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May 4, 2009

Practicing

The objection absurd, but patents as tradable commodities has raised some ruckus, even as the loudest howler monkeys are disingenuously self-serving. The flip side of that same fake coin is that patent holders, including inventors, should be required to commercialize their invention. In other words, patents and products should be synonymous. Another boil of similar ilk is that reinvention should obviate infringement. Herein, dispelling such nonsensical notions.

One of the fundamental tenets of economics is that of specialization. Economic progress is essentially defined by allocating resources to efficient producers. Capitalism is a form of corporate meritocracy. The dynamics of business repeatedly illustrate the businesses fail when their competency is exceeded by their competitors.

The Supreme Court, in its indiscriminate KSR ruling, may have you think that the ordinary person is extraordinary, full of "inferences and creative steps." Not so. Look around you. Most folks don't have much brain wattage, nor the discipline to persevere with what creativity was afforded them. As the world's most prolific inventor, Thomas Edison, with 1,093 patents to his name, put it: "Genius is 1 percent inspiration and 99 percent perspiration."

Look at patents in any technical art area for practically any time frame, and the same names keep popping. Invention is seldom a one-off. Invention is a talent, a combination exuding inspiration and perspiration. Inventors are specialists in invention.

Thomas Edison never ran a company, never made a product, never sold anything but patents. To deny the right of return on investment for genius is to deny the highest aspiration of human existence: the power and beauty of creation.

Any company with a patent portfolio of any size has but a fraction of their claimed inventions in their products. The other inventions, those not used in products, are, in effect, a spillover of creativity. Savvy companies monetize their spillover inventions by licensing or selling those patents to other specialists who can use them by producing products, coveting only those patents related to core competency.

Proctor & Gamble, one of the world's largest consumer products companies, goes one better. It licenses all its patents, even the most valuable ones, keeping the most precious for only five years. P&G knows that keeps it on its toes. And P&G's patents have become a billion dollar a year brand unto itself.

Rationally, inventors should specialize in invention, and manufacturers specialize in productization. Where the two meet under the same roof is, as it should be, a lucrative coincidence to whoever owns the roof and what's under it.

Reinvention is the epitome of unproductivity, and so the idea of rewarding reinvention is antithetical to promoting technological progress. The patent system intends to accelerate invention. The very reason the patent system exists: to avoid reinvention.

The issue of reinvention raises one of the most serious problems with the patent system: it goes unused. Patents serve a public notice function: in return for telling the world how it's done, an inventor gets a limited-duration monopoly. The practice of governments granting patents is both universal and long-standing.

The root problem with patents is evasion. Companies, which should be eagerly scouring the patent roster for useful inventions, instead assiduously avoid reading the patent roll. "Come and get me" is the unspoken motto. The economic inefficiency of reinventing the wheel is mindlessly of no regard, as long as one doesn't have to pay for using someone else's wheel.

Most interestingly, as an economic and rational affront, this head-in-the-sand weaseling by corporations is both universal and long-standing. Almost tautologically, such irrationality is hard to explain, except as innate selfish behavior ubiquitously exhibited by each and every human infant that ever crawled on Earth. Some things that most folks just don't outgrow is trying to see what they can get away with. In other words, corruption is human nature. That this well-honed reflex should be packaged as a justification for evading patent infringement steps even deeper into the primordial bog.

Posted by Patent Hawk at May 4, 2009 5:14 PM | The Patent System

Comments

Posted by: Tamsus at May 4, 2009 6:17 PM

Tamsus,

Starting a company and running it are two very different things, as any business person can tell you.

Posted by: Patent Hawk at May 4, 2009 7:27 PM

"Thomas Edison never ran a company, never made a product, never sold anything but patents."

W A T?

HAWK, if nothing else you can not spread blatant misinformation!

Nevar forget! Concrete houses!

http://flyingmoose.org/truthfic/edison.htm

ftp://imgs.ebuild.com/woc/C650204.pdf

This isn't even the tip o' tha ice though.

Wait until you get a load of this!

Phonographs!

http://lcweb2.loc.gov/ammem/edhtml/edbio.html

Electric power stations! Etc, etc. The man did little but invent and market his products his whole adult life! And trust me, not only did he start some of those corps, he ran a few of them too. Especially the concrete corp. From what I recall he blew a huge portion of his personal wealth on running that company into the ground himself. Hard. Even so, even if he went around setting up corps and then leaving them all behind, that's better than not doing a dmn thing with your invention to bring it to me and the rest of the world who needs it so so so so badly amirite?

"Edison was active in business right up to the end. Just months before his death in 1931, the Lackawanna Railroad implemented electric trains in suburban service from Hoboken to Gladstone, Montclair and Dover in New Jersey. Transmission was by means of an overhead catenary system, with the entire project under Edison's guidance. "

From the wiki sure, but trust me, there's a lot of evidence of this to go around.

"Reinvention is the epitome of unproductivity, and so the idea of rewarding reinvention is antithetical to promoting technological progress."

