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Source link: http://archive.mises.org/11401/a-theory-of-open/

A Theory of Open

January 7, 2010 by

This mini-treatise by Jonathan Rosenberg of Google is worth some close attention. The text echos so much of what we’ve been writing, and it certainly expresses the theory and practice of Mises.org.

Again, I say to all detractors, read Kinsella and B/L and let it all sink in.

Thank you Paul Vahur.

{ 25 comments }

Silas Barta January 7, 2010 at 6:15 pm

Ah, the ever-present fallacy in IP debates. Will it ever end?

- Entity X benefits from waiving right Y.
- Therefore, Y should never exist.

Are people still convinced by this? Is it starting to make sense why I get frustrated over this issue?

(Note: here, X = Google, Y = IP right [to restrict access to their platforms])

Stranger January 7, 2010 at 6:30 pm

Getting IP law banned would be a great way for Google to destroy its competition from Microsoft. I wonder why they are against IP law.

newson January 7, 2010 at 7:47 pm

to stranger:
if microsoft are indeed destroyed, rather than merely diminished by their loss of monopoly rents, then maybe that’s saying something about their worth to consumers.

Hard Rain January 7, 2010 at 7:47 pm

What competition? ;)

/sarc

David Veksler January 7, 2010 at 8:45 pm

You must read this comment by John Gruber in response to Rosenberg: http://daringfireball.net/linked/2009/12/22/open – he’s spot on.

Stranger January 7, 2010 at 8:46 pm

To newson: Microsoft actually releases software to the market. Google keeps its software secret, hence it wouldn’t be as harmed by the loss of copyright protection as Microsoft.

Michael January 7, 2010 at 9:06 pm

@Stranger

Both Microsoft and Google know that IP law can hurt them, as it’s next to impossible to know if you’re infringing on a software patent (there’s just too many of them, and a patent on some bit of software that’s completely unrelated to what you’re doing might very well bite you).

Generally the big companies liked patents because they could wipe out smaller competition using their patent portfolio, and not fear patent lawsuits from larger competitors because a lawsuit would bring about a “mutually assured destruction” scenario. But now, there are companies that produce patents in areas where the don’t produce products (check out http://www.intellectualventures.com/ ).

Do IP advocates understand that the system may very well make it a better bet to produce patents than products? Why go through the hassle of producing products for finicky customers when you can wait for someone to go through the trouble of making a successful product and threaten to sue them?

Michael January 7, 2010 at 9:12 pm

David Veksler says:

You must read this comment by John Gruber in response to Rosenberg: http://daringfireball.net/linked/2009/12/22/open – he’s spot on.

No doubt that Google obviously draws a line between how they treat “software as a service” like search and ads and how they treat other software that’s actually installed on a customers’ hardware.

Prima facie this is inconsistent, but there’s not much need to look at it any further, as it is also completely irrelevant to the IP argument, as Google would be free to keep their search algorithm and ad software as a trade secret even if copyright and patents didn’t exist.

Jeffrey Tucker January 7, 2010 at 10:16 pm

David is right of course that the piece didn’t account for Google’s own search engine methods that are top secret. Openness when it works, but not openness when it is bad business. the trick is to know the difference. In general. I would think that the business world has generally underappreciated the productive gains from openness and overvalued the gains from keeping things proprietary. Mainly, I think, this comes from an exaggerated reliance on IP and a belief that it is the key to success.

Jaycephus April 18, 2010 at 2:25 am

One thing about being ‘open’ with search engine methods: every webmaster will game the system. It already happens with what we think we know about the search engines’ methods. I’ve done some of it myself. If I knew more, I’d take advantage of it. So in keeping the search method secret, the search engine’s value to the user is increased, due to the generation of results that pull in legitimate pages, and not spam, spam, eggs, and spam.

Agora January 7, 2010 at 10:22 pm
Deefburger January 7, 2010 at 11:32 pm

The sentiment of Google appears to be open.
The law is currently pro IP.
Google has to operate in a pro IP environment so the fact that they have closed source is no surprise. The security and the revenue stream have to have secrets as well. So what?

A push of any kind for more openness in intelligence, especially the intelligence of personal information is critical if there is to be change. I would like to see openness in monetary electronic services. I would like to see openness in voting systems. I would like to see openness in government. I don’t generally buy any thing closed if I can avoid it already. Android is my next phone OS. Linux has been my only PC OS for several years. It works great and it rarely breaks. I make a living fixing the other OSs. Openness makes sense to me too.

