Eminent Domain and Software Patents Again

by on July 22, 2007 · 42 comments

Mark Blafkin is confused about my analogy between eminent domain and software patents, which probably means I didn’t explain the analogy very clearly. So let me see if I can be more explicit.

The way modern “redevelopment” projects work is that a large developer will go to a city and say “We would like to develop a new shopping mall/office park/apartment complex/whatever in such-and-such a neighborhood. But we’re only willing to do so if you give us control over all development within that neighborhood. We don’t want to worry about some other company building something in the neighborhood that we didn’t plan for.”

The city will then scrutinize the application, go through some legal technicalities such as declaring the neighborhood to be “blighted” (which, with enough ingenuity almost any neighborhood can be), and then sign a contract with the developer that essentially gives the developer a monopoly on development in the area. Any property owners who refuse to go along with the developer’s plans are removed using eminent domain.

Now, a company like Verizon will go to the patent office and say, in effect, “We would like to develop a new VoIP application. But we’re only willing to do so if you give us control over all development of VoIP applications like ours. We don’t want to worry about some other company building a competing product that we didn’t plan for.”


The USPTO will then scrutinize the application, go through some legal technicalities such as deciding whether the patent is “obvious” (which, with enough ingenuity almost any concept can be made unobvious), and then issue a patent to Verizon that essentially gives the them a monopoly on the development of VoIP applications. Any software companies that try to build a competing VoIP application are driven into bankruptcy with a patent infringement lawsuit.

Mark, there are some similarities here, don’t you think?

Frankly, I think Mark’s retort proves my point:

However, he should have to consult the owner of the land before he starts building on it.

We know that if a real estate developer wants to figure out who the owner of a piece of land is, he goes down to the county records office and looks up the entry for the land in question. While there are a few legal technicalities, a real estate developer can usually find the person—and there usually is just one person—he needs to talk to to get permission.

What’s the equivalent step for a software developer?

I’m seriously interested in what Mark has to say about this. Because it has me stumped. There certainly isn’t a single “property owner” you can talk to to get rights to all of the patents that might be implicated by a given software application. Moreover, there isn’t even a reliable procedure for getting a list of all of the dozens of people who hold patents that might be relevant. The closest thing is to spend tens of thousands of dollars hiring a patent lawyer to do an exhaustive patent search. But that will just give you a list of dozens of patents that might implicate your own. Many of the patents will be vague, only tangentially related to your software, or so broad that courts are likely to invalidate them. If you tried to negotiate licenses with all of them before getting started, you’d never get around to developing your application.

Ordinary property rights reduce uncertainty by creating clear rules about who you have to negotiate with before beginning a real estate development project. Patents, in contrast, cast a cloud of uncertainty over a software product by giving dozens of different people the potential to sue you for patent infringement with no easy way to find them and no way to be sure if a given patent covers your product or not. It’s downright silly to equate the two.

  • http://www.cato.org/people/harper.html Jim Harper

    I think I get the point of your analogy, Tim, but there are several layers of complexity (disanalogies, perhaps) that make this tough.

    The main point you’re trying to make, I think, is that patent overbreadth and related difficulties with patent search make it hard for a newcomer to the field to determine whose rights he or she might infringe. This would analogize to a real property system where there wasn’t reliable title recording. I believe that many countries in the Third World don’t have title recording, and property rights in land are quite a bit less reliable because of it. Land in such countries is a far riskier investment, and less investment happens, so the productivity of the country is deeply degraded.

    A strong disanalogy between this kind of abusive redevelopment and the patent system is the type of governmental decision-making being used. In redevelopment, it’s generally a more political process. The developer goes in advance to the relevant decision-maker and cuts a deal like you describe. The patent system is largely administrative: patent applicants don’t go make a deal with people at the patent office, but rather present documentation and arguments that will cause a patent to issue within a relatively tightly written set of rules.

    These two categories aren’t hermetically sealed. There are rules being administered in redevelopment proceedings, and undoubtedly there is some “patent politics” going on. But analogizing the patent process to redevelopment and eminent domain abuse brings in a lot of baggage from the venal, political world of redevelopment. This probably distracts from your point about the harm done by the obscurity of patent rights in the current system.

    Mark Blafkin’s response is probably not worth a rejoinder because he doesn’t respond to the substance of your point, just a nearby straw man.

    He’s provocative, though, placing the following words in your mouth: “Who cares about the thousands of companies around the world that own software patents!”

    I’ll respond in your partial defense, and point out that I don’t care one whit about the thousands of companies around the world that own software patents. I devote the small measure of care (in my generally black heart) to people. Companies, and the patent system, exist to produce things for people. If they are producing less than they should, I wouldn’t hesitate a moment (and certainly not because of “caring” for them) to change things so that they produce more.

