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BT Sues Google for Patent Infringements (Wired)BT Sues Google for Patent Infringements (Wired)Posted Jan 12, 2012 11:54 UTC (Thu) by pboddie (subscriber, #50784)In reply to: BT Sues Google for Patent Infringements (Wired) by SecretEuroPatentAgentMan Parent article: BT Sues Google for Patent Infringements (Wired)
I see neither this being the idea nor that I have implied this. Furthermore an abuse of a patent will lead to conflict with competition law, a patent is not a license to run wild. Compulsory licensing is the threat that is part of the patent laws in many places. You wrote... Part of the purpose of patent publishing is that others should be given access to gain the knowledge and even use that to invent something better which could also be patentable too. Even if we ignore the problem of patents not really giving access to the complete knowledge behind someone's work, the consequence of building patentable things on top of other patentable things is a mountain of paperwork. Someone then has to administer this paperwork, making sure that no claim goes unnoticed. How big must an enterprise's legal department be? Does a one-person start-up require at least one lawyer/paralegal? What about a ten-person company? As for jobs and revenue there are about 10000 European patent attorneys having very roughly the same number of assistants and other staff, and the same order of magnitude number of Examiners, also with a fair number of support staff. I don't think this can be considered a large number of jobs considering there are about 400 millions in Europe. As for revenue the patent offices are supposed to be self funded whereas for patent law firms it varies a lot; some have been in the red and had redundancies. The issue is the effect these peripheral jobs have on the actual work being done and how much money is diverted away from research and towards staffing a bureaucracy. And what about the employment impact on individual enterprises? Attorneys and examiners are just the tip of the iceberg. In other words, the poor people should stick with fouling their environment making cheap products for the rich people and pay the rich people for their valuable knowledge.Really? I think you are not giving people in poor countries sufficient credit for inventiveness. That's a nice way of sidestepping the argument. Of course the developing world are "inventive": you have admitted yourself that an absence of patents in a particular place is a driver of innovation, and there are people who advocate doing research in places where you won't get sued straight out of the starting gate. Although those people argue that the opportunities lie in reading, say, US patents and then doing subsequent work in a "permissive venue", I've already stated that people in that venue will be motivated to do their own original work purely due to the challenges of making the stuff that the developed world increasingly refuses to make. I don't know "wealthy heir" protectionism so I cannot comment on that. The "wealthy heir" has his fortune from his ancestors' hard work but expects to remain rich throughout his life despite his reckless living. As I noted elsewhere, it's a classic Wodehouse character who suddenly needs to shore up his income when he realises that his situation is not sustainable. Patents and other instruments are the means by which our "wealthy heir" wishes to remain funded by everybody else; the challenge is persuading everybody else to fund that reckless lifestyle. Over time, we'll see the developing world use the same tactics: in China, the patent proliferation is just beginning, and we can expect to see the same short-sighted tactics used against the very organisations who advocated them in the first place. I spent a few years in academia and saw it from the inside. Politics was ugly and infighting did occasionally take place. Still, I never experienced myself any major problems regarding sharing knowledge. Huge libraries of scientific journals suggest knowledge is shared. Publications make up one of the most important metrics in academia and is crucial for advancement. If you can state particularly the last sentence without realising what the problem is, then you obviously don't understand the problem, particularly the relationship between the last sentence and the second sentence of that paragraph. I don't know whether those in the patent bureaucracy really listen to or care about what practitioners think in the industries affected by their endeavours, but for a long time there has been substantial doubt about the utility of the journals. Saying that "knowledge is shared" is like saying "money changes hands": just as the latter says nothing about whether an economy efficiently distributes wealth or goods, the former says nothing about whether knowledge is shared effectively and on the scale it should be shared to advance human society at a sufficiently fast pace to meet that society's challenges.
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BT Sues Google for Patent Infringements (Wired) Posted Jan 14, 2012 21:26 UTC (Sat) by SecretEuroPatentAgentMan (guest, #66656) [Link]
> the consequence of building patentable things on top of other patentable things is a mountain of paperwork
That is a statement I would like to see the basis for.
> Someone then has to administer this paperwork, making sure that no claim goes unnoticed.