Stephan Kinsella January 7, 2010 at 11:34 pm

Jeff: “Mainly, I think, this comes from an exaggerated reliance on IP and a belief that it is the key to success.”

MIchael: “Do IP advocates understand that the system may very well make it a better bet to produce patents than products? Why go through the hassle of producing products for finicky customers when you can wait for someone to go through the trouble of making a successful product and threaten to sue them?”

I am not sure if non-practitioners realize exactly what goes on in patenting. Quite often medium to large sized companies hold “patent mining” sessions. They are usually not trying to come up with ideas that they might use in their business. What you do is you get 5-10 engineers to sit around a coffee table, and they are led by a “facilitor” (often a patent attorney). They talk about what they’ve been working on, and try to find little twists or aspects of a design that they can file a patent on. Or, they’ll sift thru a bunch of patents in an area that competitors are practicing in, and just brainstorm, thinking of things they can file patents on. Not because they intend to use these ideas. But just to build up a thicket of patents that they can use against another company, either defensively (i.e., a countersuit if the competitor sues them); or to extract royalties or to squelch competition.

For example, the attorney shows a powerpoint with diagrams from a bunch of patents or product designs. The engineers throw ideas out there. Most of them are ridiculous. Someone is taking notes. One of them might say, “How about if we had two channels of information there, in parallel, instead of one? Do you think competitor B might some day do that? After all, dual-channels are becoming popular right now; they’ll probably have to do this some day.” The patent attorney says, “Say that sounds alright. What’s your name? Bob? Okay, you’re ‘an inventor’. Anyone else contribute to this? Jim, didn’t I hear you say something like, ‘yeah, that might work?’ Okay, you’re the second inventor. Let’s file a patent on this puppy. You each get a $3,000 bonus.”

So, for about 3 minutes of brainstorming, a patent emerges. Maybe a dozen patent applications are filed from that meeting. These are not flashes of genius. They are not sweat of the brow. It’s just a bunch of engineers torn away from their actual design work to brainstorm ways to hamper their competition. So maybe half the patents are abandoned half-way through “prosecution,” a couple years later, after it’s clear even to the bumbling patent office that they are sh*t. Of course about $20-30k was spent on each of the now-abandoned applications, or about $150k. No matter. PTO employees and patent lawyers have to put food on the table.

The other half might finally issue as patents. Most or all of them are probably sh*t too, but now they are issued, and have a “presumption of validity.” Now we’re up to $30-40k or so per issued patent. Got to recoup those expenses and justify the patent budget, eh? And say, it sure looks like company B’s products are … kinda close to the claims in 2 or 3 of the patents. Let’s send them a friendly cease and desist letter.

Company B’s patent attorney is then called into action. He’s hired to draft 3 or 4 “non-infringement opinions” for, say, $30k each. Why? Just in case B is sued, and loses… so that they can at least plead that the infringement was not “wilful”. They still have to pay damages (or stop selling the accused product), but it won’t be trebled… if the judge believes the opinions were “sincere” and “relied on” by the defendant so that, although they were infringing, it was not “wilful” since they were after all following a lawyer’s advice.. .the lawyer they paid $120k to tell them that … they are not infringing … even though it later turned out that they were. No matter, The $6 million B has to pay in damages is at least not trebled $18 million, so that the measly $120k spent on the patent opinions, plus the $1 million spent on patent litigators, was well worth the $12 million saved! B is better off (well, except for the $6 million verdict), its patent attorneys are better off. As for the patentee company, well, their few hundred grand in patent acquisition fees yielded them $6 million, and reduced competition! A win for everyone… right?

This abomination is what pro-patent libertarians thing is just? They think this is compatible with rights and liberty? They think this is productive, innovative behavior? Give me a break.