  • http://enigmafoundry.wordpress.com/ enigma_foundry

    Well, as an Architect who has had experience delaing with exactly these types of projects (the re-development ones using eminient domain) I would add the Tim has it pretty well nailed. Sometimes extrmely skilled Architects can overcome that sad fact of unitary control of a site and by their skill, create something that is actually multivalent and beautiful. But that is rare.

    Better projects result from fragmentary control of a site.

  • http://www.cato.org/people/harper.html Jim Harper

    I think I get the point of your analogy, Tim, but there are several layers of complexity (disanalogies, perhaps) that make this tough.

    The main point you’re trying to make, I think, is that patent overbreadth and related difficulties with patent search make it hard for a newcomer to the field to determine whose rights he or she might infringe. This would analogize to a real property system where there wasn’t reliable title recording. I believe that many countries in the Third World don’t have title recording, and property rights in land are quite a bit less reliable because of it. Land in such countries is a far riskier investment, and less investment happens, so the productivity of the country is deeply degraded.

    A strong disanalogy between this kind of abusive redevelopment and the patent system is the type of governmental decision-making being used. In redevelopment, it’s generally a more political process. The developer goes in advance to the relevant decision-maker and cuts a deal like you describe. The patent system is largely administrative: patent applicants don’t go make a deal with people at the patent office, but rather present documentation and arguments that will cause a patent to issue within a relatively tightly written set of rules.

    These two categories aren’t hermetically sealed. There are rules being administered in redevelopment proceedings, and undoubtedly there is some “patent politics” going on. But analogizing the patent process to redevelopment and eminent domain abuse brings in a lot of baggage from the venal, political world of redevelopment. This probably distracts from your point about the harm done by the obscurity of patent rights in the current system.

    Mark Blafkin’s response is probably not worth a rejoinder because he doesn’t respond to the substance of your point, just a nearby straw man.

    He’s provocative, though, placing the following words in your mouth: “Who cares about the thousands of companies around the world that own software patents!”

    I’ll respond in your partial defense, and point out that I don’t care one whit about the thousands of companies around the world that own software patents. I devote the small measure of care (in my generally black heart) to people. Companies, and the patent system, exist to produce things for people. If they are producing less than they should, I wouldn’t hesitate a moment (and certainly not because of “caring” for them) to change things so that they produce more.

  • http://enigmafoundry.wordpress.com eee_eff

    Well, as an Architect who has had experience delaing with exactly these types of projects (the re-development ones using eminient domain) I would add the Tim has it pretty well nailed. Sometimes extrmely skilled Architects can overcome that sad fact of unitary control of a site and by their skill, create something that is actually multivalent and beautiful. But that is rare.

    Better projects result from fragmentary control of a site.

  • http://www.techliberation.com/ Tim Lee

    The main point you’re trying to make, I think, is that patent overbreadth and related difficulties with patent search make it hard for a newcomer to the field to determine whose rights he or she might infringe. This would analogize to a real property system where there wasn’t reliable title recording. I believe that many countries in the Third World don’t have title recording, and property rights in land are quite a bit less reliable because of it. Land in such countries is a far riskier investment, and less investment happens, so the productivity of the country is deeply degraded.

    Exactly. I don’t, however, think that this is a problem that a better patent registration system could solve. The fundamental problem is that software isn’t amenable to carving up into discrete, clearly defined “inventions” or “technologies.” Because of the way software works, the underlying “property rights” that software patents are trying to protect are intrinsically fuzzy and prone to over-broadness.

    A strong disanalogy between this kind of abusive redevelopment and the patent system is the type of governmental decision-making being used. In redevelopment, it’s generally a more political process. The developer goes in advance to the relevant decision-maker and cuts a deal like you describe. The patent system is largely administrative: patent applicants don’t go make a deal with people at the patent office, but rather present documentation and arguments that will cause a patent to issue within a relatively tightly written set of rules.

    This is a good point, but I think it can be overstated. While the patent office isn’t run by elected politicians, and so isn’t as political, it’s certainly subject to some of the same rent-seeking behaviors as city councils. A big part of being a good patent lawyer consists of knowing all the tricks required to get a dubious patent application the best possible treatment. As I understand it, a determined patent attorney has numerous ways of appealing a patent examiner’s rejection, or of re-submitting a proposal with modest changes. Moreover, I would not be shocked if there were back-scratching behavior in which being friends with USPTO officials increased your odds of getting your patent application approved.

    Having looked in detail at a couple dozen real-world software patents, I have my doubts about how “tightly written” the rules really are. At one time, the obviousness requirement may have been a serious impediment to getting overly broad patents, but recently (at least pre-Teleflex) the patent office and the Federal Circuit seem to have gone out of their way to adopt the most permissive obviousness rules they could. I think there’s a close parallel to the standards for “blight,” which may have been a relatively high bar for the use of eminent domain in the 1950s, but today allow developers to condemn pretty much any property they please. “Obvious,” like “blighted,” are adjectives whose legal meaning have come to bear very little relationship to their everyday meaning.