The paperwork is in by far the most cases available on web. Administration of the publishing is to a large extent automated.
> How big must an enterprise's legal department be? Does a one-person start-up require at least one lawyer/paralegal? What about a ten-person company?
Starting a company in Europe frequently requires a lot of legal work, and around here you will get legal and other important updates that amounts to 1 - 3 cm paper bundle were you to print it out. Not knowing the law is rarely an excuse to go free. Where I got the cost figures my clients spent 10 times on general legal counsel than on IPR. The staff size you ask for I do not know and would no doubt depend on the productivity of the lawmakers in the country involved. Still, the question is interesting and I will see what I can find out.
As for IPR work most clients use outside firms like the firm where I work.
>> As for jobs and revenue there are about 10000 European patent attorneys
> The issue is the effect these peripheral jobs have on the actual work being done and how much money is diverted away from research and towards staffing a bureaucracy.
From my time in research and development, in academia and in industry my clear impression is that for many years research has not been much of a priority
> That's a nice way of sidestepping the argument.
Not really. While I am not always entirely sure what you mean my answers are sincere.
> you have admitted yourself that an absence of patents in a particular place is a driver of innovation
I am not sure how you got this impression. Also if someone reinvents something that is already patented it is by definition not new.
> Although those people argue that the opportunities lie in reading, say, US patents and then doing subsequent work in a "permissive venue", I've already stated that people in that venue will be motivated to do their own original work
The former is an opportunity but not to the exclusion of independent work.
> Patents and other instruments are the means by which our "wealthy heir" wishes to remain funded by everybody else; the challenge is persuading everybody else to fund that reckless lifestyle.
A patent can typically last until 20 years from the priority date (there are many special cases here). In cases like pharmacy it can take you 15 years to get new medicine fully tested and approved for sale, leaving far less time to recoup the cost. In the case of some of my smaller client it has taken them 10 years to get established in the market. In the case of fast moving fields such as software, electronics and mobile technology an invention can be superseded by something better after just 3 years. I have never met a client who could take on a Wodehouse lifestyle based on IPR. How big a problem do you believe this is?
> If you can state particularly the last sentence without realising what the problem is, then you obviously don't understand the problem, particularly the relationship between the last sentence and the second sentence of that paragraph.
On the question of what is the worse, national politics or academic politics, Henry Kissinger is credited with the answer that it is academia since there is so little to fight for. Lack of funding brings out unpleasant qualities in some, nevertheless publishing new results is important. Researchers literally risk their lives to do research and obtain publishable results.
> I don't know whether those in the patent bureaucracy really listen to or care about what practitioners think in the industries affected by their endeavours
They are supposed to.
> for a long time there has been substantial doubt about the utility of the journals
The role of journals as sole means of publishing has already changed dramatically. I believe the high energy physics community started the trend. The High Tc Update had a similar function. These days arXiv is important.
> Saying that "knowledge is shared" is like saying "money changes hands": just as the latter says nothing about whether an economy efficiently distributes wealth or goods, the former says nothing about whether knowledge is shared effectively and on the scale it should be shared to advance human society at a sufficiently fast pace to meet that society's challenges.
It is qualitatively known that reuse of knowledge leaves room for improvement, Examiners locating fatal prior art documents even after a search has been done is one aspect of this. I heard of cases where a university started a research project after others elsewhere had done the research and even filed patent applications. Getting a full overview would be interesting but probably very difficult.