Jaycephus April 18, 2010 at 4:27 am

I’ve heard of worse patent abuse than your example. A noted patent abuser, we’ll call him Lemelson, filed ‘paper submarine’ patents, meaning they were pure paper (no prototype work, no research with the intent to manufacture, no real ‘IP’ at all in some cases) and they were indefinitely continued in a ‘pending’ state until real engineers invented the actual technologies. Additional patent amendments would help extend the life and reach of the patent. One example is the “Automatic measurement apparatus” – Patent 3081379. This describes an absolutely un-buildable device which was eventually used to issue claims on all bar-code & 2D code reading systems, and all machine vision products. The original patent was filed in 1954, and included lots of ‘optical comparators’ and ‘computing circuits’ and ‘magic happens here’ diagrams in a hodge-podge description of something that most resembles an astute 50′s sci-fi writer’s vision of what a machine vision system of the future might look like, which is to say it is filled with descriptions of how video might, in some fashion, be stored on magnetic tape and used in a vaguely sketched out manner to perform inspections or measurements. Then the patents were ‘surfaced’ after real bar-code readers and machine vision systems came to be widely used in industry, and Lemelson went after violators. But he didn’t go after manufacturers of the devices! He went after end-users with deep-pockets. The relatively small manufacturers didn’t have the big money. He went after all automakers, Walmart, Target, FedEx, Apple, and some 900 other companies. All these large companies used bar-code readers and machine vision, and most simply paid settlements rather than spend tens of millions fighting it in court. Ford sued, but they eventually settled. Finally the actual inventors of these technologies took Lemelson to court. The case did not only rest on the merit of the actual patent. Was it buildable? Was there an actual invention put down on paper at all? That ended up perhaps influencing the judge some, but it also came down to the amount of time between the original filing, and the claim. The case was decided in favor of the true inventors, against Lemelson. Subsequently, patent law has been modified so that a patent is valid for 20 years from filing (if subsequently granted), and thus at least submarine patents are no longer possible. However, Lemelson and the foundation that has carried on after his death collecting settlements and fees on a portion of the 600+ patents Lemelson filed in his lifetime has collected 1.5 billion on the ‘Automatic Measurement Apparatus’ alone, while never so much as actually creating and providing a single device based on his own patents. The actual work was done by other inventors, sometimes decades later.

Deefburger January 7, 2010 at 11:43 pm

@Jeffrey Tucker

You know in Google’s defence, their business model has need of secrecy because it uses ads as a revenue stream.

If the algorithms are known to the advertisers, the advertisers can game the system. If the advertisers game the system, revenue is affected directly because the search results become horribly skewed in favour of the advertiser with the best game on the algorithms. When that happens, Google can’t charge the other advertisers fair price because they get no exposure. Only the gamers get exposure, and the business model collapses for Google.

They simply MUST keep secrets of some kind or they die.

Renegade Division January 7, 2010 at 11:48 pm

Google’s Net Neutrality campaign proves one thing, if Hitler was American he would have promised “Freedom and Liberty” from the Jewish race, if Karl Marx was American, he would have promised freedom and liberty to the working class.
If Anti-Christ takes birth today in America he would also sell freedom and liberty from the God.

Greego January 8, 2010 at 4:45 am

Google keeps its software secret

Google releases a ton of useful open source software. Chrome, Android, Wave, etc.

LibertyClick January 8, 2010 at 6:08 am

Google aims to release an open source OS modeled with the new chrome browser to be initially released on netbooks.

http://googleblog.blogspot.com/2009/07/introducing-google-chrome-os.html

The code will be open source – you can download it, switch a logo, and resell it, adapt it as you wish. Should be some interesting market variety in operating system choice in the near future.

Paul Vahur January 8, 2010 at 6:14 am

Pearls Before Swine has their take on Google

Joe B January 8, 2010 at 7:15 am

Google has very little to lose from elimination of taxpayer-funded IP protection. Most likely anyone who comes near the search engine code signs an NDA to protect this trade secret.

Enforcement of this contract does not require specific IP laws, it’s simply a contract like any other. NDA’s would still be valid. Trade secrets protected by voluntary private contract do not violate physical property rights in the way that patents and copyrights do. Thus, Google’s business plan as outlined in this post is consistent with Libertarian principles.

It seems to me that google is taking the right approach and leading by example. Everyone whines about what the state does wrong, but the only effective way to reduce the state’s grip is to provide viable alternatives. Fed Ex and email have made the post office irrelevant. I think that it will be eliminated (or at least privatized, then eliminated by the market) within my lifetime.

