then <a href="http://jmri.sourceforge.net/pp/k/FOIA-20051027.pdf">sent a request to the author's academic sponsor</a> (unrelated to his independent model railroad work), requesting copies of all his email and other correspondence. To most observers, these actions would seem to be nothing more than <a href="http://righttocreate.blogspot.com/2006/03/broken-windows-broken-patents.html">dirty tactics</a> meant to rattle Jacobsen into compliance.<br /><br />Several more threatening letters arrived. Finally, in January of this year, <a href="http://jmri.sourceforge.net/pp/k/20060131-RGJ.pdf">Jacobsen responded by pointing out that he didn't believe the KAM patent would withstand a challenge in court</a>, noting that there was plenty of prior art, <i><b>including his allegedly infringing software, which was available before KAM filed their patent application</b></i>. He also pointed out that KAM's lawyers must have known this all along. In February, KAM's lawyers responded by claiming that they know of no invalidating prior art, and that they still viewed Jacobsen's work as infringing on their patent rights.<br /><br />This is all still ongoing. It isn't clear that KAM will cease harassing Jacobsen, even with the knowledge that their patents are likely illegitimate.<br /><br />But it is abundantly clear that patents like this hurt the efforts of those trying to make the world a better place by producing tools for others to use (for free in this case). It is equally as clear that even small companies can use their patents as bludgeons against individuals.<br /><br />The continuing saga (as well as all correspondence to date) can be followed at <a href="http://jmri.sourceforge.net/pp/k/index.html">Jacobsen's website</a>. Let's hope Jacobsen's software doesn't get shuttered by patent interests like <a href="http://righttocreate.blogspot.com/2006/04/patents-kill-open-source.html">RProxy did</a>.<br /><br /><i>There are a <a href="http://righttocreate.blogspot.com/2006/03/reforms-we-like.html">number of useful reforms</a> that could make the patent system a bit less abusive. If you want to do something about this type of absurdity, you can certainly try writing a letter to your <a href="http://www.senate.gov/">Senators</a> and <a href="http://www.house.gov/writerep/">Congressional Representatives</a>. As always, feel free to cut and paste anything from this website when you compose your letter (a letter focusing on your <a href="http://righttocreate.blogspot.com/2006/03/reforms-we-like.html">favorite reform</a> is a useful strategy) -- everything at <a href="http://righttocreate.blogspot.com/">Right to Create</a> is in the public domain.</i>Jackson Lenfordhttp://www.blogger.com/profile/16064191516786486320noreply@blogger.com102