BT Sues Google for Patent Infringements (Wired) Posted Jan 16, 2012 14:47 UTC (Mon) by pboddie (subscriber, #50784) [Link] the consequence of building patentable things on top of other patentable things is a mountain of paperworkThat is a statement I would like to see the basis for. Each patented thing involves "paperwork". Build new things on top of those things and patent them at every step and you've got a mountain; that's the situation in computer science right now because of the way the discipline works and the possibility for independent discovery due to the sheer scale of the discipline. Starting a company in Europe frequently requires a lot of legal work, and around here you will get legal and other important updates that amounts to 1 - 3 cm paper bundle were you to print it out. I don't doubt this, but you don't start your company again every year. Not knowing the law is rarely an excuse to go free. That's a great argument for "do not disturb", but not really an adequate response to criticism of the patent regime. Where I got the cost figures my clients spent 10 times on general legal counsel than on IPR. The staff size you ask for I do not know and would no doubt depend on the productivity of the lawmakers in the country involved. Still, the question is interesting and I will see what I can find out. As for IPR work most clients use outside firms like the firm where I work. Don't forget the general overhead to businesses as well. Sure, this might create extra supposedly technical jobs, as in "we need someone to do the coding as X is now having to audit the product for potential patent infringement", but it's not really adding to the number of people actually doing productive work. From my time in research and development, in academia and in industry my clear impression is that for many years research has not been much of a priority Sure, people doing certain sciences in academia can be tempted to go and work in "The City" because the salaries are better. That's not an argument for sloshing large amounts of money on a bureaucracy to supposedly "monetize" the research being done on the off-chance that the rewards will trickle down into the average graduate student's salary, however. Naturally, such an approach would only lead to researchers being funded according to the number of patents granted, not publications made. At which point, the state of sharing is worsened still further because whatever is shared is explicitly encumbered, and the reward system behaves like a junk currency, as anyone alert to the granting of patents is only too well aware. In the case of fast moving fields such as software, electronics and mobile technology an invention can be superseded by something better after just 3 years. I have never met a client who could take on a Wodehouse lifestyle based on IPR. How big a problem do you believe this is? First of all, it's the Wodehouse character's attitude that's the crucial thing, not whether they manage to achieve the lifestyle. Secondly, the "wealthy heir" aspect mostly relates to the privileged developed nations who seek to penalise the people making the bulk of their consumer goods because they want to uphold the dynamics of the relationship without significant further effort. But I'd certainly be interested to hear how anyone can justify granting monopolies on "inventions" that are competitive for "just 3 years", especially when most of these "inventions" are likely to be independently made (actually "discovered") and improved upon by people who then have to pay for the privilege of using their own work, without any justification being phrased in terms of the usual vague claims of "rewarding innovation" and the like. How big a problem do I think it is? Ask anyone in the wireless industry, anyone wanting to make wireless products, anyone wanting to make software products that brush up against the realm of some of the most protectionist businesses on the planet. The slightest hint of litigation is enough of a risk that people would rather walk away than invest time or money in competing with such businesses. And the advice typically given that new entrants should pile up the patents in order to have a bargaining chip when they do get sued seems like an feeble apology for a market that doesn't function properly. It's like saying that we can only have renewable energy when the oil companies decide we're ready for it (and that isn't a hypothetical situation, either). Maybe nobody really makes any money in running or sustaining a patent bureaucracy. In which case, it baffles me that anyone would let such a supposedly unprofitable man-made mechanism cause so much financial uncertainty for investors. Anything else with such disastrous risk-amplifying properties would surely have been abolished a long time ago.
BT Sues Google for Patent Infringements (Wired) Posted Jan 17, 2012 21:10 UTC (Tue) by SecretEuroPatentAgentMan (guest, #66656) [Link]
> Each patented thing involves "paperwork". Build new things on top of those things and patent them at every step and you've got a mountain; that's the situation in computer science right now because of the way the discipline works and the possibility for independent discovery due to the sheer scale of the discipline.
Patent law firms handle the paperwork routinely, using specialised docketing programs, this is not much of a problem. In sheer volume I see a larger number of documents handled in the accounting office. For smaller operations like solo practice any decent document handling system plus time keeper will do. Modern systems also have portals that lets client view documents without having to have his or her own private paper mountain. You can check out cases in PAIR or Epoline to see indications of the actual volume of documents involved.
>> Starting a company in Europe frequently requires a lot of legal work, and around here you will get legal and other important updates that amounts to 1 - 3 cm paper bundle were you to print it out.
> I don't doubt this, but you don't start your company again every year.
I forgot to mention that this is the monthly volume of legal and other updates. Particularly the EU seems to create new laws and rules as if their lives depended on it.
>> Not knowing the law is rarely an excuse to go free.
> That's a great argument for "do not disturb", but not really an adequate response to criticism of the patent regime.