  • http://www.techliberation.com/ Tim Lee

    The main point you’re trying to make, I think, is that patent overbreadth and related difficulties with patent search make it hard for a newcomer to the field to determine whose rights he or she might infringe. This would analogize to a real property system where there wasn’t reliable title recording. I believe that many countries in the Third World don’t have title recording, and property rights in land are quite a bit less reliable because of it. Land in such countries is a far riskier investment, and less investment happens, so the productivity of the country is deeply degraded.

    Exactly. I don’t, however, think that this is a problem that a better patent registration system could solve. The fundamental problem is that software isn’t amenable to carving up into discrete, clearly defined “inventions” or “technologies.” Because of the way software works, the underlying “property rights” that software patents are trying to protect are intrinsically fuzzy and prone to over-broadness.

    A strong disanalogy between this kind of abusive redevelopment and the patent system is the type of governmental decision-making being used. In redevelopment, it’s generally a more political process. The developer goes in advance to the relevant decision-maker and cuts a deal like you describe. The patent system is largely administrative: patent applicants don’t go make a deal with people at the patent office, but rather present documentation and arguments that will cause a patent to issue within a relatively tightly written set of rules.

    This is a good point, but I think it can be overstated. While the patent office isn’t run by elected politicians, and so isn’t as political, it’s certainly subject to some of the same rent-seeking behaviors as city councils. A big part of being a good patent lawyer consists of knowing all the tricks required to get a dubious patent application the best possible treatment. As I understand it, a determined patent attorney has numerous ways of appealing a patent examiner’s rejection, or of re-submitting a proposal with modest changes. Moreover, I would not be shocked if there were back-scratching behavior in which being friends with USPTO officials increased your odds of getting your patent application approved.

    Having looked in detail at a couple dozen real-world software patents, I have my doubts about how “tightly written” the rules really are. At one time, the obviousness requirement may have been a serious impediment to getting overly broad patents, but recently (at least pre-Teleflex) the patent office and the Federal Circuit seem to have gone out of their way to adopt the most permissive obviousness rules they could. I think there’s a close parallel to the standards for “blight,” which may have been a relatively high bar for the use of eminent domain in the 1950s, but today allow developers to condemn pretty much any property they please. “Obvious,” like “blighted,” are adjectives whose legal meaning have come to bear very little relationship to their everyday meaning.

  • http://www.davidmcelroy.org/ David McElroy

    In my view, this analogy breaks down for one simple reason. In the case of eminent domain, there are existing owners who have property rights to the area of the development. In the case of a patent, it’s supposed to be granted only for something that is a new idea — before anyone else has gained rights to the idea. It’s more like homesteading new and undeveloped territory than eminent domain. I would agree that patents are being granted far too widely today (and I’d even agree that there are other problems with patents), but this analogy just doesn’t work, IMO.

  • http://www.davidmcelroy.org/ David McElroy

    In my view, this analogy breaks down for one simple reason. In the case of eminent domain, there are existing owners who have property rights to the area of the development. In the case of a patent, it’s supposed to be granted only for something that is a new idea — before anyone else has gained rights to the idea. It’s more like homesteading new and undeveloped territory than eminent domain. I would agree that patents are being granted far too widely today (and I’d even agree that there are other problems with patents), but this analogy just doesn’t work, IMO.

  • http://www.techliberation.com/ Tim Lee

    David, the key phrase is “supposed to be.” In practice, the lack of an independent invention defense means that software patents frequently wind up giving a patent holder control over technology that they had no hand in developing, as in the Verizon/Vonage and NTP/RIM cases. I bet Vonage feels just as blindsided by Verizon’s patents as a property owner feels on learning that his land is in a “redevelopment” area.

  • http://linuxworld.com/community/ Don Marti

    “What’s the equivalent step for a software developer?”

    Clearly the next step is to go to the contractors who are family members or buddies of the County Redevelopment Commission, and subcontract some of your project to them so that you’ll get a smooth ride through the political process — whether or not those contractors actually end up doing any work.

    I mean, the next step is go to several large patent holders, and sign cross-licensing deals promising some of your revenue to them — whether or not any of their patents actually affect your project.

  • http://www.techliberation.com/ Tim Lee

    David, the key phrase is “supposed to be.” In practice, the lack of an independent invention defense means that software patents frequently wind up giving a patent holder control over technology that they had no hand in developing, as in the Verizon/Vonage and NTP/RIM cases. I bet Vonage feels just as blindsided by Verizon’s patents as a property owner feels on learning that his land is in a “redevelopment” area.

  • http://linuxworld.com/community/ Don Marti

    “What’s the equivalent step for a software developer?”

    Clearly the next step is to go to the contractors who are family members or buddies of the County Redevelopment Commission, and subcontract some of your project to them so that you’ll get a smooth ride through the political process — whether or not those contractors actually end up doing any work.

    I mean, the next step is go to several large patent holders, and sign cross-licensing deals promising some of your revenue to them — whether or not any of their patents actually affect your project.

