Against Monopoly

defending the right to innovate

IP as a Joke

Monopoly corrupts. Absolute monopoly corrupts absolutely.

Copyright Notice: We don't think much of copyright, so you can do what you want with the content on this blog. Of course we are hungry for publicity, so we would be pleased if you avoided plagiarism and gave us credit for what we have written. We encourage you not to impose copyright restrictions on your "derivative" works, but we won't try to stop you. For the legally or statist minded, you can consider yourself subject to a Creative Commons Attribution License.

current posts | more recent posts | earlier posts

Microsoft Wants Galactic Patent

Despite a potentially crippling patent injunction against selling Word that Microsoft is battling on appeal, Microsoft, via a senior lawyer, is nevertheless calling for a global patent system "to make it easier and faster for corporations to enforce their intellectual property rights around the world". Yep--despite the big hit they just took due to i4i's patent, Microsoft is concerned about the "unmanageable backlogs and interminable pendency periods" of national patent systems, which have 3.5 million patents pending. You heard that right--Microsoft thinks more is "needed to be done to allow corporations to protect their intellectual property." What, do they want i4i to be able to get sextuple, instead of just triple, damages? To jail Microsoft board members?

Microsoft's lawyer repeats the tired old bunk about patents being necessary to promote innovation, yada yada -- "By facing the challenges, realizing a vision, overcoming political barriers, and removing procedural obstacles we can build a global patent system that will promote innovation, enrich public knowledge, encourage competition and drive economic growth and employment."

Two good things about this: (a) a global system would, possibly, reduce the number of patent lawyers; and (b) I was feeling sorry for Microsoft over the Word injunction, but now don't need to anymore.

Update: Let me add that I think this has no chance of happening. The patent lawyers in countries around the world would block it. The way the system works now, you file a patent application first in your home country, and within a year or two (depending on whether you use the Patent Cooperation Treaty (PCT) or Paris Convention procedures), you can file corresponding patent applications in other countries or regions claiming a priority date based on your first country's filing date. But you have to pay filing fees, sometimes translation fees (which can be astronomical), local attorney fees, and local maintenance fees in each country you want the patent to issue in. Let's say it costs $15-20k for a patent to be filed and ultimately issued in the US. Well you might want to have the patent filed also in, say, the European Union, Japan, China, Brazil, Canada, India. So now we are up to well over $100k-200k. And that is not even global. Under a global system presumably you would file once and it would be enforceable in every country in the world party to the treaty. It might be more expensive than the current $20k for a single country but far less than cost of filing in multiple countries now. So presumably under a global system, you would file a patent infringement suit in the appropriate court, and if you win, you just take the judgment to local courts in whatever countries the defendant is competing with you and have that country's courts enforce the judgment as a mere formality.

This would make global patents easier and cheaper to get and easier and cheaper to enforce. Presumably people would want to use European or American local patent examining offices for quality purposes, so it would tend to put out of work the patent bar in "Southern" (third world) countries. You can expect a mobilized patent bar in most countries to fight this. Such proposals have been around for decades, and never go anywhere. Thank God for protectionist lawyers!

[Mises Blog cross-post; StephanKinsella.com cross-post]

Galambosian IP Recursion

I've noted before this nutty purported idea of hyper-IPer Andrew Galambos (see Galambos and Other Nuts; Against Intellectual Property, p. 27): Galambos
took his own ideas to ridiculous lengths dropping a nickel in a fund box every time he used the word "liberty" as a royalty to the descendants of Thomas Paine, the alleged "inventor" of the word "liberty"; and changing his original name from Joseph Andrew Galambos (Jr., presumably) to Andrew Joseph Galambos, to avoid infringing his identically-named father's rights to the name.
Now, this seems quite sensible. Galambos is right: every time you use "liberty," you should drop a nickel in the Thomas Paine Descendant Royalty box.

But I realized this the other day that since this nickel-depositing was Galambos's idea, then when you drop your nickel, you now must compensate Galambos himself. 15% seems like a reasonable commission; so in addition to the nickel for Paine, you better drop 2.25 cents in a box for Galambos's heirs.

But there's one more snag. The idea of recognizing that Galambos should be rewarded for his idea of rewarding word-coiners is my idea. So in addition to the 17.25 cents above, you need to send me an extra 0.3375 cents each time you pay Galambos's heirs their 2.25 cents.

[stephankinsella.com crosspost]

The Arbitrariness of Patent Law

As noted on Patently-O, the Supreme Court is set to address a question about the patentability of certain "processes"--whether the process has to be "tied" to a particular machine or apparatus, or transform a particular article into a different state or thing ("machine-or-transformation" test), to be eligible for patenting.