Maybe google books will put pressure on copyright holders to release more content into the public domain, as copyrighted materials eventually draw fewer readers than free content. Between google books and Amazon allowing authors to publish themselves, copyright could eventually go the way of the post office – bled to death by attrition. This is the surest path to reclaiming freedoms, one at a time.

Stranger January 8, 2010 at 10:55 am

I am not sure why Stephan Kinsella thinks that IP is about patenting.

bob January 12, 2010 at 10:02 am

The original article makes it plainly clear that they DO NOT make their search code available, as he said he doesn’t think it would jive with Google’s definition of “open”.

One clear problem with that approach is that people would “game” the search so that their result appears under a variety of input, even if the user was searching for something else or there are more pertinent search results.

scott t January 12, 2010 at 1:50 pm

One clear problem with that approach is that people would “game” the search so that their result appears under a variety of input, even if the user was searching for something else or there are more pertinent search results.

i thought google product-search was geared to that already to some degree.

as far as hacking a computer, providing false or fraudulent searched-for items i dont call that gaming.
i would call it fraud, stalking and grounds fora vilolent cessation of the search engine if necessary.

if alter-google was geared toward alternative media etc then i wouldnt see that as a problem.

scott t January 12, 2010 at 2:04 pm

but as you call gaming, i call directed deceit (likely to lead to further harm). but it seems that a search engine with a closed search algorithim could be manipulated as well….at least if it was open some may be able gather an understanding of it.

Stephan Kinsella January 19, 2010 at 10:35 pm

I posted the following (and other) extended comments on a cross-post of my comment above:

Lonnie, I can’t believe you deny such patenting goes on. I have led such sessions myself, for many clients, and believe me I didn’t invent that idea! Further, besides such formal sessions, this goes on all the time in informal fashion in normal patenting. Companies set up bounties for merely submitting invention disclosures. So you’ll have an engineer sitting at his desk one day, and an idea occurs to him as he looks at or thinks about something; he dashes off a 13-minute little invention disclosure memo about just the kind of idea I mention above–something that his company will never make, something he has no idea of its commercial practicability, etc.–the patent committee reviews it along with dozens of other submissions; he gets his bonus check; maybe a second bonus check if the committee decides to file it; and so on. A goodly percentage of patents that are filed are of this type. Why would you weigh in if you are clueless about this? It’s understandable Randroids and the independent inventor lobbying associations would want to cling to a romanticized notion of how the patent system operates, but why would honest people?

[Comment at 01/10/2010 07:04 AM by Stephan Kinsella]

MLS:”I guess I must be “old school” because I do not recall ever having filed or had filed an application without first conducting a Pre-X search.”

Do you mean you paid an outside searcher, or just your own informal Internet search (which didn’t exist “old school”–did you go down to a local PTO shoebox repository and manually do searches pre-1995?).

It is extremely common for patents to be filed with no search at all. That said, I do searches myself–not a formal one, but the informal PTO type search. But it’s often not done.

“I readily admit that my approach is much more comprehensive than most, but as previously noted I believe the filing of an application is not a matter that should be taken lightly.”

The patent system permits and is rife with junk patent filings. That you didn’t do it doesn’t change this.

Lonnie: “Forget it. Stephan lives in some sort of parallel universe different from ours. I know the number of searches I have done myself is in the hundreds, at least.”

Me, too, probably. So what? How does this prove that the patent system is legitimate? How does this militate against the observation that thousands of junk patents are filed (and allowed)?

“He does not believe in IP, so going to work must be mentally painful. How does someone do a good job when they do not believe in what they are doing?”

This is nonsense. More of the “we will penalize you if you don’t toe the line.” See my posts Patent Lawyers Who Don’t Toe the Line Should Be Punished!; An Anti-Patent Patent Attorney? Oh my Gawd!; Is It So Crazy For A Patent Attorney To Think Patents Harm Innovation?.

It is necessary for my own company to obtain patents for defensive purposes, given the evil monopolistic, protectionist, mercantalist system foisted on us by pro-patent types. Given the system we are in, it is good that my client obtain patents, just as it’s good that a tax victim have a good tax attorney. In a free society neither patent lawyers nor tax attorneys would exist.

“Of course, he also believes in filing junk patents without doing a search. Weird.”

It’s not that I “believe in it”, it’s that I believe that it is commonly done. I don’t believe in taxes either, but I believe they exist. Notice that MLS above did not deny that this is done.

