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with all due respect

with all due respect

Posted May 7, 2005 23:34 UTC (Sat) by ccyoung (guest, #16340)
In reply to: Difficult for a farm boy like me by giraffedata
Parent article: Software, reverse engineering and the law

you certainly know more about this than me.

but consider if I were to take a couple of week programming, and, using common sense in this profession, say, "it'd be cool if the user moved her mouse this way then that would happen," or say, "in this XML format I'll let the user define a macro that could have a dynamic effect on what the user sees." what if there were an unnamed company with unlimited resources that patented these ideas. are you saying I no longer "own" them? does the company now have right to come after me however it chooses because I applied commons sense to my profession?

this is patently absurd.

consider if you like to barbeque on weekends and have actually gotten pretty good at it. your innovation is to marinate your brisket and then freeze it a little before grilling to help set the juices. however, Kraft has patented this method. you're legally allowed to freeze your brisket only if you pay Kraft a royalty each time you light your charcol. say you own a steakhouse - Kraft comes to your door saying you don't even know how many pantents of ours you are violating every night straight off your menu - it really makes sense just to pay us this yearly fee.

there's the beef.

are you going to hire $50,000 for a patent attorney? no, if you own that steakhouse you're just going to pay. if you are in your backyard, you're just going to ignore those Kraft patents as being completely absurd.

forgive my lack of sophistication, but this sure as hell sounds like extortion to me. that the government might be complicit really makes no difference.


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with all due respect

Posted May 8, 2005 18:09 UTC (Sun) by giraffedata (subscriber, #1954) [Link]

You bring up several ways the patent system isn't right, but it isn't clear that any of it amounts to extortion.

In your last paragraph, you hint that the barbecuer doesn't legally owe the royalties -- that if he paid for legal process, he wouldn't have to pay the royalties. If that's true, and Kraft knows it, then we have extortion. Kraft has a moral (and often legal!) obligation to leave him alone for free, but is offering to sell it. This has nothing to do with patents; this kind of extortion exists throughout the legal system.

But if Kraft really has a case, you have to dig deeper to find any extortion. You have to base it on a personal belief (which many don't share) that a person can't morally own an invention of this type. Much like many people believe one can't morally own, in one way or another, a person, a body part, or land.

With respect to some of the other problems you brought up: I am not a patent lawyer; most of what I know about patents comes from places like LWN reader comments. But I can tell you this:

US patent law requires an invention to be nonobvious to have patent protection. The US patent office seems to be largely ignoring that rule these days, but courts have been sticking to it better. If you can invent something by "applying common sense to [your] profession," it's legally "obvious."

The fact that independent invention doesn't excuse you from patent liability (i.e. if I invent something without knowing that you already did, I still can't use the invention) is based on the original purpose of patents referred to in an earlier comment: The patent protection is compensation for contributing an invention to the public (within limits). It's not a recognition of a moral right of an inventor to his ideas. The guy who gave the mouse invention to the public did his part; as a member of the public, your part is to pay him when you use it, regardless of whether you had the same idea.

I believe with the current state of technology, the public is getting a bad deal on most patents -- it's paying for inventions that would have been contributed anyway, because there would be no way to keep it secret and it cost practically nothing to invent.

extortion - a rose by any other name

Posted May 9, 2005 0:45 UTC (Mon) by ccyoung (guest, #16340) [Link]

Example One:

1. using your definition that an idea that any one of 100K hackers could have "appl[ied] common sense to [his/her] profession," it's legally "obvious", assume more than 90% of all software patents are nonobvious.

2. assume that corporation A collects these patents.

3. assume that corporation A has, for all practical purposes, unlimited resources.

4. assume you are Corporation B, a software house or company that writes software in-house.

5. assume that Corporation A tells you that you are violating their patents and that it would be in your best interest to pay for usage of those patents.

what are your choices of action?
a) take them to court and fight them over serval years at the cost of several million dollars, with your business dead in the water.
b) pay them off.

Example Two

1. assume you have a small but thriving restaurant in New York.

2. assume Mr Saprano visits you, telling you many restaurants have had many violations and, if you pay him monthly, he will arrange it so you don't have similar problems.

what are your choices of action?
a) take them to court and fight them over serval years at the cost of several million dollars, with your business dead in the water.
b) pay them off.

Your point is that, if it's legal, it's not extortion. My point is that, if I cannot show it's illegal, it doesn't matter.

My second point is that if I see someone hurt and I need to drive on the wrong side of the road to help them then I'll drive on the wrong side of the road. What's the discussion?