Now, I append below a summary of the various positions taken by various briefs filed in this case. The recommendations are all over the place. Examples like this should be considered by those libertarians who advocate IP and who think that "the courts" could just figure out the gray areas easily. They do not seem to realize this is purely artificial law, giving rise to insoluble questions--when the goal of the court is not to do justice, but to construe a decree of a legislature, you cannot expect just, or predictable, results. (For more on this, see my Legislation and the Discovery of Law in a Free Society, pp. 151 et seq.) As Kafka wrote, "Justice must stand quite still, or else the scales will waver and a just verdict will become impossible."

  • Yahoo (Bilski - Yahoo! Amicus Brief (S.Ct) (as filed) (8-6-09).pdf) The focus on physicality does not make sense in today's technology.
  • IBM (08-964 IBM.pdf) The proper test looks for a "technological contribution."
  • Regulatory Data Corp ( 08-964 Regulatory Datacorp et al..pdf) Brief by John Duffy focuses directly on the historical importance of the statutory test. "The government is now asking this Court to impose a formalistic restriction on definition of "process" that would create an unprecedented and uncertain judicial limitation on patentable subject matter. This Court should reject that invitation just as it did more than a third of a century ago, when the government unsuccessfully advanced the very same argument. See Gottschalk v. Benson, 409 U.S. 63, 71 (1972)."
  • Accenture (08-964 tsac Accenture and Pitney Bowes, Inc.pdf) Machine or transformation test is not a reliable indicator of anything relevant.
  • Austin IP Law Ass'n ( 08-964 Austin Intellectual Property Law Association.pdf) The patent statute explicitly defines process quite broadly in Section 100(b). The Federal Circuit's version of "process" in 35 U.S.C. § 101 is far narrower than the broad definition of "process" in 35 U.S.C. § 100(b) (2008).
  • Double Rock and other IP entities (08-964tsacdoublerockcorporation.pdf) The Federal Circuit test conflicts with Supreme Court precedent and Congressional intent.
  • Law Professors [Lemley et al.] (08-964ac20lawandbusinessprofessors.pdf) The distinction on patentable subject matter should be based on the distinction between applied and abstract inventions. Bilski's claims fail this test.
  • Chakrabarty (08-964 Chakrabarty.pdf) Brief by Scott Kieff and Richard Epstein argue that patent rights operate "like a beacon in the dark" to start conversations between innovative entities and potential users.
  • Franklin Pierce Law Center (Bilski.pdf) Court should adopt the "useful, concrete, and tangible result" test.
  • TeleCommunication Systems (08-964nsactelecommunicationsystemsinc.pdf) Subject matter eligibility should be predictably broad.
  • BIO, AdvaMed, WARF and U of Calif (08-964 tsac Biotechnology Industry Organization et al..pdf) Any decision should be clear that biotechnology is patentable.
  • Conejo Valley Bar Ass'n (08-964.ac.Conejo Valley Bar Association.pdf) The substantive elements of the patent act (102, 103, and 112) do all the necessary work.
  • Novartis (08-964tsacNovartisCorporation.pdf) A process of diagnosis should be patentable.
  • Dr. McDonough (08-964_PetitionerAmCuTMcDounough.pdf) "American innovation is not confined to Industrial Age mousetraps and other cleverly contrived gadgets. The modern economic agent is more likely to encounter innovation today in the services they consume than in the contraptions they use. The present amicus curiae suggests that the decision of the Federal Circuit in this case is an attempt to apply an Industrial Age standard to address a perceived Services Age problem, a problem that the present amicus curiae suggests does not exist."