“As for your comment about the way patents were meant to be used, no, you are wrong. They were meant to communicate to the world an invention and the recognition that the right to make, use, sell or offer to sell the invention was given to that inventor for disclosing the invention to the world.”

How do you know what they “were” “meant” to do? We know that the statute gives the patentee a right to extort and sue. And it’s predictable that if you dish out this right, people will take and use it. Surprise, Marshall Texas is prospering!

“However, some people, apparently those in the companies you have worked, have twisted this to be a weapon of ambush.”

SHOCKING!!

“Fortunately, the laws are changing so that such ambushes are harder and harder.”

Nonsense. The law is not changing fundamentally. See my Radical Patent Reform Is Not on the Way. Patent shills squeal like scalded dogs when they sense any potential dilution of patent “strength.”

“Also fortunately, statistically less than 1% of all patents are treated in this way, and far less than 1% of all patent holders act in this way. I would also remind you, Stephan, than there is no such thing as an evil system, only evil people and evil actions.”

It is evil for the state to hand out legal monopolies to people, that they can use to extort, sue, ruin in the state’s illegitimate courts.

Lonnie: “Actually, it is more akin to being a priest while being a devout Satanist. The conflict must be tremendous. I am curious as to how one does something well that one does not believe in, or believes is morally wrong? I would think Stephan would give up being a patent attorney and just be a plain attorney, or perhaps an engineer, if he can, of course.”

My career is none of your business and is irrelevant to my case that IP is illegitimate. Of course patent shills would love for any patent attorney to toe the line and for those who don’t to leave the profession so that they can tar and feather any opponents as being ignorant of the workings of the system they oppose. Too bad, podnah.

[Comment at 01/10/2010 09:05 PM by Stephan Kinsella]
MLS, Your comments are about technical details of the practice of patent law–what is best practice, what is prudent, and so forth. My view is a normative one: it is that the patent system is unjustified; it is a violation of individual rights. The state has no right to grant such monopolies to people. The state employs various forms of propaganda to support this immoral system. People buy into it and repeat this to varying degrees. The propaganda succeeds in part because the state and various individuals and groups with a vested interest in the patent system have succeeded in persuading the masses of some kind of idealized picture of how the patent system works. Though the advocates of the patent system routinely trot out a wealth maximization rationale for the patent system, they never bother to try to produce data to support this claim, because it is irrelevant to them; their interest is in maintaining the patent system regardless of its benefit to society. It is its benefit to the state and vested interests that concerns them. Thus the story given to the public never even alludes to any possible costs of the system, even though this would be relevant to a claim that the patent system produces benefits far in excess of its costs. Rather, it is implicitly assumed that it is obvious that there are benefits, and that costs are negligible. Part of painting this mirage is the myth of the flash of genius, the spark of insight, the lone inventor toiling away and finally getting property protection of his creation. Yet you and I and all patent practitioners, to the extent they care to think about it, know this is a mass distortion: that probably less than 1% of all issued patents even remotely qualify for being classified as this type of invention. The vast majority of patents are junk of one type or another: they are trivial; or obvious if we could only find enough art (or if the examiners were competent; or the standards for obviousness were objective); or duplicative; or represent innovations that already exist, or that others “skilled in the art” would come up with in the course of designing products that meet current market demands. This whole patent system is nothing but a mercantilist grant of monopolies that saps and transfers and destroys wealth for the benefit of privileged classes, and is tolerated by the masses because they do not understand the system and place unjustified trust the power-regime elite. It’s the same old story painted time and time again across the canvas of history. And patent lawyers are part of it–and they are on the wrong side. No distracting talk about what is prudent or ethical “as a patent lawyer” will change this. As the Roman jurist Papinian wrote, “It is easier to commit murder than to justify it.”

[Comment at 01/17/2010 10:17 AM by Stephan Kinsella]

In my post above, I tried to just mention one aspect of the real patent system–to show that it’s not this idealized system that laymen are led to believe. They–and many libertarian IP advocates–have this romanticized notion of the patent system. They think of it as the just reward given to the diligent inventor toiling away for years to produce some amazing, insightful, flash-of-genius, clever contraption that we would not have without his effort. And yet, as noted above, probably less than 1% of all issued patents even remotely qualify for being classified as this type of invention. The vast majority of patents are junk of one type or another: they are trivial; or obvious if we could only find enough art (or if the examiners were competent; or the standards for obviousness were objective); or duplicative; or represent innovations that already exist, or that others “skilled in the art” would come up with in the course of designing products that meet current market demands. This whole patent system is nothing but a mercantilist grant of monopolies that saps and transfers and destroys wealth for the benefit of privileged classes, and is tolerated by the masses because they do not understand the system and place unjustified trust the power-regime elite.

