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Patents : Protect the Inventor Not The Largest Wallet

Techdirt is a site that I often read. It is also a site that I must make sure I am prepared to read. Why? Because while I probably agree a lot more with their insights than I disagree, postings like Innovation Is An Ongoing Process -- Not A Single Event will fire me up in a hurry.

This posting is one of many by Techdirt that slant against the current patent system. I, like Techdirt and most other sane people, believe reform needs to be done. The divergence however (as a person who has experience with the current system) comes in the understanding and viewpoint from a small entity/ individual point of view.

Techdirt takes the stance that innovation is different from invention. I am not going to argue this point - even though I do not think it is completely correct. The real problem with the article is how they equate market dominance as innovation. This is absolutely wrong. According to that philosophy innovation would essentially boil down to market position and dominance, regardless of what may happen long term.

Both here and in the current article Techdirt states: "Invention is just about coming up with the concept. Innovation is about successfully taking a product to market."

Do you see the issue here? Lets say you are a single person that invents something? Name it. I will stay away from software because Techdirt does not care for software patents, so lets pick a way to take a drop of water do cold fusion. Or how about a method for transporting something from one spot to another almost instantly. The what does not really matter. What matters is, you have worked for several years putting it together, going over how it would work, inventing the process... doing something that everyone said was impossible. People told you that you were wasting your time. You get the picture.

However, after working for years spending every dime you make in your day job on getting the invention to work, you complete it. Whala, you have success! Now this is where the Techdirt problem comes into play. Let's leave out for a minute that you currently have patent possibilities... What I want to look at is no patent protection, because after-all Techdirt states innovation is what needs to be looked at (not the invention).

You know to produce the products you need a million dollars. You do not have said money. You must go out and look for it. You go out trolling... oops, I mean looking for investors or companies to bring it to market. But guess what - the word gets out and people hear about it. After-all, this is groundbreaking stuff here.. While you are out looking to either license your invention or get investors to start producing your invention, something happens.

MicroTransport or GooglEnergy company gets wind and hears about how you have created this great new invention. They hear from their sources about the generals of how that have leaked out or come from one source or another. After-all, no one is going to invest or license your invention if you do not show them how and if it works.

They get the picture one way or the other. NDAs? Who cares, there is no patent protection on your invention because you have not "innovated" yet by bringing it to market - it is fair game. So they gather up their forces and immediately shift and or hire a hundred/ several hundred people to get right on it. They spend 2 billion dollars to catch up and get to market before you or anyone you are trying to get to license it can move on it. They succeed in getting it functioning and get the first iteration testing to market.

In Techdirt's world this is just and right. In Techdirt's world, whomever has the largest pocket book and means of getting to market equals innovation. Who cares about the inventor that discovered and pioneered it all. Who cares if they were wanting to license it out or start a company to produce the products. If I have more money then you and I can get 100 people working on it, tough luck - go home. Who cares about if they deserve a piece of the pie...

I care. Big company or small, I care and believe the inventor should have the right to have the opportunity to do so and the ability to license it. That is essentially what the current patent system time grant allows for. This is where I think there perhaps should be reform, such as a showing of reasonable action to make something from the invention. In other words, if you are attempting to either add to it for market purposes or actively seeking license, then you are okay. If however you are just sitting around well after others have either ripped it off or believe they invented it themselves, all the while knowing you are planning on springing a trap - then this is an area that needs to be looked at. In this sense, bringing a trademark like action to the patent arena, where you are actively protect your invention as you are continuing to work on doing something with it. Either way, something like that is reasonable and combats what essentially amounts to invention squatting.

However, coming up with arguments that essentially make it an arms race of dollar spending makes no sense for anyone, large or small, attempting to invent/ innovate. There are certainly other reforms such as a peer review process that could help weed out dubious patents, but somehow twisting things around such as making innovation all about market success is in a word - wrong. (It may even be patently absurd)

Articles like this are why (like drinking caffeine) I try to stay away from Techdirt after 6pm. In the land of Techdirt, Abe Lincoln is a patent troll.

Ben
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Hi Ben,

Thanks for the thoughtful response. However, I think the problem here is that you set up a very specific situation to prove your point, and that's a problem. It's a bit of a strawman, because you make a few assumption that aren't necessarily true (and, I would believe unlikely to be true).

A point that you suggest I am saying, which I do not agree with, is that whoever has the most money wins. I can see why you think I have said this, but I haven't. Obviously it's a point that I need to explain more clearly, so I apologize if you thought I was implying that. I was not.

The idea that whoever has the most money automatically wins is false. Those with the most money are often slower to move, saddled with legacy issues and have other problems. Newer companies, with less money, can quite often be much more nimble and much more innovative and can get products to market successfully, where large companies cannot. In fact, having less money often makes them more creative in how they achieve these innovations. We see it all the time.

Second, if you've truly invented something new, that is "non obvious to those skilled in the art," (which is what you're supposed to have if you want a patent -- even though the system doesn't actually follow this rule) then it's not quite so easy to just throw money at the problem to solve it. Clearly, you've done something special, and simply throwing money at it won't necessarily replicate it.