Here I believe we must part ways on our respective paths of belief. If you invent something in California, or Japan today and I'm in Virginia tomorrow needing the invention, then how prey tell did your invention help me? Even assuming we look to the time when you're able to write it down and send in an application, I'm still looking at 2 years or so before I get a glimpse of it. How THE F does that help me? Or for that matter, the clients of my firm that need that invention so very badly? The invention has been made, but I need it now, I'm going to my laboratory in the back, and then when I come out in a week (or maybe a year, however long) with the same thing. Then I go to making the product for my customers. There was nothing "inefficient" about what I did, except in so far as you didn't pick up your telephone, dial a random number, get me on the other end and specifically tell me about the invention the minute I needed it.

Much in the same way, if you cut a tree down in seattle, and I need a tree in Virginia then what good does it do me (or the economy as a whole) if you can't transport it to me within a few minutes/days?

Bottom line, there is no inefficiency here excepting that which is mandated by life itself, or reality.

"The very reason the patent system exists: to avoid reinvention."

Maybe you aren't reading the same constitution I am over here. What does yours say in Article 1, section 8?

"The issue of reinvention raises one of the most serious problems with the patent system: it goes unused."

And why is that hawk? Because the system discourages it. We need to encourage that don't we in order to actually promote the progress of the useful arts?

"The economic inefficiency of reinventing the wheel is mindlessly of no regard, as long as one doesn't have to pay for using someone else's wheel."

Is there even a small glimmer of doubt in your mind that maybe, just maybe, inventing some things yourself is better than paying someone else to show you how to do it? Be honest here Hawk. You're a man with a company let's say. You have a production problem. What's your response? Throw up your hands and say idk idk, what can I do, what can I do? Or do you take the things you have in your workshop and work on the problem? Or, do you immediately decide to scour the patents that are out there in the hopes that maybe someone has discovered the answer, and you'll be able to find that answer in a short period of time, and be willing to pay him for his having found the answer?

Good grief. You called the old man insane. Trust me, if you put your post and his post in front of the congress I doubt very seriously they'll be agreeing with you. It is literally almost impossible to agree with you on these subjects because you take them way overboard. Saying things like reinvention is the pinnacle of inefficiency is ludicrous.

Posted by: 6000 at May 4, 2009 10:59 PM

"Much in the same way, if you cut a tree down in Seattle, and I need a tree in Virginia then what good does it do me (or the economy as a whole) if you can't transport it to me within a few minutes/days?"

6000,

You must be kidding.
If you're going to spout some of that freakonomics ideology, you need to go all the way.

Why don't you explain how lumber is a ubiquitous commodity in a global marketplace? Why don't you explain how "producing" lumber in Seattle increases the global supply and thus lowers costs to all, thanks to the magic woven by the Invisible Hand? Why don't you explain how "producing" inventions in any corner of the globalized free trade system enriches us all by increasing the level of competition in the marketplace of ideas and forces Coalition members to get off their fat arsses and start inventing like they used to in their start up days?

Oh, I forget. You are a paid puppet of the Coalition (or that sure seems to be the case with every one of your posts --when did you ever say something nice about individual inventors? other than your hero, TAE)

Posted by: step back at May 5, 2009 2:09 AM

step back,

I really don't believe that 6 is a paid puppet. If anything, the Coalition would pay to keep 6 silent, as his grasp of the issues and (mis)use of logic would be an affront even to them - let alone what a poor spokesperson he is.

He and his buddy Malcolm do what they do and are what they are - fools provocateur, court jesters, buffoons. And while Malcolm sticks close to his home at patently-o, 6 craps all over the place.

Posted by: Noise above Law at May 5, 2009 3:03 AM

Sorry, 6K is right, for once, about Edison, and Hawk is wrong. As children, we would often go to his research laboratory in Menlo Park, NJ. (That and Bell Labs were the places to be to learn about invention.) Edison was hands-on with all his companies.

http://ieeexplore.ieee.org/xpl/freeabs_all.jsp?arnumber=16810

The phonograph business (see the article 6K linked) showed he was as shrewd a manager as any Microsoft has employed (driving the old business he assumed into the ground, perhaps, so that his new business could rise).

Posted by: niRPa at May 5, 2009 4:35 AM

Corporations that make and sell products should be required to commercialize all of the inventions in all of their patents? Including alternative disclosed and claimed embodiments?

Posted by: John Prosecutor at May 5, 2009 12:14 PM

"You must be kidding.
If you're going to spout some of that freakonomics ideology, you need to go all the way."

I actually never read anything but the back of that book, but I did mean to read the rest of it as it was a bestseller while I was working at a bookstore. I think I read Contra 2 instead about bush's bluncer in Iraq.

"Why don't you explain how lumber is a ubiquitous commodity in a global marketplace? Why don't you explain how "producing" lumber in Seattle increases the global supply and thus lowers costs to all, thanks to the magic woven by the Invisible Hand? Why don't you explain how "producing" inventions in any corner of the globalized free trade system enriches us all by increasing the level of competition in the marketplace of ideas and forces Coalition members to get off their fat arsses and start inventing like they used to in their start up days?"