So a few patent agents and attorneys weigh in (also on facebook here), not to mention shills like Gene Quinn and Dale Halling, with either cruddy arguments (Halling and Quinn) or irrelevant, off-topic points. They say that I am wrong to imply that there are patent mining sessions, junk patents, etc.–oh no, why, a search has to be done and a careful review by the attorney. When I say no, searches are not always done, they claim that it’s routine and “old school,” to imply that I’m lying or don’t know what I’m talking about. They assert that it’s good practice (which I never denied) and that I must now know this. I usually do searches; in my practice I recommended them often esp. in the case of an independent or small inventor. But I have been around enough to know it’s not always done and while some companies do it routintely others have a policy against it. Some small-time or part-time practitioners who have only represented a few small clients or worked at one company that happened to emphasize searching might not be aware that it’s not always done that way; but all this is irrelevant. The system permits it; searching is not always done; and patent attorneys howl with outrage at proposals to require searches. And even if they were required it would not improve quality overmuch.

They imply that they have never heard of these patent mining sessions I speak of. Gasp, it’s just not done! Nonsense. Many companies push inventors to submit disclosures–they pay them thousands of dollars in bonuses to incentivize this–and for many of companies it is, at least in part, at least a numbers game. It is very common for a weak application to be filed just to see if even a narrow patent is issued–hey, maybe it’ll slip by the examiner. And it “counts” as another patent on our stack, don’t it? We all know that the patent standards of obviousness and novelty are ambiguous, non-objective and vague; that it’s not possible to be sure you have found all the relevant prior art; that the PTO is just an incompetent government bureaucracy (in fact it’s widely observed among patent lawyers in the US that the European patent examining corps. is (for some reason–maybe because it’s in Germany) much more competent than the US one).

As for the ridiculous contention that patent mining sessions as I describe are the stuff of fantasy–I’m loath to have to even go through the tedious work of demonstrating what is widely known in the patent bar but, sigh, okay. Here are just a few I dug up with easy searching in my own files.

Take for example a patent strategy book I have, Stephen Glazier’s Patent Strategies for Business (I have an earlier edition; the current one is here). Just skimming its table of contents gives one a taste of the wide variety of strategies companies and their patent professionals engage in–most of them are quite obviously market distorting, protectionist, extortionist, and so on.

For example, Chapter 1 lists “Five goals of patents”:

  1. Protection of a Company’s Products, Services, and Income
  2. Generating Cash by Licensing Patent Rights to Others
  3. Obtaining a Legitimate Monopoly for Future Exploitation
  4. Protecting Research and Development Investments
  5. Creating Bargaining Chips

Chapter 3 is “Invent Around your Competitor’s Patent (and the Antitode), and Other Patent Strategies”, and covers, inter alia,

  • The Picket Fence Strategy
  • The Toll Gate Strategy
  • The Submarine Strategy: Old and New
  • How to Submarine a Picket Fence
  • The Counter-Attack Strategy
  • The Stealth Counter-Attack
  • The Cut Your Exposure Strategy
  • The Bargaining Chip Strategy

Chapter for teaches you how to “Prevent Product Re-Use With Patents,” and Chapter 7 has topics such as “Three Practical Tips: 1. A competitive Advantage” and “Due Diligence as Industrial Espionage.” Chapter 9 discusses “Patent Litigation As A Business Tool.”

Do these corporate shenanigans sound like the kind of creative, innovative activity most people have in mind when they think of the patent system?

And of course there are various methods companies employ to drum up invention disclosures. From p. 3:

A Nine Step ProgramDeveloping a strategic intellectual property management program can be accomplished in nine basic steps. The following discussion focuses on patents, but analogous steps apply to copyrihts, trade secrets, confidential information, and trademarks.