  • http://weblog.ipcentral.info/ Noel

    After abusing the terms “monopoly” (for which Tim will use at least 5 meaning in one paragraph), “obviousness” (for which Tim has his own standard w/r/t patents, he’ll simplify a patent claim and then declare his summary obvious), and “centralization” (can Tim just explain when and to what extent decentralization is beneficial, rather than touting it as an end-in-itself) the most mis-used term used by Tim is “analogy.”

  • http://weblog.ipcentral.info/ Noel

    ***I don’t care one whit about the thousands of companies around the world that own software patents. I devote the small measure of care to people. Companies, and the patent system, exist to produce things for people. If they are producing less than they should, I wouldn’t hesitate a moment to change things so that they produce more.***

    Jim Haper, thats a pretty strong statement. Is this a war on producers you’re waging?

    It will not help society to badger producers. Vote with your wallet, rather than hounding them with ideology.

  • http://weblog.ipcentral.info/ Noel

    After abusing the terms “monopoly” (for which Tim will use at least 5 meaning in one paragraph), “obviousness” (for which Tim has his own standard w/r/t patents, he’ll simplify a patent claim and then declare his summary obvious), and “centralization” (can Tim just explain when and to what extent decentralization is beneficial, rather than touting it as an end-in-itself) the most mis-used term used by Tim is “analogy.”

  • http://weblog.ipcentral.info/ Noel

    ***I don’t care one whit about the thousands of companies around the world that own software patents. I devote the small measure of care to people. Companies, and the patent system, exist to produce things for people. If they are producing less than they should, I wouldn’t hesitate a moment to change things so that they produce more.***

    Jim Haper, thats a pretty strong statement. Is this a war on producers you’re waging?

    It will not help society to badger producers. Vote with your wallet, rather than hounding them with ideology.

  • http://blog.actonline.org/ Jonathan Zuck

    Well this discussion is certainly “all over the road.” (that’s technically a metaphor by the way, rather than a simile..or is it a movie reference?) In any case, as we delve into the depths of what it’s really like to manage large scale development projects, we begin to see some of the essential weaknesses of analogies and their potential misuse. As Harper correctly pointed out, it’s very convenient to take something with huge political baggage and draw a thin thread to it in an attempt at guilt by association. So perhaps it’s time in this discussion to set aside the analogies and just look at the facts. Fact, software patents have been around a long time. Fact, the software industry has not ground to a halt. Fact, there are plenty of inventions with thousands of patents associated with them including cars and MRI machines. Fact, most software development does not touch the patent system as it involves production, not innovation. Fact, if you believe you are bringing something innovative to the market, it should perhaps be harder to prove that fact that it is currently. Fact, that’s being worked on. Fact, the norm of the system is licensing, NOT litigation and the system is mostly working. Fact, an in depth discussion of large scale real estate redevelopment might be an example of over expansive surveying…sorry.

  • http://www.techliberation.com/ Tim Lee

    Jonathan, I apologize if you think the link is too tenuous. I use this blog as a sounding board for ideas I have, and some ideas are better than others. I still think fleshing out some of the similarities and differences is illuminating.

    Fact, software patents have been around a long time. Fact, the software industry has not ground to a halt.

    I don’t understand how this is relevant. The real estate development industry hasn’t ground to a halt either. But that doesn’t prove that large-scale “redevelopment” projects aren’t harmful.

    Fact, there are plenty of inventions with thousands of patents associated with them including cars and MRI machines.

    I don’t know much about the automotive or MRI industries. The Teleflex case certainly suggests that the automotive industry has had some of the same problems with overbroad patents. One important difference is that there are very few startups making automobiles. For Ford, the expense of the patent system is a relatively small portion of the cost of producing a car. For a company that consists of two guys with $50,000 in the bank, a $10,000 patent search or patent application is a serious burden.

    Fact, most software development does not touch the patent system as it involves production, not innovation.

    I don’t have any idea what this means. As far as I know, the fact that your software doesn’t involve innovation is not a defense to a patent infringement lawsuit. As we can see from the Vonage case, the fact that you choose not to touch the patent system doesn’t mean that the patent system won’t touch you.

    Fact, the norm of the system is licensing, NOT litigation and the system is mostly working.

    The same can be said of eminent domain. Very few property owners in an eminent domain case actually go to condemnation. Most property owners “voluntarily” sign contracts to sell their property under the threat of eminent domain, just as most software firms sign patent licensing agreements “voluntarily” under the threat of a patent infringement suit. In either case, the relevant measure is the number of threats, not the number of lawsuits.

  • http://www.cato.org/people/harper.html Jim Harper

    Welcome, Johnathan! Glad to have you commenting. And such a font of facts!

    To briefly echo Tim’s response to facts 1 & 2 (software patents haven’t ground the software industry to a halt), the issue is whether, on the margin, we’re getting all we could out of software produceers given the current system. Or is it a blight on productivity that should be razed? (kill me now for that gawdawful metaphor . . .)