It's why I mentioned prohabiton - it was a collosal failure because people simply ignored it - and ignored it with gaity. Whenever I boot up my Linux it says, "have fun!"

extortion - a rose by any other name

Posted May 9, 2005 16:03 UTC (Mon) by giraffedata (subscriber, #1954) [Link]

Isn't example One the same as from your previous comment? So the analysis is the same. You hint that Corporation A's patents aren't valid -- otherwise, option (a) (taking A to court) wouldn't be an option. That being the case, there's extortion just like in the Soprano example. Corporation A is obligated to leave you alone for free, just as Mr. Soprano is obligated not to trump up charges against you, for free. Offering to perform the obligation for money is extortion.

The transfer of a patent from one person to another doesn't really change the morality of the patent at all. The inventor was paid by the public with a patent for disclosing his invention. The inventor converted the payment to cash by selling the patent to Corporation A. Corporation A is converting its investment to cash by enforcing the patent. The system's doing what it's supposed to do.

Your point is that, if it's legal, it's not extortion.
It wasn't that simple. I talked about moral, not legal. I drew a connection between the two, saying that the fact that something is legal is a strong indication that society in general believes it is moral. Society has caused patent law to exist and grow for hundreds of years. Lots of people must believe in it -- I.e. believe it's moral to demand payment for use of an invention.
My point is that, if I cannot show it's illegal, it doesn't matter.

I agree. It is extortion, and wrong, and often illegal, to file or defend a lawsuit when you know you're legally wrong, in hopes that the other side will find it cheaper to pay you than pay legal fees. This is not a patent issue. But I believe this thread started out with discussion of patents that are valid under present patent law.

1. using your definition that an idea that any one of 100K hackers could have "appl[ied] common sense to [his/her] profession," it's legally "obvious", assume more than 90% of all software patents are nonobvious.

I don't think it's germane to the extortion question, but: from what I've seen, about 2% of software patents are nonobvious.

My second point is that if I see someone hurt and I need to drive on the wrong side of the road to help them then I'll drive on the wrong side of the road. What's the discussion?

I agree. I didn't think we were discussing that.

"non-obvious" non-obvious

Posted May 10, 2005 0:43 UTC (Tue) by roelofs (guest, #2599) [Link]

US patent law requires an invention to be nonobvious to have patent protection. The US patent office seems to be largely ignoring that rule these days, but courts have been sticking to it better. If you can invent something by "applying common sense to [your] profession," it's legally "obvious."

That's not how I understand it from speaking to at least a couple of patent lawyers/attorneys. My understanding is that the "non-obvious" rule is decided on an almost algorithmic basis, one that could be described in terms of an automaton (my terminology). To wit: given as input all patents and publicly disclosed prior art to date, if an automaton could glue various bits together to come up with your "invention," it's obvious. Anything else is non-obvious.

I don't claim that either my memory, my understanding, or that of the folks to whom I spoke is correct, but at least in the latter case, this is what they do professionally, so I tend to believe them. On the other hand, even if everything I've said is fundamentally correct, there's obviously still plenty of room for interpretation on the part of the examiners (as I've found out the hard way on at least one occasion). One can also see a little more easily how a lot of stupid patents have gotten granted over the years.

"non-obvious" non-obvious

Posted May 10, 2005 4:11 UTC (Tue) by giraffedata (subscriber, #1954) [Link]

Yeah, that does seem consistent with the patents we see in the news. What I remember is some words from the one patent class I took 15 years ago. I distinctly remember the words, "a person skilled in the art" in the definition of obvious. Something like, "A person skilled in the art, faced with the same problem, would reasonably be expected to arrive at the same invention."

On the other hand, lets remember that all the silly patents we hear about are just issued -- I never hear about them actually standing up in court. The patent office may be taking a less-than-legal stance on the obviousness test, biasing itself toward granting patents.

"non-obvious" non-obvious

Posted May 10, 2005 15:18 UTC (Tue) by roelofs (guest, #2599) [Link]

I distinctly remember the words, "a person skilled in the art" in the definition of obvious. Something like, "A person skilled in the art, faced with the same problem, would reasonably be expected to arrive at the same invention."

Yes, I think that's more or less the exact statement of law (or whatever) surrounding patentability. But that just pushes the definition question back a step: how do you define "skilled in the art"? That's where the definition I gave comes in--someone who knows everything (that's been published) and can rearrange bits of it to make arbitrary new combinations but who is incapable of any creative insights, no matter how trivial. As poor as this definition sounds, if you think about it, it may be the best you can do--at least it's prescriptive, whereas almost any other definition of "skilled" is wide open to interpretation.


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