This piece was published days ago and has been up on the internet but largely passed without notice, much less comment link here. I found it valuable as another case where a major innovation took place without IP--no copyright and no patents. It occurred at its own pace, driven by the intellectual interest and dreams of a number of people, cooperating informally to bring about the Internet. Read it and remember, the next time you hear that little innovation would take place without IP.

Aagh. I read that as "(the) Internet Protocol did not produce the internet" and thought you'd lost it for a second. :(

On the other hand, diesel engines were subject to dozens of patents beginning with Rudolf Diesel. The more patents that issued, the more innovation occurred. The speed of innovation became blinding with at least three distinctive diesel designs competing with each other.

While lack of patents may drive innovation in some fields, patents drive innovation in others.

While lack of patents may drive innovation in some fields, patents drive innovation in others.

So you agree that in some fields, patents are a bad idea?

On the other hand, diesel engines were subject to dozens of patents beginning with Rudolf Diesel. The more patents that issued, the more innovation occurred. The speed of innovation became blinding with at least three distinctive diesel designs competing with each other.

As you point out, competition is crucial for innovation, which might be evidence for the fact that the patent system can do more harm than good, at least in many fields where we currently have a patent system.

On the other hand, diesel engines were subject to dozens of patents beginning with Rudolf Diesel. The more patents that issued, the more innovation occurred. The speed of innovation became blinding with at least three distinctive diesel designs competing with each other.

It doesn't follow that innovation in this area was aided by patents, and it might well be the case that diesel engine innovation would have been faster without patents. Do you have a literature citation that supports this?

The facts cut the other way concerning inventions such as the steam engine, etc.

Bill:

"The Engine That Could," which is a history of Cummins, and "The Diesel Odyssey of Clessie Cummins" by Lyle Cummins discuss the Diesel and Bron patents and Clessie Cummins desire to design a diesel engine that was better than both, and non-infringing - and he did. There was a lot of interest in diesel engines, but some (including Cummins) were not happy with Diesel's engine and developed other, non-infringing versions.

Here is an interesting situation. In "The Engine That Could" the authors discussed the different groups using the Diesel, Bron and Cummins engines. The Bron engine was developed because of the Diesel patents, but the Cummins engine was developed because Clessie thought he could do better. The Diesel engine did have issues, but it also had a head start and was getting the most investment. Indeed, it took Cummins a couple of decades to prove his engine. Had patents not existed, it is quite likely that Bron would have thrown in with Diesel, and Cummins would never have received the investment and attention he did. In the end, the Cummins design proved its worth and Cummins, Inc., remains the largest independent manufacturer of diesel engines.

Kid:

I have long thought that business method patents were absurd. How can you patent something that you can do in your head?

As for software patents, I had my doubts about many software patents, and In Re Bilski pretty much confirmed the CAFC's (Court of Appeals for the Federal Circuit) opinion, along with the BPAI (Board of Patent Appeals and Interferences) and the USPTO, that many software patents should not be allowed. Indeed, the CAFC specifically created the tests that would determine whether software patents could be allowed. Under these tests, many software patents would not be allowed.

There was a flurry of blog posts on various web sites by attorneys who thought they could easily write claims around Bilski, but subsequent USPTO and CAFC rulings have, thus far, indicated they are wrong. Bilski has asked for the Supreme Court to take his case. Regardless of what they do, the outcome will be interesting.

*cough*

Jesse:

I would absolutely LOVE to see you build a diesel engine from scratch in your garage. Indeed, I doubt that any of the patent holders would even bother to find you should you copy one of their mechanisms as precisely as you could in your garage (of course, I have no idea what a real patent holder would do, and I am certainly NOT encouraging you to break the law).

The difference between doing something in your head and something in your garage is huge. As the courts have reminded attorneys and police time after time, you cannot arrest or convict someone based on what they are thinking. The recent reinterpretations of patent law are consistent with that precedence. If I can think about how to take an action, and all a business method does is to write that process down, how can that be patentable? Of course, it cannot, as the Circuit Court has reminded us.

On the other hand, the Constitution of the United States and the laws of the United States and the vast majority of other countries in the world have been written to protect the rights of inventors for a limted period of time, on the condition that inventors reveal how to make their invention to the world. Whether you agree with the law or not, it is the law established by representatives of the people of the United States of America. If you do not like the law, then you must work to change it.

From a practical viewpoint, it is quite difficult to reproduce the vast majority of patented inventions in your garage. It is possible that a patent holder would come after you, but since your production costs are likely to be multiples of theirs, and since you are not likely to be any threat to them, it seems unlikely that most patent holders would (a) even know what you are doing, and (b) even bother with you (again, I am not encouraging you to copy the latest patented feature on the most recent Airbus aircraft - this is merely an intellectual exercise only).