  • http://blog.actonline.org/ Jonathan Zuck

    Well this discussion is certainly “all over the road.” (that’s technically a metaphor by the way, rather than a simile..or is it a movie reference?) In any case, as we delve into the depths of what it’s really like to manage large scale development projects, we begin to see some of the essential weaknesses of analogies and their potential misuse. As Harper correctly pointed out, it’s very convenient to take something with huge political baggage and draw a thin thread to it in an attempt at guilt by association. So perhaps it’s time in this discussion to set aside the analogies and just look at the facts. Fact, software patents have been around a long time. Fact, the software industry has not ground to a halt. Fact, there are plenty of inventions with thousands of patents associated with them including cars and MRI machines. Fact, most software development does not touch the patent system as it involves production, not innovation. Fact, if you believe you are bringing something innovative to the market, it should perhaps be harder to prove that fact that it is currently. Fact, that’s being worked on. Fact, the norm of the system is licensing, NOT litigation and the system is mostly working. Fact, an in depth discussion of large scale real estate redevelopment might be an example of over expansive surveying…sorry.

  • http://www.cato.org/people/harper.html Jim Harper

    Noel, maybe pictures will help illustrate the meanings of words. The absence of care is not the presence of war. I’m going to stick with my pro-people ideology.

  • http://www.techliberation.com/ Tim Lee

    Jonathan, I apologize if you think the link is too tenuous. I use this blog as a sounding board for ideas I have, and some ideas are better than others. I still think fleshing out some of the similarities and differences is illuminating.

    Fact, software patents have been around a long time. Fact, the software industry has not ground to a halt.

    I don’t understand how this is relevant. The real estate development industry hasn’t ground to a halt either. But that doesn’t prove that large-scale “redevelopment” projects aren’t harmful.

    Fact, there are plenty of inventions with thousands of patents associated with them including cars and MRI machines.

    I don’t know much about the automotive or MRI industries. The Teleflex case certainly suggests that the automotive industry has had some of the same problems with overbroad patents. One important difference is that there are very few startups making automobiles. For Ford, the expense of the patent system is a relatively small portion of the cost of producing a car. For a company that consists of two guys with $50,000 in the bank, a $10,000 patent search or patent application is a serious burden.

    Fact, most software development does not touch the patent system as it involves production, not innovation.

    I don’t have any idea what this means. As far as I know, the fact that your software doesn’t involve innovation is not a defense to a patent infringement lawsuit. As we can see from the Vonage case, the fact that you choose not to touch the patent system doesn’t mean that the patent system won’t touch you.

    Fact, the norm of the system is licensing, NOT litigation and the system is mostly working.

    The same can be said of eminent domain. Very few property owners in an eminent domain case actually go to condemnation. Most property owners “voluntarily” sign contracts to sell their property under the threat of eminent domain, just as most software firms sign patent licensing agreements “voluntarily” under the threat of a patent infringement suit. In either case, the relevant measure is the number of threats, not the number of lawsuits.

  • http://www.cato.org/people/harper.html Jim Harper

    Welcome, Johnathan! Glad to have you commenting. And such a font of facts!

    To briefly echo Tim’s response to facts 1 & 2 (software patents haven’t ground the software industry to a halt), the issue is whether, on the margin, we’re getting all we could out of software produceers given the current system. Or is it a blight on productivity that should be razed? (kill me now for that gawdawful metaphor . . .)

  • http://blog.actonline.org Mark Blafkin

    Mark Blafkin is confused about my analogy between eminent domain and software patents, which probably means I didn’t explain the analogy very clearly.  So let me see if I can be more explicit.

    You made your analogy very clearly the first time, actually.  Rather than make it more explicit this time, you completely changed it.  The first time you tried to put lawyers at the center of your evil patent conspiracy, making it all about their self-importance:

    It seems to me that the attitudes of patent lawyers to the software industry are strikingly similar to the attitudes of city council members toward real estate developers. Patent lawyers are absolutely horrified at the idea that we would just let programmers write any kind of software they wanted without hiring a patent lawyer first.

    This time, you at least drop the straw man of the lawyer-conspiracy, but create an equally fictitious scenario with a company (in this case Verizon)  at the center:

    Now, a company like Verizon will go to the patent office and say, in effect, “We would like to develop a new VoIP application. But we’re only willing to do so if you give us control over all development of VoIP applications like ours. We don’t want to worry about some other company building a competing product that we didn’t plan for.”

    For someone who writes about patents as much as you do, I’m sure you’re aware that the above paragraph has no basis in reality.  No patenter goes into the patent office and makes a bargain with the PTO about market competition. In fact, the big flaw in your little example is that Verizon would have already had to INVENT their VOIP technology before they even walked into the doors of the PTO. They can’t go into the PTO and threaten NOT to invent it unless they get a patent first.   I know you have a bee in your bonnet about Verizon and its VOIP patents, but if you think they are using it anti-competitively, well that’s what competition law is for.  But, are you seriously suggesting that we should ban all patents simply because some firms may use them to undermine the public good? Should we ban all guns simply because some people may use them to kill innocent children?  If that’s your argument, fine… but own up to it. 