This was rather a statement regarding the mindset of those that makes new laws. Personally I question the democratic qualities of a legal system everyone is meant to follow but few are expected to understand. Part of my work is to translate back and forth between a precise yet awkward "patentese" to and from the patent office and plain language with the client. I don't think anyone in the profession believe the patent system is perfect, and the large and ever growing complexity is high up on the list of criticisms. And it is rather interesting to see how different we view the problems of the patent system here in this forum.
>> As for IPR work most clients use outside firms like the firm where I work.
> Don't forget the general overhead to businesses as well. Sure, this might create extra supposedly technical jobs, as in "we need someone to do the coding as X is now having to audit the product for potential patent infringement", but it's not really adding to the number of people actually doing productive work.
Patent attorneys/agents in most countries have a technical degree, masters degree or higher, and are meant to handle the patenting issues with minimal disruptions to the operations of the client. Some times we get only articles to review and turn into patent applications.
> Sure, people doing certain sciences in academia can be tempted to go and work in "The City" because the salaries are better.
This isn't just a question of better salaries but of getting a salary at all. With the financial meltdown academia has not been spared. Research assistantships are only temporary so anything that looks like a permanent salary can be tempting. Research is also hazardous and the groups I have been in have experienced radiological incidents, poisoning with hospitalisation, and close shave with exploding equipment. In an office on the other hand you don't risk much more than stale coffee.
> That's not an argument for sloshing large amounts of money on a bureaucracy to supposedly "monetize" the research being done on the off-chance that the rewards will trickle down into the average graduate student's salary, however.
I have already outlined the costs involved, "sloshing large amounts of money" is a bit over board. In many countries the employer has a right to acquire the rights to the invention and for this the employee has a right to a reasonable compensation. Regrettably the employees rarely see this part of the obligation fulfilled, graduate students and research assistants are even more often run over and treated as cheap labour. In my time in academia patenting was not much of a topic or an incentive and money for this was unheard of where I worked.
> Naturally, such an approach would only lead to researchers being funded according to the number of patents granted, not publications made.
As mentioned earlier it has happened that research has started where others have completed the research in a specific fields and also filed patent applications. To avoid this a search for prior art can be made. Getting funding according to grants would mean funding would depend on how many countries you file the applications to and such foreign filings could take years before you get the results. On the other hand I have heard proposals that *filing* patent applications should count as a publication, which could results in doubling publication count since journal publications could be the basis for one or more patent applications. The law of unintended consequences is very much at work here.
> Secondly, the "wealthy heir" aspect mostly relates to the privileged developed nations who seek to penalise the people making the bulk of their consumer goods because they want to uphold the dynamics of the relationship without significant further effort.
First of all there are rules in place that under threat of compulsory licensing prevent abuse. Secondly the dynamics you refer to is already in play as research and development facilities built up around manufacturing sites have grown quickly and in some cases even further than in the home country of the company that outsourced the manufacturing in the first place. Also companies like Huawei and ZTE have already shown that large IPR portfolios are not the prerogative of industrialised countries.
> But I'd certainly be interested to hear how anyone can justify granting monopolies on "inventions" that are competitive for "just 3 years", especially when most of these "inventions" are likely to be independently made (actually "discovered") and improved upon by people who then have to pay for the privilege of using their own work, without any justification being phrased in terms of the usual vague claims of "rewarding innovation" and the like.
In some industries, particularly mobile communication technologies the product lifetime can be much less than 3 years. In this period when the application or patent is published they have only a short time to recover their investment.
If you believe most of these are likely to be independently reinvented I would very much like to see the evidence of this.
And it is not given that an improvement would result in a dependent patent where the later applicant would have to pay the first. This is a theoretical possibility but I have never come across such a case myself so I don't know how often it occurs.
> How big a problem do I think it is? Ask anyone in the wireless industry, anyone wanting to make wireless products, anyone wanting to make software products that brush up against the realm of some of the most protectionist businesses on the planet.
I had hoped you would provide some hard facts. As I have had large clients in the telecom business I might not be seen as entirely impartial here, so I ask rather than make a statement.
> The slightest hint of litigation is enough of a risk that people would rather walk away than invest time or money in competing with such businesses.
I have previously commented on patent proprietors preferring not to hammer small companies.