1. Obtain Disclosure of Inventions. One effective way for some companies to encourage employees or consultants tp disclose their ideas for inventions is to offer a program of cash incentives. This is typically a one-time paymetn or a regularly paid percentage of the income resulting from an invention. In some companies, patent disclosure forms are distributed periodically as a way of soliciting useful ideas regarding inventions.

Another effective method has been for patent counsel to meet with a company’s technical people to ferret out together innovations that may yield patents of value in the marketplace. It can be particularly useful to do this with a focus on a new product or service just before its market introduction. With companies with a particular intense product development schedule, scheduling regular monthly meetings of the sort can yield good results in identifiying important opportunities.

Glazier’s advice is very good–he is talking about how to exploit, use, and navigate this artificial, state-created mercantilist system.

Such techniques and strategies are widespread. That’s one reason companies have in-house patent departments and hire outside patent law firms. For example, one presentation of services a patent firm was pitching to me included:

Recommended patent strategy:

  • Analyze current/future business directions
  • Identify targets
  • Identify defensive risks
  • Develop patent portfolio management strategy aligned with business strategy
  • Tune your claim drafting strategy to your business objectives

Another part of their presentation, on “Harvesting and Mining Invention Disclosures,” listed these services:

Harvesting

  • Train management and engineers with written materials
  • Lead Blue Sky and disclosure harvesting sessions

Another service is “Portfolio Analysis For Licensing/Assertion

“.

Another patent attorney I know of has what he calls a “market-domination approach to patent law”.

Another book is Strategic Patenting, by Robert Fish (I have the pre-publication version): it covers topics such as

I. B) Cost-Effective Patenting Produces The Broadest And Strongest Patents. (1) Focus On Patenting As A Critical Component In Defining Goals And Resources.(2) Choose The Market With Patentability In Mind [NSK: obvious market distortion caused by the patent system]

(3) Target Patent Strategies To The Choke Points [NSK: protectionism...]

As for ginning up invention disclosures, the book has this section:

II. B) Gathering Information • (1) Invention Disclosure Forms (Memos of Invention) • (2) Information Gathering Discussions

Some elaboration from the text (of my draft copy):

(1) Information Gathering DiscussionsThe lazy-man’s way of drafting a patent application is to have the inventor draft a lengthy disclosure, and then beef up the disclosure with a few claims. Don’t do that. That process almost always results in bad patents.

The better practice is for the patent attorney to (a) discuss preferred embodiments with the inventor in considerable depth, and then (b) go on to brainstorm alternative embodiments with the inventor. My experience is that the patent attorney should obtain a brief understanding of what the inventor thinks he invented, conduct a search of the field, and then have a lengthy discussion with the inventor to identify the scope of the invention. Shorter discussions can then be used as follow up on particular points. The lengthy discussion is usually needed because it takes awhile, sometimes an hour or more, to guide the inventor into a mental state where he is focusing on possibilities rather than preferences and actual embodiments.

The process can be rather uncomfortable for inventors. It is difficult to get the inventors to help us brainstorm the outer edge of the invention. They typically say “this is what I have invented,” and hold up their drawings or model of a preferred embodiment. When I ask how the embodiment differs from what is known in the field, they usually say that it is unique – that no one else has solved the problem in the same way they have. Well that doesn’t help us at all. I can’t claim a “unique” device. I need to know how the device is unique. I need to identify what is the smallest subset of elements that distinguishes what the inventor thinks is his invention from the prior art.

One strategy I have employed successfully with research companies is to gather together several researchers in a room for a morning, afternoon, or even an entire day. I start the meeting by identifying problems in a field of interest, and then take suggestions on what is needed in that field. To focus the group on an interpersonal level, it is usually very helpful to have a marketing person in the room, and engage the researchers in a tête-à-tête with the marketing person. The goal is to stimulate thought on what can be claimed in a patent application that would provide the company with a competitive advantage, and then work backwards to figure how those goals can be accomplished. Typically the problems are quite difficult to solve, and the solutions proffered at the meeting are only minimally practical. But I try to classify the solutions in some manner, and then figure out how to describe the classes of solutions. As long as I can conceptualize one member of a class of solutions, I can usually claim the entire class. I then go back to the office, run patentability searches on the classes of solutions, and begin drafting claims. If the claims seem broadly patentable, and useful to the company, I then go back and work with the inventors to run experiments that provide examples that support the broad claims. A good meeting usually produces half a dozen or more patentable inventions.