I should also point out that I fail to recall any individual being sued by a patent holder for building a patented mechanism in his or her garage. Perhaps you could enlighten me?

Kid:

Here is a quote from Chapter 6, Innovation, Intellectual Property, and Competition, of "Anticipating the 21st Century, Competition Policy in the New High-Tech, Global Marketplace," May 1996:

Intellectual property protection appears to spur innovation -- especially in particular industries -- but also may inhibit successive innovation in some circumstances.

This same report (also chapter 6) points out that in the period from 1981-83 that 86 percent of innovations overall "would have been developed even without patent protection." (Edwin Mansfield, Patents and innovation: An empirical study, 32 MANAGEMENT SCIENCE 173 (1986). Note that Mansfield's study was for 12 industries and excluded firms with sales below $25 million.

However, Mansfield also "...concluded that 60 percent of pharmaceutical inventions and 38 percent of chemical inventions would not have been developed absent patent protection.

Also in chapter 6 is a summary of research by Richard Levin and others in 1987 (Richard C. Levin et al., Appropriating the returns from industrial R&D, BROOKINGS PAPERS ON ECONOMIC ACTIVITY 783, 795-96 (1987)) noting that patents were considered to be "highly effective" in obtaining returns in five industries (which included drugs, organic chemicals, and pesticides) and "moderately effective" about twenty other industries, especially those related to chemicals and "relatively simple mechanical equipment."

This paper appears to be nicely balanced regarding the benefits and limitations of patents to society.

Lonnie, a patent doesn't cover coming up with an idea -- it covers implementing the idea.

Frankly, it's somewhat disingenuous to describe a business method patent as "something you can do in your head" anyway, because what the patent actually covers is implementing that business method in the real world. And if it's absurd to patent something like, say, charging a customer's credit card and shipping an item in response to a single button click, then surely it's absurd to patent something like combining pistons and gears in a particular arrangement as well.

Jesse:

With regard to combining pistons and gears in a particular arrangement, I and the USPTO would agree with you, in general. It would require something pretty spectacular to be novel by merely combining pistons and gears in an arrangement.

In general patents are for an improvement to an existing technology, except in those rare cases where the patent is a new technology. I have seen a couple of patents that amounted to "merely combining pistons and gears" (not exactly like that, but kind of similar), but the owner had never defended the patent in court - yet. I previously thought those patents were likely to be losers in court. The way courts have tended, almost certainly will be losers in court.

Lonnie, I think you're being disingenuous. What is a diesel engine if not a combination of pistons and gears (and various other mechanical parts) in a particular arrangement? You can't argue in favor of patenting engines in one breath and then argue against patenting mechanical devices in the next.

Jesse:

I am not against patenting mechanical devices. I was stating that a combination of gears and pistons in and of itself was likely not patentable.

However, a modern diesel engine (and, for that matter, a modern gasoline engine) is an incredibly complex and sophisticated piece of equipment. To the best of my limited knowledge, there have been no patents on the basic diesel engine (the "gears and pistons") for quite a long time (at least decades). However, the complex controls and aftertreatment systems have seen steady and continuous invention for the last couple of decades, and I suspect that the invention will continue as the world drives diesel engine manufacturers for cleaner and more fuel efficient engines. Indeed, the manufacturers of diesel engines have a lot of intellectual property in various competing technologies.

Lonnie, I'm going to have a hard time taking you seriously if you keep this up.

"To the best of my limited knowledge, there have been no patents on the basic diesel engine (the "gears and pistons") for quite a long time (at least decades)."

And yet there were in the past, and you've been defending them! Come on!

Modern diesel engines are more sophisticated than past engines, but all that means is they have more components in more complicated arrangements. There's no fundamental difference between patenting the basic design of the diesel engine and patenting a complex modern design.

Jesse:

When the first diesel engine was developed by Rudolf Diesel, it was something akin to a miracle. No one had ever seen an "oil-burning" engine with the kind of compression that the diesel had. It was significantly sophisticated for its time. Was it novel and patentable at that time, of course. No one knew how to make a diesel, or that it was even possible, until Rudolf Diesel showed them how. This demonstration of technology, showing the world something it has never seen before, is the value and benefit of patents. Of course, anyone could make a diesel engine once Diesel revealed that knowledge to the world, but obviously it is far more than a combination of gears and pistons or anyone could have done it.

Do I defend the patent provided to Diesel? Why not? Society set the rules to permits an inventor to have a short-lived monopoly on an invention deemed worthy of a patent in exchange for revealing the secret of his mechanism to the world.