    You know all this and should be a little more honest about it, rather than trying to simply create a bogeyman out of the patent system.  I’m sure it helps your hit counts, but it does nothing to promote educated dialogue. 

    In reality, the decision to invest in new technologies is predicated on a belief that the investor will receive a return on that investment.  That investment can represent the time spent by the individual inventor, 5 million in venture capital, an allocation of corporate/government R&D funds to a specific project, or a $100 million IPO.  Since we live in a capitalistic economy, that return is usually in the form of capital (although in some cases like Free Software it could be "credit" or "community participation," and some inventors are simply just driven).   

    So the ability to patent and protect the inventions of a company or an individual (Yes, Jim… people get patents too) often play an important role in whether investment is made in developing them.  That bargain may be with the inventor’s husband or her VC, but the ability to patent and protect the invention in the future(if it turns out to work and be new and nonobvious) is often an important aspect of the decision-making process to invest on the front end.

    Is the patent system working optimally to promote inventions in the software space?? Heck no!  You’re right that are serious issues regarding the breadth of some claims and the overlapping nature of others.  But is that really a reason that for scrapping the whole thing as you often suggest?  If so, we should scrap the entire system of land ownership in any town where there are disputes over plot boundaries.  Or any city where the city hall where the records aren’t easily accessible…

  • http://www.cato.org/people/harper.html Jim Harper

    Noel, maybe pictures will help illustrate the meanings of words. The absence of care is not the presence of war. I’m going to stick with my pro-people ideology.

  • http://www.cato.org/people/harper.html Jim Harper

    I don’t know for sure, but I don’t think that Tim has suggested “scrapping the whole [patent system].” It could be that his . . . challenging analogy has caused others to overread his point.

    Given the good character of all, we’re not likely to affirm Godwin’s law here, but I don’t see a lot of good coming out of this. I suggest dropping the whole thread and resorting to tighter, more precious analogies, followed by more careful responses to the direct points being made.

    It’s less fun – doesn’t get the blood boiling – but it could be useful.

  • http://blog.actonline.org Mark Blafkin

    Mark Blafkin is confused about my analogy between eminent domain and software patents, which probably means I didn’t explain the analogy very clearly.  So let me see if I can be more explicit.

    You made your analogy very clearly the first time, actually.  Rather than make it more explicit this time, you completely changed it.  The first time you tried to put lawyers at the center of your evil patent conspiracy, making it all about their self-importance:

    It seems to me that the attitudes of patent lawyers to the software industry are strikingly similar to the attitudes of city council members toward real estate developers. Patent lawyers are absolutely horrified at the idea that we would just let programmers write any kind of software they wanted without hiring a patent lawyer first.

    This time, you at least drop the straw man of the lawyer-conspiracy, but create an equally fictitious scenario with a company (in this case Verizon)  at the center:

    Now, a company like Verizon will go to the patent office and say, in effect, “We would like to develop a new VoIP application. But we’re only willing to do so if you give us control over all development of VoIP applications like ours. We don’t want to worry about some other company building a competing product that we didn’t plan for.”

    For someone who writes about patents as much as you do, I’m sure you’re aware that the above paragraph has no basis in reality.  No patenter goes into the patent office and makes a bargain with the PTO about market competition. In fact, the big flaw in your little example is that Verizon would have already had to INVENT their VOIP technology before they even walked into the doors of the PTO. They can’t go into the PTO and threaten NOT to invent it unless they get a patent first.   I know you have a bee in your bonnet about Verizon and its VOIP patents, but if you think they are using it anti-competitively, well that’s what competition law is for.  But, are you seriously suggesting that we should ban all patents simply because some firms may use them to undermine the public good? Should we ban all guns simply because some people may use them to kill innocent children?  If that’s your argument, fine… but own up to it. 

    You know all this and should be a little more honest about it, rather than trying to simply create a bogeyman out of the patent system.  I’m sure it helps your hit counts, but it does nothing to promote educated dialogue. 

    In reality, the decision to invest in new technologies is predicated on a belief that the investor will receive a return on that investment.  That investment can represent the time spent by the individual inventor, 5 million in venture capital, an allocation of corporate/government R&D funds to a specific project, or a $100 million IPO.  Since we live in a capitalistic economy, that return is usually in the form of capital (although in some cases like Free Software it could be "credit" or "community participation," and some inventors are simply just driven).   

    So the ability to patent and protect the inventions of a company or an individual (Yes, Jim… people get patents too) often play an important role in whether investment is made in developing them.  That bargain may be with the inventor’s husband or her VC, but the ability to patent and protect the invention in the future(if it turns out to work and be new and nonobvious) is often an important aspect of the decision-making process to invest on the front end.