> And the advice typically given that new entrants should pile up the patents in order to have a bargaining chip when they do get sued seems like an feeble apology for a market that doesn't function properly.
Whose advice? My new entrants never had this problem.
> It's like saying that we can only have renewable energy when the oil companies decide we're ready for it (and that isn't a hypothetical situation, either).
What?
> Maybe nobody really makes any money in running or sustaining a patent bureaucracy. In which case, it baffles me that anyone would let such a supposedly unprofitable man-made mechanism cause so much financial uncertainty for investors. Anything else with such disastrous risk-amplifying properties would surely have been abolished a long time ago.
Allow me to introduce the idea that patents do work and for this reason my profession exists, investors like to see patent applications are filed and patents have not been abolished after all these centuries.
BT Sues Google for Patent Infringements (Wired) Posted Jan 19, 2012 13:05 UTC (Thu) by pboddie (subscriber, #50784) [Link] In some industries, particularly mobile communication technologies the product lifetime can be much less than 3 years. In this period when the application or patent is published they have only a short time to recover their investment. Is the competitive advantage those companies get from innovating not enough? Or the basis that research has given for subsequent research? Instead, you're more or less advocating that the companies get two decades of licensing money for something that is already providing value, in effect allowing patent applicants to benefit multiple times from the same piece of work. I am reminded of aging pop stars who still wish to be paid for a day's work in the 1950s. If you believe most of these are likely to be independently reinvented I would very much like to see the evidence of this. It would surprise me greatly if two or more companies working on the next few generations of products did not do the same research, purely because they cannot leave it to their competitors to do it and then license it from them. By that point, their competitors have stolen a march on them. As for independent discovery, the poster children of the patent system - the patents that people who are not completely against the system regard as "valid" and not susceptible to challenge - are various cryptography patents that involve work that was done independently but not published for national security reasons. If those supposedly "hard" patents are susceptible to independent discovery, I don't see how the majority of patents are not also susceptible. And it is not given that an improvement would result in a dependent patent where the later applicant would have to pay the first. This is a theoretical possibility but I have never come across such a case myself so I don't know how often it occurs. So then you're saying that if someone does some work that is encumbered by a patent, and then they patent their own work, anyone using the latter work has to make sure that they pay both parties. That just shifts an increasing burden down the chain, meaning that someone could be confronted with a mountain of patent claims just for writing some code. That's the problem that faces the software industry. I had hoped you would provide some hard facts. As I have had large clients in the telecom business I might not be seen as entirely impartial here, so I ask rather than make a statement. I don't have any cases to hand, but it is on the public record that Sun Microsystems were practically shaken down by IBM when they entered the workstation business. In any industry where established players are threatened by competition, patents are a tool to impair that competition regardless of any merit those patents supposedly have. So that when you write... I have previously commented on patent proprietors preferring not to hammer small companies. ...it doesn't mean that much because those small companies are probably not enough of a threat. When they become enough a threat is precisely when they have difficult choices to make regarding cross-licensing. Allow me to introduce the idea that patents do work and for this reason my profession exists, investors like to see patent applications are filed and patents have not been abolished after all these centuries. Patents certainly "work" for some people, but the issue is not whether some people gain from their existence but whether they are the most fair instrument in encouraging work that leads to progress in human endeavour. That the system has not been abolished can be attributed to a number of factors (uncertainty over a replacement, for example, which is not the same as claiming that the patent system is fair, optimal and that a superior mechanism cannot be envisaged; bureaucratic inertia; lobbying from interested parties) that outweigh any argument for the merits of the system itself.
BT Sues Google for Patent Infringements (Wired) Posted Jan 20, 2012 22:50 UTC (Fri) by SecretEuroPatentAgentMan (guest, #66656) [Link]
>>In some industries, particularly mobile communication technologies the product lifetime can be much less than 3 years. In this period when the application or patent is published they have only a short time to recover their investment.
> Is the competitive advantage those companies get from innovating not enough?