  • State of Oregon (08-964_NeutralAmCuOregon.pdf) (The Patent Hawk filed this brief on behalf of all Oregonians - although apparently without any official state approval) The brief makes an important point: Although Section 101 comes first in the statute, it does not make sense to use it as a screening tool at the PTO. Rather, the PTO's skills are in comparisons of prior art and ensuring that the elements of Section 112 have been satisfied.
  • Chicago IP Law Ass'n (08-964 ac Intellectual Property Association of Chicago.pdf) There are strong parallels here with KSR; CAFC rule is too rigid.
  • Borland (Amicus Curiae Brief (Borland Software Corporation).pdf) The CAFC test does not properly follow Supreme Court precedent.
  • Time Systems (08-964 ac On Time Systems.pdf) Some abstract ideas should be patentable.
  • Monogram BioSciences and Genomic Health (08-964 ac Monogram Biosciences Inc.pdf) Patentable processes can be non-physical.
  • Sachs and Brownstone (08-964 ac Robert R. Sachs.pdf) The CAFC test is limits the patenting of software, and a bad result.
  • Boston Patent Law Association (08-964tsacbostonpatentlaw.pdf) A broad scope of patentable subject matter better preserves the health of an innovative culture; many landmark inventions fail the Federal Circuit's Bilski test.
  • Georgia Biomedical Partnership, Inc. (08-964 Georgia Biomedical Partnership Inc.pdf) The Supreme Court has consistently refused to offer a "rigid" test.
  • Dolby Labs (08-964 Dolby Laboratories et al..pdf) The important thing is to settle expectations.
  • Teles AG ( 08-964 Teles AG.pdf) Subject matter eligibility should be "dynamic." "Further, the global nature of today's economy strongly recommends that the United States patent system be harmonized with robust patent systems of other nations wherever possible."
  • Medtronic (08-964 Medtronic.pdf) Provides specific examples of medical innovations that may be unpatentable under the Federal Circuit test
  • Houston IPLA (08-964 Houston IP Law Assoc..pdf) The test negatively impacts Dell's "build-to-order" patent (5,963,743) ; AT&T's linear programming patent (4,744,028); and Sperry Corporation's LZW compression patent (4,558,302).
  • Intellectual Property Owners (08-964acintellectualproperty.pdf) Machine or transformation test is not the only test; In its transformation test for signals, the CAFC "unduly focuses on the contents of the data . . . rather than the manner in which those signals are generated;" a general purpose computer should be considered a "particular machine."
  • AIPLA ( 08-964 American Intellectual Property Law Association.pdf) A new exclusionary test is not needed.
  • Houston IPLA (08-964 Houston IP Law Assoc..pdf) The test negatively impacts Dell's "build-to-order" patent (5,963,743) ; AT&T's linear programming patent (4,744,028); and Sperry Corporation's LZW compression patent (4,558,302).
  • Armanta, Asentinel, Cybersource, and Hooked Wireless (08-964 Entrepreneurial Software Companies.pdf) Questions of patentability are causing software companies to lose value.
  • Mr. Meiers ( 08-964 Raymond C. Meiers.pdf) A patentable invention "applies manifestations of nature and achieves a useful result." This is the tripartite system.
  • Univ. South Florida ( 08-964 University of South Florida.pdf)
  • Awaken IP ( 08-964 AwakenIP.pdf) The CAFC test is unworkable and is as bad as the vague idea/expression dichotomy of copyright.
  • BSA ( 08-964 Business Software Alliance.pdf) Section 101 has been consistently and correctly interpreted to cover software innovations.
  • PhRMA, etc. ( 08-964 PhRMA et al..pdf) Medical processes should be patentable."
  • Caris Diagnostics ( 08-964 Caris Diagnostics, Inc.pdf) Diagnostic method patents are important and have been called into question by Bilski.
  • AIPPI (TooBig) A flexible test is better, and TRIPS requires a flexible standard.
  • FICPI ( 08-964 FICPI.pdf) "The § 101 analysis should focus on the section's substantive utilitarian requirement, rather than retrospectively attempting to rigidly define the categories of patentable subject matter without the foresight of the particular form technological innovations may take in the future.

