Friday, February 01, 2008

An unwitting dupe, duped again?

A post on "experience not logic" is titled: A Dupe of the Opposition to U.S. Patent Reform? Me? and notes:

IP law is tasked with finding a balance between the free use of ideas to further innovation, and rewarding and restricting the use of new ideas to encourage innovators.

Although many people say such things, IPBiz does not think this statement is correct.

First, there is the confusion about innovation. IP law is about invention, not about innovation. Patent law is a trade between inventors and society. Society gets information. Inventors get a right to exclude which allows them to enter the free market. The free market fosters innovation. As IPBiz noted in 2005: Many people try to suggest that the patent system is to reward people who create a commercialized product. It isn't. The purpose of the patent system is to promote disclosure of inventions. Period.

Second, IP law is about inventions, not ideas, and the two are not the same. An issued patent gives the inventor the right to stop others from making, using, or selling that which is protected by the claims of his patent, which embody his invention.

IP Law is about giving rights to exclude for a limited time to inventors who disclose to the public inventions which meet the requirements of patent law, including utility, novelty, and nonobviousness. It's a trade of a legal right for a particular kind of information. That's it.

The "experience" blog also notes: Whatever the answer, I don't see the current bill turning the U.S. into the perceived Caribbean that is China. The actual mechanism for "piracy" within the "second window of opposition" in S.1145 is in the form of a wearing down of smaller patentees. It's a death by a 1,000 cuts rather than a swift blow from a cutlass.

On the subject of duping, Will Lewis might read:

Getting the Patent Reform Wars on Track on the topic of patent reform as a game of three
card monte.

As a footnote, while people as Kinsella consider the distinction between invention and innovation to be "subtle linguistic nuances", one can't really understand IP Law without knowing the difference between the two concepts.

Note a comment on Patently-O:

It would seem that "invention" and "innovation" have been and continue to be used interchangeably. Patent law deals with invention and disclosure. Innovation deals with changing the way people (consumers/businesses) act. The two are different, and I think we are all wise to use the two terms carefully. I can't claim credit for this - Lawrence Ebert wrote a good piece (in general, not specific to genes) on patent reform in the December 2006 issue of the Journal of the Patent and Trademark Office Society that got me thinking about this. Vol. 88, No. 12 p.1068. He also has some interesting calculations for those interested in the allowance rate post. Check it out . . . sorry if someone else posted something on it that I didn't catch.


Blogger John said...

To paraphrase, you say innovations are the changes to behavior while inventions are distinct products/entities. That is an interesting to define innovations, and certainly the case of the most explosive innovation of late, the ipod, fits into your definition of innovation as portable music has been around for awhile. But what about improvements to an existing product (or invention) that significantly changes that product and results in a new invention? In that case, the innovation refers both to new invention and the process of arriving at the new invention. This is splitting hairs perhaps but in line with the conversation of invention vs innovation.

------------ - float, vote and search for ideas AND innovations...

3:02 PM  
Blogger Duncan Bucknell said...

Go easy on Will - how about being a little more constructive?
Also, there's a lot more to "IP Law" than patent law.
I'm sure this is just a semantic point, unless you actually meant "IP Law" each time you wrote it.

2:28 PM  
Blogger Will said...


Points taken. I enjoyed reading your post. I'm sorry I didn't find it until tonight.

I used the word innovation as a sort of catch-all to include trade secrets, copyright, trademark (sort of), and, yes, patent. And, since we're both Americans, I thought that the word innovation could serve as a surrogate for "Progress of Science and useful Arts." PATENT law is then partly about promoting the disclosure of inventions because disclosure helps progress the useful arts letting others no about an invention. But, inventors want to protect their inventions by not disclosing the invention as long as possible for reasons I got into in the post. A first to file system pushes up the date of disclosure by at most a year, and this can the hurt the bottom line.

I can't agree with you "that the [purpose of the] patent system is[n't] to reward people who create a commercialized product." I'm going to be real obnoxious and start with the Constitution again: "by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." Even in 1789 it was well known that if someone has an exclusive right to something, they can exploit it for commercial success. And, from what I understand, one American Dream is to invent something that everybody needs, sell one to everybody, and filthy stinking rich. One needs a patent system for this... Plus, don't patent and copyright laws have their origins not in some theoretical argument about the promotion of invention (or promotion of disclosure), but in the commercial rewarding of inventors and authors (or printing houses that were buddy-buddy with the king)? Isn't this promotion theory relatively modern?

I enjoyed your pirate metaphor.

I sort of enjoyed the personal attacks: 1) I already called myself a dupe, give me something novel. 2) Can you really tell which side I actually support? Sure I said I was duped, but I'm also setting small businessmen up against Microsoft and Oracle... 3) In my blog description, I've already put quotation marks around my blog's title by implying that I have no experience and logic is useless...

You sort of jumped on it, but I was real worried someone was going to say, "You can't protect ideas, you can only protect expression."

10:12 PM  

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