    Is the patent system working optimally to promote inventions in the software space?? Heck no!  You’re right that are serious issues regarding the breadth of some claims and the overlapping nature of others.  But is that really a reason that for scrapping the whole thing as you often suggest?  If so, we should scrap the entire system of land ownership in any town where there are disputes over plot boundaries.  Or any city where the city hall where the records aren’t easily accessible…

  • http://blog.actonline.org Mark Blafkin

    Jim, you really should read your boy’s stuff more often. Some of it is actually pretty good. You know he was recently featured on the op-ed pages of the NYT, right?

    If not, you should definitely give it a read. In it he says:

    But don’t software companies need patent protection? In fact, companies, especially those that are focused on innovation, don’t: software is already protected by copyright law, and there’s no reason any industry needs both types of protection.

    So, yes…he has been advocating for “razing” software patents across the board. Oh, and here are a few more examples if some clever anti-software patent screeds from your colleague in case you want to catch up:

    http://www.techliberation.com/archives/027496.php

    http://www.techliberation.com/archives/037887.php

    http://www.techliberation.com/archives/039663.php

  • http://www.cato.org/people/harper.html Jim Harper

    I don’t know for sure, but I don’t think that Tim has suggested “scrapping the whole [patent system].” It could be that his . . . challenging analogy has caused others to overread his point.

    Given the good character of all, we’re not likely to affirm Godwin’s law here, but I don’t see a lot of good coming out of this. I suggest dropping the whole thread and resorting to tighter, more precious analogies, followed by more careful responses to the direct points being made.

    It’s less fun – doesn’t get the blood boiling – but it could be useful.

  • http://linuxworld.com/community/ Don Marti

    Mark, please don’t dismiss the motives of Free Software developers as just “credit” or “community participation”. Free Software developers do seek money from a variety of business models.

    Dismissing free software developers’ motives as non-economic just makes it easier for rent-seekers on the pro-patent side to argue for ignoring their interests.

  • http://blog.actonline.org Mark Blafkin

    Jim, you really should read your boy’s stuff more often. Some of it is actually pretty good. You know he was recently featured on the op-ed pages of the NYT, right?

    If not, you should definitely give it a read. In it he says:

    But don’t software companies need patent protection? In fact, companies, especially those that are focused on innovation, don’t: software is already protected by copyright law, and there’s no reason any industry needs both types of protection.

    So, yes…he has been advocating for “razing” software patents across the board. Oh, and here are a few more examples if some clever anti-software patent screeds from your colleague in case you want to catch up:

    http://www.techliberation.com/archives/027496.php

    http://www.techliberation.com/archives/037887.php

    http://www.techliberation.com/archives/039663.php

  • http://blog.actonline.org Mark Blafkin

    Don,

    I did not intend to imply that all Free Software developers were motivated by non-economic issues. I know many Free Software developers that make a solid living through consulting and developing custom FS applications.

    That note was meant to preempt the usual “we don’t need traditional monetary rewards to incent innovation” retort that I hear as a reason that we don’t need patents. I just wanted to mention that I recognize there are non-economic rewards that may spur the investment of time and resources. But, even those can be translated into economic rewards at some point (ie. Fame can lead to higher consulting fees…etc.).

  • http://linuxworld.com/community/ Don Marti

    Mark, please don’t dismiss the motives of Free Software developers as just “credit” or “community participation”. Free Software developers do seek money from a variety of business models.

    Dismissing free software developers’ motives as non-economic just makes it easier for rent-seekers on the pro-patent side to argue for ignoring their interests.

  • http://www.techliberation.com/ Tim Lee

    Just to be clear, I do advocate scrapping the patent system with respect to the software industry. I do not advocate scrapping the patent system in general.

    Mark, I’m still interested in an answer to my question. What did you mean when you suggested that a software firm should do the equivalent of “consulting the owner of the land before he starts building on it?” If I’m inventing a new software product, how do I go about identifying who owns the relevant patents? And how much does your procedure cost a typical software startup?

  • http://blog.actonline.org Mark Blafkin

    Don,

    I did not intend to imply that all Free Software developers were motivated by non-economic issues. I know many Free Software developers that make a solid living through consulting and developing custom FS applications.

    That note was meant to preempt the usual “we don’t need traditional monetary rewards to incent innovation” retort that I hear as a reason that we don’t need patents. I just wanted to mention that I recognize there are non-economic rewards that may spur the investment of time and resources. But, even those can be translated into economic rewards at some point (ie. Fame can lead to higher consulting fees…etc.).

  • http://www.techliberation.com/ Tim Lee

    Just to be clear, I do advocate scrapping the patent system with respect to the software industry. I do not advocate scrapping the patent system in general.