[SK crosspost]

Centocor v. Abbott: Biggest Patent Verdict Ever.

From a post by Joe Mullin: Centocor v. Abbott: Biggest Patent Verdict Ever.:
This afternoon, a jury in Marshall, Texas, awarded the largest patent verdict in history: Abbott Laboratories must pay $1.67 billion to Centocor, a subsidiary of Johnson & Johnson, because its Humira arthritis treatment infringes U.S. Patent No. 7,070,775. ... The jury deliberated for five hours before issuing the verdict, which specifies $1.17 billion for lost profits and $504 million as a reasonable royalty.
As I noted here, referring to a $1.92 million verdict against Jammie Thomas for "illegally" sharing 24 songs, "The pro-IP libertarians ought to hang their heads in shame. If they support this result, it's unthinkably evil. If they oppose it-well, they really can't, can they, since this is the result of having a state-run IP system-of having a state at all."

[Cross-posted at StephanKinsella.com and Mises blog]

A Fight to Save Photo-Sharing Site

A report by Joe Mullin on the sad plight of Fotki and other photo-sharing sights being targeted by patent-wielder FotoMedia. When will IP supporters realize asserting patents is, in the words of the Fotki's Igor Shoifot, "evil."

[Cross-posted at StephanKinsella.com]

The IP Dogs!

The post Animal Abuse mentions the state's use of "DVD-sniffing anti-piracy dogs."

Res ipsa loquitur.

Watch your step now

Spotted over the xerox machine in the economics department office at Hong Kong University of Science and Technology

A State-Granted Property Right in Preventing Teenage Drunk Driving

As reported on Patently-O, two "inventors" have files patent applications on two "inventions". The first is for SoberTeen(TM) driving insurance. The application claims
a new auto insurance product where a driver receives a 10 to 30 percent discount in premium in exchange for allowing the insurance company to monitor his or her car to determine if anyone drives it while under the influence of alcohol.

I wonder what MADD would say about the patentee trying to use the courts to stop an insurance company from offering this product without paying a ransom?

The other attempts to claim a monopoly on

A method wherein the life or health risk of a person is evaluated based on information maintained in a Risk Profile Data Base (RPDB) and the result of said evaluation is used for one or both of the following purposes: to offer an insurance policy in an underwriting class determined by the said evaluation; to provide said person with a life or health expectancy report containing suggestions on how said person can improve said life or health expectancy.

Is any comment really needed?

Yet more IP celebrations

One way to avoid a hangover is to stay drunk. Just as the buzz from the celebrations of World Book and Copyright Day was fading, I joined the local World IP Day festivities.


Unfortunately, I couldn't attend the raucous parties held in that IP hotbed Kenya. Activities included the distribution of "copyright comics" to school students with a view to instilling respect for intellectual property rights.

Talk about long term copyright

(from Akin at Irdial...I think I'll just reproduce the email he got...)

Dear Irdial-Discs,

We have removed your document "An Inquiry into the Nature and Causes of the Wealth of Nations" because our text matching system determined that it was very similar to a work that has been marked as copyrighted and not permitted on Scribd.

Like all automated matching systems, our system is not perfect and occasionally makes mistakes. If you believe that your document is not infringing, please contact us at copyright@scribd.com and we will investigate the matter.

As stated in our terms of use, repeated incidents of copyright infringement will result in the deletion of your Scribd.com account and prohibit you from uploading material to Scribd.com in the future. To prevent us from having to take these steps, please delete from scribd.com any material you have uploaded to which you do not own the necessary rights and refrain from uploading any material you are not entitled to upload. For more information about Scribd.com's copyright policy, please read the Terms of Use located at http://www.scribd.com/terms

Jason Bentley

Directory of Community Development


For the record Adam Smith died in 1790 and nothing he wrote is currently under copyright any where in the world.

current posts | more recent posts | earlier posts


Most Recent Comments

Some history

Killing people with patents SYSSY

IIPA thinks open source equals piracy rerwerwerwer

IIPA thinks open source equals piracy Thank you for this great

Questions and Challenges For Defenders of the Current Copyright Regime Eu acho que os direitos autorais da invenção ou projeto devem ser

IIPA thinks open source equals piracy https://essaywritingsolutions.co.uk/

Your Compulsory Assignment for Tonight rerrerrr

IIPA thinks open source equals piracy rwerwewre

An analysis of patent trolls by a trademark lawyer

Questions and Challenges For Defenders of the Current Copyright Regime It is one of the finest websites I have stumbled upon. It is not only well developed, but has good

Killing people with patents I'm not really commenting the post, but rather asking if this blog is going to make a comeback

The right to rub smooth using a hardened steel tool with ridges Finally got around to looking at the comments, sorry for delay... Replying to Stephan: I'm sorry

Let's See: Pallas, Pan, Patents, Persephone, Perses, Poseidon, Prometheus... Seems like a kinda bizarre proposal to me. We just need to abolish the patent system, not replace

The right to rub smooth using a hardened steel tool with ridges I'm a bit confused by this--even if "hired to invent" went away, that would just change the default

Do we need a law? @ Alexander Baker: So basically, if I copy parts of 'Titus Andronicus' to a webpage without

Do we need a law? The issue is whether the crime is punished not who punishes it. If somebody robs our house we do

Do we need a law? 1. Plagiarism most certainly is illegal, it is called "copyright infringement". One very famous

Yet another proof of the inutility of copyright. The 9/11 Commission report cost $15,000,000 to produce, not counting the salaries of the authors.

WKRP In Cincinnati - Requiem For A Masterpiece P.S. The link to Amazon's WKRP product page:

WKRP In Cincinnati - Requiem For A Masterpiece Hopefully some very good news. Shout! Factory is releasing the entire series of WKRP in Cincinnati,