I could agree with you a bit on the lumber supply thing, but increasing the number of patents (or even inventions total for that matter) doesn't make bigcorp get off it's arse n innovate like they did when they were younger because there is no garuntee that any of those patents/inventions are worth a dmn. And, in fact, whilst many of you will spout off about the non-innovativeness of bigcorps from what I can see it isn't that they don't innovate, it is that they do it slower. That is to be expected. You don't expect a whale to out manuever and outspeed a dolphin. Nor an elephant a cheetah. The two entities are made for different functions.

So in summary, and in response to your ending question:

"Why don't you explain how "producing" inventions in any corner of the globalized free trade system enriches us all by increasing the level of competition in the marketplace of ideas and forces Coalition members to get off their fat arsses and start inventing like they used to in their start up days?"

I won't explain that because I don't believe that it does, I'll leave it up to you to explain such hogwash. You can begin with explaining how more patents/inventions "increas[e] the level of competition in the marketplace of ideas". Then you can tell us how that increased level forces companies to do anything except maybe pay out some settlements and or have to deal with litigation.

In sum, I don't think that the patent system forces bigcorp to do anything. And I don't think that giving inventors who are faster and more nimble at innovating than the giants a patent is doing me any good (or the economy any good) if we don't get some products or services from the person with the monopoly on making those products and services within a short time period giving the giants time to catch up and invent the same thing and deliver it to me.

"You are a paid puppet of the Coalition"

I wish, you know those rich guys pay good! But I am available if you'd like to sponsor me :) Cheap man, cheap. 70k a year will do me.

Trust me, TAE is hardly my hero, look over on PO and you'll see a funny little piece about him maybe being a party to a murder. The guy seemed ok to me, but I have a strong bias against him due to his hardheadedness on the AC vs. DC issue. Tesla was obviously the man with the plan there and even Edison admitted it years later. TAE's methodology is ornerous to me as well. Invention isn't necessarily 99% perspiration, he just made it be. Take for instance hawk's patent. 99% perspiration? LMFAO, maybe perspiration in writing the patent app. Though, back in edison's day things were a bit different.

Posted by: 6000 at May 5, 2009 3:32 PM

"Malcolm sticks close to home"

Because, as a blog sponsor, Dennis knows that if "Mooney" posted over here, Hawk would be able to know his true identity.

Like I have said many times, when you imagine that Mooney (and possibly other puppets) might really be Dennis, the whole PatentlyO charade becomes quite pathetic.

Like I also said in a post of mine over at PatentlyO that was deleted, much to Dennis' dismay, PatentlyO is NOT the center of mass of patent law.

I'll say it again, PatentlyO is NOT the center of mass of patent law.

Posted by: Just sayin' at May 5, 2009 5:59 PM

Just sayin' if you don't like what Dennis and Malcolm do, why on earth are you going over there, to get your knickers in a twist?? Hehh, to each his own, I guess. But isn't this a free country? Is either Dennis or Malcolm doing what Microsoft or Cisco does not? Or is free speech somehow unfair when it becomes (in your mind) too effective? (Would you propose something like the "Fairness Doctrine" for blogs?? I think I value the first amendment more than that.)

If you understood why people move into academia, perhaps you might not be offended so much by Dennis' academic perspective. P.S. He didn't move there to prop up the establishment. Every academic paper has a sponsor and a cause... pharma is learning what Microsoft already knew, and you're seeing the "academic" papers starting to balan$e out.... But this battle is not new. JAOI(TM) once quoted from Network (1976), where an anchorman (Howard Beale) finally learned a truth about the world, and it wasn't something new back then either....

http://www.patentlyo.com/patent/2009/01/federal-circu-3.html?cid=144987380#comment-144987380

There is nothing new under the sun... we are simply a generation closer to our own demise. So let's fight to slow it down.

Posted by: niRPa at May 6, 2009 4:39 AM

"Just sayin' if you don't like what Dennis and Malcolm do, why on earth are you going over there,"

Perhaps he gravitates there.

Posted by: Copernicus at May 6, 2009 4:53 AM

...or maybe its the delicious apples

Posted by: Newton at May 6, 2009 5:26 AM

relatively delicious anyway...

Posted by: Einstein at May 6, 2009 6:18 AM

"Just sayin' if you don't like what Dennis and Malcolm do, why on earth are you going over there, "

Because, there was a time when I used to think that the commentary over at PO was honest as opposed to agenda-based. Pretending to be supportive of the system to garner a crowd and then establishing a "patents are crap" drumbeat through the use of sock puppets, while censoring dissenting commentary is intellectually dishonest. And I don't like intellectual dishonesty when it comes to my profession. So I go "over there" to keep a close eye on what latest anti-patent rhetoric is being sponsored and to attempt to force a little balance.

And I do appreciate your comments that further expose the agenda of some, but not all, academics. What happened to simply teaching the law as it is? Is there is some idea that you have to be radicalized and push an agenda to teach anything these days? I can't imagine what a patent class with Crouch must be like. I wouldn't sign up for it.

Posted by: Just sayin& at May 6, 2009 5:14 PM

6,

No way Malcolm is coming with us tonight. The dude is rotten to the core and kills the chick scene.

Posted by: Einstein drinking with 6 at May 8, 2009 5:58 AM