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11.19.09

An Inventors’ System Hijacked by Lawyers

Posted in Australia, Law, Patents at 6:25 am by Dr. Roy Schestowitz

English gentleman

Summary: An Australian patent lawyer lobbies for more patents; other examples of lawyers using the legal system for selfish purposes of profit

APART from monopolies and patent trolls, some of the biggest proponents of widening the scope of patents are actually lawyers, many of whom are also patent trolls. The patent system was originally created to reward and incentivise inventors*, not legal middlemen, but that’s just where we ended up; today’s patent system tends to be a wasteful system which provides protectionist measures in various fields, enabling giants in their respective areas to either exclude competitors or to tax them. In one form or another, we have actually said this many times before. That’s the gist of where we are today, namely a system consisting clerks, lawyers and parasites guarding their own profit. They will not let this system go without a fight and they will invest in lobbying as much they are able to milk this system. At some point last year, staff of the EPO protested over this problem and there was a strike.

TechDirt has just done some fantastic job showing what type of people defend ridiculous practices of patenting; it is sometimes people who haven’t patents but instead they exploit those who have some (emphasis in red is ours):

Australian Patent Lawyers Claim Patenting Genes Is Necessary For Biomedical Research

[...]

This is, of course, ridiculous. First of all, much of the research on these things is often done via government and university funding — and it’s often done for reasons other than locking up a monopoly on the technique. Reasons such as helping people live better lives (*gasp* — what a concept!). Or, more to the point, it’s done so that firms can sell an actual product. If they have to compete in the marketplace, that’s a good thing, as it pushes them to be more efficient and offer a better overall service, rather than just jacking up prices. And how do they offer a better overall service? Oh yeah, often by continuing to do more research and creating new breakthroughs.

These sorts of claims of industries collapsing are moral panics and folk devils put forth by patent attorneys who are really afraid that it’s going to hurt their own business.

TechDirt has also found this new AP report which says: [via]

Jackpot: Lawyers earn fees from law they wrote

Every lawsuit filed or even threatened under a California law aimed at electing more minorities to local offices — and all of the roughly $4.3 million from settlements so far — can be traced to just two people: a pair of attorneys who worked together writing the statute, The Associated Press has found.

That is pretty much what one finds in patent law too; it’s about using and bending the law to increase profit, not to increase value to society (“innovation” for example).

Our reader Jose X has had the following to say about this problem:

Bad laws don’t last forever

I’d love to hear the argument that a broad description of something (the patent claims), which keeps the whole world from using or experimenting with anything that falls under that general description and hence remove as well the incentives (to everyone but trolls) for “improving” such a broadly described invention, somehow doesn’t stifle and slow down innovation, at least as these patents add up and start getting enforced so that the “wow” of the patenting system wears away.

If you create great software, good for you. Sell it or share it or do whatever you want. It’s illegal to infringe on my rights to also build great software. One of the exceptions possibly being that by infringing on my rights (and on the rights of everyone else on the planet) that this will somehow promote progress.

Remember, every single necessarily broad (and useful) patent removes rights that everyone had prior to that patent. And this presumably can happen for 20 years (a large fraction of each inventors/users productive life). So patent after patent handcuffs all inventors further and further. The better the patent, the stronger the handcuff, even if other very smart inventors find the (broad) invention obvious, have already made the discoveries/inventions in essence, or could within days, weeks, or months.

The necessarily broad patents, very possibly written up by someone that doesn’t really have very deep knowledge of the area, prevents those with real knowledge and many years of work from continuing along perhaps some very important path (at least this is the case if the patent vaguely describes an important path). All patent claims are quite vague. It’s easy to get the general idea down without knowing the nitty-gritty details and deeper implications and implementation details.

Software and the Internet have enabled virtually everyone to participate and contribute to society as inventors and inventor’s aids: to invent things and sell or share them or use them however they want. We aren’t talking about billion dollar factories whose control and reconfiguration is inaccessible to most people because of the extremely high price tag to play that game.

Software patent advocates, meanwhile, want to prop up the existing market leaders (who are already protected by copyright monopolies and by the very successful trade secret protections that foil interoperability) by preventing competition from less well funded and smaller competitors and from those collaborating on open source. In short, to prevent real competition from the very many hungry and competent folks lying outside the castle walls.

The only justification they have left is: “but the law says I can because the law says I can get 20 years of exclusive access because I wrote a description for something that (gulp) is new and nonobvious to the majority of laypeople — I mean, practitioners. So there.

Fortunately the Constitution trumps bad (and illegal) laws.

BTW, software stands out. I don’t see anyone ever copy/pasting/editing/manufacturing/redistributing a skyscraper with rocket boosters at virtually $0 and 0 time in the material world. But such is absolutely possible with software.

Software is open to all. Any monopoly on software (if it’s over something important) will likely have GARGANTUAN opportunity costs for society.

Remove my rights and incentives (and everyone else’s) to develop thoughts so that they can sit on these for 20 years. Yeah, no wonder some with savviness and money support software patents.

The transition from developed thought to implementation is trivial for software. The reason is because of how precise is the math that lies as the foundation of digitalization, where the abstract models and the physical models, for all intents and purposes, work identically.

And still, some with supposed experience in the field (and assumed honesty) state that software inventions are no different than material inventions and/or should not be treated differently.

Wow!

Some of those people just happen to be patent lawyers, to whom more patents mean more revenue.

“Staff at the European Patent Office went on strike accusing the organization of corruption: specifically, stretching the standards for patents in order to make more money.

“One of the ways that the EPO has done this is by issuing software patents in defiance of the treaty that set it up.”

Richard Stallman

____
* Or to encourage more new creations, perhaps defending small inventors from companies with investors and high capacity for copying ideas. That is what the system is said to have been conceived for.

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