    Mark, I’m still interested in an answer to my question. What did you mean when you suggested that a software firm should do the equivalent of “consulting the owner of the land before he starts building on it?” If I’m inventing a new software product, how do I go about identifying who owns the relevant patents? And how much does your procedure cost a typical software startup?

  • http://www.pff.org Noel

    ***Patents, in contrast, cast a cloud of uncertainty over a software product by giving dozens of different people the potential to sue you for patent infringement with no easy way to find them and no way to be sure if a given patent covers your product or not. It’s downright silly to equate the two.***

    1) patent searches will help, and if you can’t deal with some measure of uncertainty, innovation should not be your business (and neither should real estate investment for that matter:)

    2) Tim, can you name instances where the patent system has deterred R&D, or a start-up from entering a market?

    3) its questionable to equate eminent domain and the patent system, so I’m not sure why Tim is calling Mark’s argument silly when the whole basis of his post is oddball.

    4) Tim’s writings on patents suggest that the tech sector is hampered down, with little innovation and little investment in new activity. Hmmm, actually, that sounds like the FOSS market, the rest of the sector is doing fine- look at the stock market.

  • http://www.pff.org Noel

    ***Patents, in contrast, cast a cloud of uncertainty over a software product by giving dozens of different people the potential to sue you for patent infringement with no easy way to find them and no way to be sure if a given patent covers your product or not. It’s downright silly to equate the two.***

    1) patent searches will help, and if you can’t deal with some measure of uncertainty, innovation should not be your business (and neither should real estate investment for that matter:)

    2) Tim, can you name instances where the patent system has deterred R&D;, or a start-up from entering a market?

    3) its questionable to equate eminent domain and the patent system, so I’m not sure why Tim is calling Mark’s argument silly when the whole basis of his post is oddball.

    4) Tim’s writings on patents suggest that the tech sector is hampered down, with little innovation and little investment in new activity. Hmmm, actually, that sounds like the FOSS market, the rest of the sector is doing fine- look at the stock market.

  • Lewis Baumstark

    ***1) patent searches will help, and if you can’t deal with some measure of uncertainty, innovation should not be your business (and neither should real estate investment for that matter:)***

    First of all, patent applicants aren’t required to do extensive patent searches, so why should people developing products that *might* infringe? Second of all, Tim is talking about uncertainty arising from ill-defined property boundaries, not market uncertainty (which you allude to). This is minimal to non-existent in real-estate. A deed search is quite easy; I’ve done them myself.

    You continually fail, Noel, to explain why a developer should do a costly patent search simply to find out that their independently-developed product doesn’t accidentally infringe.

  • Lewis Baumstark

    ***1) patent searches will help, and if you can’t deal with some measure of uncertainty, innovation should not be your business (and neither should real estate investment for that matter:)***

    First of all, patent applicants aren’t required to do extensive patent searches, so why should people developing products that *might* infringe? Second of all, Tim is talking about uncertainty arising from ill-defined property boundaries, not market uncertainty (which you allude to). This is minimal to non-existent in real-estate. A deed search is quite easy; I’ve done them myself.

    You continually fail, Noel, to explain why a developer should do a costly patent search simply to find out that their independently-developed product doesn’t accidentally infringe.

  • http://weblog.ipcentral.info/ Noel

    Thats funny, after summarizing several dozen patent claims, and declaring those patents simple, Tim admits he’s confused about their boundaries.

    Lewis, I understood Tim to argue that uncertainty over property boundaries leads to uncertainty over market activity. A developer may be deterred from entering a market b/c he cannot ascertain whether or not he infringes on any patents, and thus is deterred from investing in commercialization activity.

    I for one would support some kind independent invention defense for patents (as well as a limited reverse engineering and fair use defense), but the fact of the matter is that a developer should do a patent search at some point b/c such a doctrine does not exist in patent policy.

    I believe we’re getting muddled up in hypothetical problems with the patent system. Most developers will not do patent searches b/c they know patent holders don’t have incentive to chase down all instances of possible infringement. Still, it would be responsible to do patent due diligence when development reaches the post-invention commercialization stage and seek out licensing arrangements with patent holders.

  • http://weblog.ipcentral.info/ Noel

    Thats funny, after summarizing several dozen patent claims, and declaring those patents simple, Tim admits he’s confused about their boundaries.

    Lewis, I understood Tim to argue that uncertainty over property boundaries leads to uncertainty over market activity. A developer may be deterred from entering a market b/c he cannot ascertain whether or not he infringes on any patents, and thus is deterred from investing in commercialization activity.

    I for one would support some kind independent invention defense for patents (as well as a limited reverse engineering and fair use defense), but the fact of the matter is that a developer should do a patent search at some point b/c such a doctrine does not exist in patent policy.

    I believe we’re getting muddled up in hypothetical problems with the patent system. Most developers will not do patent searches b/c they know patent holders don’t have incentive to chase down all instances of possible infringement. Still, it would be responsible to do patent due diligence when development reaches the post-invention commercialization stage and seek out licensing arrangements with patent holders.

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