Finally, if you really are so brilliant to have come up with this idea that no one else could have figured out, then, again, I would assume that you should be able to continue to innovate and improve on the idea well ahead of your competitors. They're going to spend their money *catching up* to you. And since you know the invention inside out, you not only have the first mover advantage, but you can make the improvements on it that they can't.

That was the point of the post -- to focus on how it's that continual process of innovation that lets the inventor succeed, not the patent protection. The patent protection encourages him to rest on the laurels of the invention.

I hope I have made the argument clearer here, and I apologize for the confusion (especially since it "fired" you up).

Thanks again,
Mike

Hi Mike,

I appreciate that you have taken the time to post here. I believe I understand what you are saying. However, the scenario I have laid out I believe is highly likely. I personally have witnessed it on two occasions.

First, a biochemist discovers how something works and then creates a new compound to be used for things relating to clotting (such as DVTs). As is commonly done in the science world, some of the information was presented at a conference... Not all, but enough where people had the aha moment. Long story short, a large pharmaceutical company in attendance gets the missing information they need to make a leap from where they had been and then poured money into it. In this case, patents were filed and ultimately it has been in the court system for the better part of 15 years, hanging in limbo. I believe this has been finally resolved after the original inventor was able to substantiate they in fact came up with it first and things were presented. The point being, this is one example (of what I believe are many, many more) where the court system worked to protect the patentor (albeit too long). This is also a case where a larger company had been floundering on their own ideas for years, only to receive the nugget of information they needed to change course and this is where the money advantage comes into play.

Second, I personally have had this happen to me. After discussing the methods and means of something invented, we were given an offer or sorts. The offer was woefully low for what was considered to be worth a lot more (even to the offering party). When this was refused and a counter offer was made - the response in part was "Patents? We do not care about patents. Go ahead and sue. We have (x) dollars and can spend this into the ground." The point being, they made an offer that was low, regardless of fairness, knowing they had enough information to get them in the right direction. Knowing that they could outspend the small time outfit into the ground if need be. This is where your assertion about being trivial falls a part. In visiting with others and through normal leakage, information comes out that was not "trivial" and not complete, but provides the guide and germ as to how something can be done.

Another example, and one that is too easy to point to is the Burst vs. Microsoft case. Ultimately that would fall into the same spectrum as what I described, where the court found that Microsoft essentially took the information and went about the recreate it after gleaning as much information as they could over time.

These also point out the issue that I already touched on about catching up. Part of the invention is the aha moment, the way that something has been thought about and looked at. The germ of what makes the whole things unique.. When that gets out, there is nothing to say it does not become obvious what one can do with it. For example, Dyson and bagless vacuums. It certainly seems obvious that today that having a vacuum that is bagless is or can be better then spending money on bags continuously. In fact this is why Dyson was turned down. However, the issues solved to make it bagless become obvious once it is out, thus the need for patent coverage. Would it be right for Hoover to look it over and reverse engineer the process and then bring it to market? This can easily happen to a company that does bring a product to market but perhaps does not have the means of initially having the cost be as low (not as many relationships with manufacturers etc.), but the product is out and in the future the price will fall with the increased demand. However a large company like WalX comes in and is able to reverse engineer the basic design and get it out for a cheaper price. Certainly this is good for the consumer but is it right? Does this sort of thing actually make the inventor want to invest their earnings, time and savings into an idea, only to have it taken away once it is out? No, I think this is where they should at least be able to license it.

I agree with you that innovation is not static. But with all due respect, I cannot agree with the assertion that your argument does not favor money. Additionally, everything becomes trivial and or obvious at some point... this is why the protection is needed at the outset, so you have the chance to bring it to market or license it. What electrician would not say various electrical elements are not trivial or obvious? Hindsight enables that. Once the "cat is out of the bag" it is easy to say that something is obvious or trivial. However, was it at the time?

On a secondary note, to your point of "I would assume that you should be able to continue to innovate and improve on the idea well ahead of your competitors", the same could be said in reverse. Why can't they create something that is slightly different or an improvement upon the way the original was done? If they can't, does that not make a point?

Thanks again for your comments. I enjoy discussion about this, even when it "fires me up". That is part of the fun. As I stated before, while I agree improvements need to be made, I believe it should be done in such a way that protects both large and small. (which also brings us to a probable disagreement over injunctive relief).

Ben

On the subject of the patent system being an impediment to inventors (also Innovation Is An Ongoing Process -- Not A Single Event), please see

http://ipbiz.blogspot.com/2006/05/do-patents-tend-to-harm-inventors-part.html

howdy guys how are ya'll doing?
to start off i have a few problems i'm a so called inventor its something i've done since i was a kid. ya'll know the whole spill evereone tells you, you won't amount to any thing, get a real job. now i think i've got a good invention but don't have the money to build a prototype. thats only one of my dilimas, then i still need a patent but its a utility patent and that is 1,500 to start off heck it could end up 10,000$ by the time i finish the whole thing. then i will still need someone to build it or a company to buy it from me or whatever money looks the best. my invention is going to change the world and that is not an over statement. i'm just seeing if ya'll can find investors for me or something along those lines
thank ya'll
greg

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