One thing I have debated with people in various forums is the difference between trade secrets and patents. I have argued several times that without patents people would keep their inventions secret as long as possible. Many inventions are difficult or impossible to reverse engineer without knowing how they were made. I have recently run across several articles in journals and web sites noting that the use of trade secrets is increasing significantly. Further, there are seminars and books popping up that explain how to best protect your inventions with trade secrets while selling them to the public. Amazing how it was so easy to predict increased secrecy with the pressure on patents. Extrapolate what would happen if patents were completely eliminated. Companies, research organizations and universities would be a complete lock down on technology, and innovation in some areas would slow significantly.

Lonnie, I'm not disputing that it was a novel arrangement of pistons and gears, an arrangement that hadn't been seen before. But that's still all it was.

Similarly, a business method patent might be novel too. Maybe no one had demonstrated a system before with which you could order items with a single click. But so what? Does that make it any less absurd to patent a business method that anyone can do (once they know what it is)? Or to patent an arrangement of parts that anyone with a suitably equipped garage can put together (once they know which parts and how to arrange them)?

"Do I defend the patent provided to Diesel? Why not?"

Because it's hypocritical to defend that one while arguing against business method patents. Why should an easily reproduced arrangement of gears and pistons be any more patentable than an easily reproduced business model or method of swinging, if novelty is all that matters?

"I have argued several times that without patents people would keep their inventions secret as long as possible. Many inventions are difficult or impossible to reverse engineer without knowing how they were made."

Then here's a modest proposal: require anyone who wants a patent to (1) produce the covered device and (2) submit it to a panel of experts. If the experts are able to reverse engineer it within, say, 6 months, the device is not patentable. That would take care of trolls who patent things they have no intention or capability to manufacture, patents on impossible inventions (e.g. perpetual motion machines), and patents on inventions for which the public derives no benefit from the patent.

Do you think a diesel engine is the sort of device that can't be reverse engineered without knowing how it was made? I'm no mechanical engineer, but I bet anyone who was familiar with the other contemporary IC engines could've done it.

Jesse:

The reason I struggle with business method patents is that there is very little information about processes that business have done for years, so how can you tell a business method is patentable? Also, many business method patents I have seen just embody a procedure. Patent on process to go to the restroom? Please.

I also struggle with many software patents for the same reason. I programmed intensively from the mid-70's to the mid-80's. NONE of that software ever saw the light of day, but was used internally. Could anyone have duplicated what I did, given a comparable amount of time and the requirements? Absolutely. The code might have been written a little differently, but other than the physics equations and numerical analysis portions, only modest challenges for a decent programmer.

As for the diesel engine, when it was first invented I doubt seriously if gasoline engine "experts" of the day could have easily reverse engineered the diesel engine in anything less than a couple of years (actually, it took anywhere from several years to a decade to reverse engineer, even with the help of the instruction from patents, depending on how you define the starting point).

As for your "six month rule," I struggle with that a little bit. I have seen inventions that were absolutely not obvious, until you had the hindsight of the patent, then you saw to yourself, "Why didn't I think of that?" The answer is obvious, because you were caught up in your own paradigms.

The court in In Re Kubin addressed this very issue when it tried to explain when something might be "obvious to try" and yet was not obvious. Choosing one solution of thousands or more and having it work might well be "obvious to try," and yet lead to a non-obvious solution. They also defined exploration of new technology as possibly being obvious to try and yet non-obvious. Diesel engines 120 years ago would have fallen into the latter category.

Excuse me, why is the guy in favor of patents arguing that it's extremely difficult to reverse engineer and the guy against patents arguing that it's really easy to reverse engineer?

Kid:

All things are in a spectrum. There are things that are incredibly easy to reverse engineer; especially the so-called "incremental improvement." One glance and you understand how to duplicate the mechanism.

On the opposite end of the scale are relatively complex machines like an engine or the first video games. How long would it take you to sketch out the schematic of pong - the first successful video game, I believe - figure out how the drivers were accomplished along with the programming, and then duplicating the game? I suspect at least weeks, and perhaps months.

On the other hand, people were working on versions of the diesel after Rudolf Diesel revealed his first version to the world. However, it took years for alternative versions to be developed because the diesel engine is quite a complicated beast - it looks simple into you realize that the pressures required to ignite the fuel are in the thousands of psi and that pressure drives the requirements for many of the components that make a diesel extremely difficult to design if you have never designed one before. For example, Clessie Cummins was working on a fuel injector design for nearly two decades before he got one that satisfied him, which was about 40 years after the diesel was first revealed to the world.

As for Jesse and I, we are merely discussing parameters. In a way, reverse engineering is somewhat independent of patents, though it does relate to trade secrets. After all, regardless of whether patents exist, there will always be a drive to figure out how a mechanism works if it has market value to be to copy it, if patents did not exist, or to make it better or cheaper if they do exist. That leads into a whole other discussion, such as the increased emphasis on trade secrets in the manufacturing community, exemplified by a number of articles in journals and intellectual property organizations.