Sometimes yes but that is increasingly rare. People enjoy buying cheap high tech items; the downside is relentless price pressure and ever decreasing margins. Some times a patent has a long useful lifetime, in many cases it outlives its usefulness within 5 years and perhaps not even gets to grant before it is abandoned and lapses due to annuities not being paid. The problem is that you do not always know which one is the winner so you hedge your bets by running with several projects in parallel. Patenting then is a way of reducing risks. In the case of smaller companies many believe that after a working prototype is done they have completed 90 percent of the work towards commercial success. Reality is normally that the working prototype comes around the 30 percent milestone.
> Instead, you're more or less advocating that the companies get two decades of licensing money for something that is already providing value, in effect allowing patent applicants to benefit multiple times from the same piece of work.
Not at all. Patenting is not immune to price pressure and eroding margins so many patent applications are abandoned well before 20 years. Exceptions exists, like fundamental patents and pharmaceutical patents.
> It would surprise me greatly if two or more companies working on the next few generations of products did not do the same research, purely because they cannot leave it to their competitors to do it and then license it from them. By that point, their competitors have stolen a march on them.
People can work on the same problem yet arrive at very different solutions. As an example, a rope can attach two items, and so can glue, two totally different solutions. I have worked with a few of the large technology companies that provide licensing. If a competitor filed an application for the same invention this should be found during the prosecution of the international application and classified accordingly. I never saw this really happened. Certainly, lack of proof is not proof of lack, it is just that not having seen it first hand I really wonder how often this occurs.
> As for independent discovery, the poster children of the patent system - the patents that people who are not completely against the system regard as "valid" and not susceptible to challenge - are various cryptography patents that involve work that was done independently but not published for national security reasons.
I would certainly like to see these. One possible explanation is that these are obvious in view of older published documents. There have been a few allegations of patent applications having been the result of industrial espionage.
> If those supposedly "hard" patents are susceptible to independent discovery, I don't see how the majority of patents are not also susceptible.
I can only offer you the meagre datapoint of not having seen this myself.
>> And it is not given that an improvement would result in a dependent patent where the later applicant would have to pay the first. This is a theoretical possibility but I have never come across such a case myself so I don't know how often it occurs.
> So then you're saying that if someone does some work that is encumbered by a patent, and then they patent their own work, anyone using the latter work has to make sure that they pay both parties.
No, I am definitely not saying this has to be so, to the contrary I state it is a theoretical possibility that I have never come across. To illustrate with metaphors: imagine a patent case in the stone age.
> I don't have any cases to hand, but it is on the public record that Sun Microsystems were practically shaken down by IBM when they entered the workstation business.
The most plausible story I find on the net is this one:
>> I have previously commented on patent proprietors preferring not to hammer small companies.
> ...it doesn't mean that much because those small companies are probably not enough of a threat.
One realistic threat even the smallest companies can make is to upset the relationship between licensor and a licensee having an exclusive license. No matter the size you have to do the analysis. One cost effective solution is to persuade the small infringer to make a small but sufficient change so that one can argue there no longer is an infringement. Smaller companies can be sufficient agile to make the changes and it is more cost effective to assist them in this rather than start litigation proceedings.
>> Allow me to introduce the idea that patents do work and for this reason my profession exists, investors like to see patent applications are filed and patents have not been abolished after all these centuries.
> Patents certainly "work" for some people, but the issue is not whether some people gain from their existence but whether they are the most fair instrument in encouraging work that leads to progress in human endeavour.
If we imagine a world without patenting many would turn to use of trade secrets to keep an edge over the competitors. Many companies I have been working at use trade secrets extensively and this would lead to less being published and then improved on. Particularly in pharmaceutics where secondary use is big this would have a big impact. For electronics/computing the fear is that big companies would steamroll small companies and investors would leave this market.
> That the system has not been abolished can be attributed to a number of factors (uncertainty over a replacement, for example, which is not the same as claiming that the patent system is fair, optimal and that a superior mechanism cannot be envisaged; bureaucratic inertia; lobbying from interested parties) that outweigh any argument for the merits of the system itself.
One big unknown is of course the maximum duration of protection. As for lobbying you could read through some of the major patent blogs and you will quickly see that many of the changes have been to the detriment of the patent profession and many feel that the rights of the small entities are under threat from the large companies. There are many interests pulling in more than two directions.
Do you envisage a mechanism superior to patenting that also gives protection to small entities?
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