Yep–inventions created during the meeting, on paper only. No working models, etc. N.B., I am not criticizing Fish at all; his advice is professional and competent. These are rational responses and ways to navigate the system Congress and its corporate allies have foisted on us.

And here are some routine comments I found in some patent mining materials I have, in a book review:

“Whether patented ideas will ultimately help or hinder innovation is still under debate (see Owning the Future).In Rembrandts in the Attic, however, authors Kevin Rivette and David Kline get down to business, offering practical advice for competing in today’s intellectual property arena.

Their advice ranges from the simple to the sublime. First, they suggest, take stock of the patents you already own. Many companies are sitting on unused patents that could be worth millions. For example, IBM licensed its unused patents in 1990, and saw its royalties jump from $30 million a year to more than $1 billion in 1999, providing over one-ninth of its yearly pretax profits. And if you can’t find buyers for your unused patents, then look for companies that are infringing upon them–companies that might owe you a piece of their profits. Rivette and Kline offer “patent mining” techniques to spot such potential infringers that can also reveal where your competitors are headed and help you get there before they do. Overall, Rembrandts in the Attic is a crafty and practical guide for companies that may have untapped riches in storage. –Demian McLean

Fish’s book also goes into other strategies:

(1) Choose The Market With Patentability In MindA thorough goals/resources analysis invariably leads to a number of different markets that can be attacked. The question is, which ones should be chosen and which ones passed up. Here it is useful to map out potential growth of different markets with respect to the degree of patent protection available. In the chart below growth is mapped against patentability. The best markets are those that have both high growth and are open to patentable subject matter. High growth markets where there is little chance of securing broad patent protection will likely be inundated with competition. An example might be the wheelchair market. There will certainly be an increase in market as the population ages, but there are relatively few patentable improvements that are likely in that field. Unless there are other barriers to entry, the product will be subject to commoditization, and the margins will be weak. Markets where broad patents are likely, but have little chance of growth, will have good margins but weak sales. In this category I might find an invention that helps window washers handle work in high rise buildings. No matter how great the invention is, the market is likely to be extremely limited.

Figure 11 Choosing The Market Based On Growth And Patentability

(2) Target Patent Strategies To The Choke Points

Once a market is selected, the next step is to figure out where the choke points lie. Consider the market below, in which there are four dominant technologies, A-D. Here a contemplated patent portfolio would effectively block or render technologies A and C obsolete, but have no effect on technology B. Technology D is also blocked, but a derivative technology circumvents the patent. This market is probably a poor prospect for a new entrant. The contemplated patent portfolio, even if it could be obtained, would fail to secure a dominant position for the patent holder.

All of this, of course, harkens back to the original goals with respect to dominance in the market. An applicant can be very successful being niche or merely significant player.

Figure 12 Target Patent Strategies Based On Choke Points

The patent system encourages companies to seek state-granted monopolistic protectionism.

Again, such strategies are common. How patent practitioners can deny all this with a straight face is beyond me. From the table of contents of another book on my shelf, “Strategic Patent Planning for Software Companies: A Look at Some Current Patent and Licensing Strategies at Both Ends of the Software Spectrum: Microsoft and Apache,” by Eric Stasik (2004), for example:

The Strategic Patenting Objectives of Software Companies3.1 The Business Needs of Software Companies


3.1.1 Technology Exchange


3.1.2 Near-Term Competitive Protection


3.1.3 Litigation Avoidance


3.1.5 Royalty Income


3.1.6 Out-License Technology to non-Competitors


3.1.7 Acquire Complementary Technology from non-Competitors


3.1.8 Minimize Royalty Payments to non-Competitors


3.1.9 Product Clearance


3.1.10 Promulgate Open Standards


3.1.11 Promote Interoperability


3.1.12 Deter the Development of Alternative Technologies


3.1.13 Strengthened Position in VAR and OEM agreements


3.1.14 Preserving Future Options

Again, we see what the patent system is really for: it’s protectionisn; it’s to generate income, by extorting it from other companies by the threat of litigation; it’s to cross-license with other big companies: the cost is the patent attorney fees they have to pay to acquire their patent arsenal, but the advantage is the erection of a huge barrier to entry because small and new players have little defense against the patent threats.

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