You Shouldn't Have To Hire A Patent Lawyer Before You Can Innovate

from the predictability dept

One of the persistent themes I noticed at Wednesday's patent conference at the Brookings Institution is that most of the lawyers seemed to assume that if the legal system ultimately reaches the right conclusion—invalidating a bad patent, say—that this means that the patent system is working well. Some panelists suggested that the Bilski decision, which struck down one particularly egregious "business method" patent, shows that there's not really a problem, because the courts are recognizing the problems with bad patents and correcting them. They seemed not to fully appreciate how slow and expensive the legal system is. One only has to think back to the great BlackBerry showdown to see that having the legal system eventually invalidate a bad patent may not be good enough. Even if the law is on the side of an accused patent infringer, the time, expense, and uncertainty of litigation can kill the firm before its rights can be vindicated in court.

I think the right way to think about patent reform is not whether the courts eventually reach the right result, but whether the system is predictable enough that you can tell in advance what the law requires, without hiring a patent lawyer. After all, this is how well-designed property rights systems work. I didn't need to hire a property lawyer to tell me who owns the apartment I'm living in—the rules of real property are predictable enough that I could figure it out on my own. The vast majority of property transactions are the same way—lawyers only get involved in exceptional cases that involve large sums of money or tricky legal issues. By the same token, if we're going to have patents on software (or in any other industry), they should be few enough and clear enough that a smart entrepreneur can figure out in advance, without the help of a lawyer, which patents he needs to license. If our current patent system isn't living up to that standard, the solution isn't to come up with ever-more-complex legal doctrines trying to separate the "good" vague patents from the bad ones. Rather, the solution is to restrict patenting to those fields where it's possible to make things clear and predictable. If that's not possible in some industry (and I suspect it's not in software), then that's a sign that patents aren't an effective way to promote innovation in that industry.

Timothy Lee is an expert at the Insight Community. To get insight and analysis from Timothy Lee and other experts on challenges your company faces, click here.

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Overzealous Trademark Holder Tries To Stop Blogger From Using The Phrase 'Branded Community'

from the this-again? dept

In a culture that has everyone thinking that you can "own" ideas, it's no surprise that we see such regular misuses of things like trademark law to pretend it conveys traditional property rights on the holder of the mark. As we've explained all too often, the purpose of a trademark is consumer protection -- to keep someone from being tricked into buying Bob's Cola, thinking that it's Coca Cola. However, with so many stories promoting "intellectual property" in the news these days, it's no surprise that some trademark holders think it gives them near total control over the mark.

Take this bizarre case as an example. A blogger on ZDNet had a post about "enterprise communities" where the phrase "branded community" was used. That's a descriptive use and a perfectly reasonable one. Yet, the owner of some marketing firm wrote a semi-threatening letter claiming to hold the trademark on "branded community" and demanding that the blogger "refrain from using the phrase in any other current or future materials."

Of course, that's a complete abuse of trademark law, which does not grant the holder the ability to prevent all usage of the phrase, only usage that might cause confusion with the goods or services related to the mark. Using it as a passing phrase in a blog post does no such thing -- but it already scared off the blogger, who changed the phrase in the original (though, thankfully, posted the threat letter with a detailed response). Either way, it's yet another sign of the times, when people start thinking that a trademark allows them to prevent people from using a perfectly normal descriptive phrase like "branded community."

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Too Much Ownership Can Be Bad For The Economy

from the going-beyond-what-should-be-owned dept

When we talk about intellectual property around here, one of the popular responses from those who disagree with what we say is that "property rights are a central tenant of capitalist economies, and you're trying to take away property rights." That's not quite true. Property rights are indeed an important part of capitalist economies, and we are supporters of property rights -- but only for things where property actually makes sense and is necessary. The whole reason why property rights exist in the first place is to manage the efficient allocation of scarce resources -- that is to make it clear who controls a specific scarce resource. Property rights don't make much sense when a resource isn't scarce, because there need not be any question of how to best allocate it, since anyone who wants it can have it. In those cases, adding property rights actually makes the market less efficient by limiting the allocation.

With that in minds, it's great to see that there's apparently a new book that touches on this very subject. Against Monopoly points us to economist Tyler Cowen's brief review of a new book called: The Gridlock Economy: How Too Much Ownership Wrecks Markets, Stops Innovation, and Costs Lives. The book apparently focuses on the "tragedy of the anti-commons," which is the situation when too many limitations are placed on how certain goods can be used. Sounds like an interesting book to add to the collection of books recognizing the economic problems that can come with putting property rights where they don't belong.

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Patent Attorney Stephan Kinsella Presents On Why We Need To Rethink Intellectual Property

from the good-for-him dept

If you've got a spare 40 minutes to an hour, it's worth watching patent attorney Stephan Kinsella's presentation: Rethinking Intellectual Property Completely, as given in March. The video is embedded below, and it fits in nicely with my ongoing (yes, there's still plenty more) series of posts on intellectual property. It's pretty rare to see a patent attorney explain so lucidly the problems with patents (and copyrights):

He does a very nice job ripping apart the "property rights" arguments that some, especially some libertarians, use in favor of patents, explaining why that doesn't make sense. It's an excellent presentation, and well worth watching.

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Open Does Not Mean Communal

from the kill-this-myth dept

I hesitate to post anything that involves Scott Cleland, a telecom "analyst" who has a bit of a reputation for, well, perhaps stretching the truth in order to make a point that supports the big telcos who pay him to be a public advocate. However, with InfoWorld positioning him as a legitimate critic of the FCC's open spectrum rules and hearing him make statements like: "Everybody throws the word 'open' around and says open is wonderful. But 'open' means communal. It means not owned," it seems a response is necessary. This is an old trick used by those who can't actually come up with a reason why "open" systems are bad. So they fall back on the false claim that open means communist, and that's bad.

There are just a few problems with this statement, with the big one being that it's completely wrong. First of all, "open" hardly means communal or communist. In fact, it often means exactly the opposite. It means creating a platform or a standard on which multiple parties can compete, as capitalists, rather than locking people out via a government-granted monopoly. Also, the smear that "open means not owned," is used to suggest that open systems are somehow antithetical to property rights. Again, this is hogwash. First of all, when discussing spectrum, we're never talking about property that is owned anyway -- merely a bit of the air that is licensed. Spectrum is, by it's very nature, the property of everyone. That's not a "communist" idea -- it's a factual one. The various spectrum auctions aren't about owning property, they're about getting a license from the FCC to be able to do something with the spectrum that is already around us.

What Cleland is really arguing for is the idea that it's better to have government-granted monopolies limited to a few big providers (mostly the ones who back his firm), rather than a more level playing field that creates real competition in a real market. For him to suggest that an "open" system is somehow less capitalistic than one that involves a gov't agency granting monopoly rights is simply laughable.

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