[Patents] Re: Konno 1995: The Karmarkar patent and Software -- does math patenting work?

[phm@a2e.de (PILCH Hartmut)]

Ronald Riley replied:

> > Interesting.  I have dealt with three different Japanese companies who are
> > infringing my patents.  All three were incredibly dishonest.  In fact 
> > worse
> than
> > American multinationals.
> >
> > So why are the Japanese bad mouthing American attorneys?
>
> <<They aren't really doing that, as far as I can see.
> The book rather seems to be talking about a loss of checks and balances in
> a certain part of the american political economy.>>
>
> The checks and balances have been fairly constant for 200 years.  There is 
> no
> loss of those checks and balances.  What we have is a coalition of large
> companies, including Japanese companies, pushing to weaken patent protection
> because they are getting their tails kicked in court for blatant theft.

The cited book says that the US is spending a much higher percentage of
its GNP on litigation than a few decades ago, let alone 200 years.
By "checks and balances" I refer to the fact that lawyers are making laws
that make lawyers get more money and power.  This kind of self-reinforcing
cycle needs a counter-balance.

> > Well the reason is simple, they are getting their backsides kicked in
> > American courts because they are ripping off American inventors.
>
> <<The problems of individual American patent-owners enforcing their claims
> against Japanese companies may be of great importance from your point of
> view.  But not from the point of view of that book or of Japanese
> businesses.>>
>
> You are missing the point that it is important because American inventors 
> are
> kicking their butts.  They are losing big time.  and that is why they are
> spending hundreds of millions of dollars trying to change our patent system.
>
> >From the big business point of view, patent extortion by small entities is
> a nuisance, especially when these small entities are not selling products
> but only marketing patents.
>
> > Now lets look at why.  Japan is good a production and small
> > incremental improvements of product.  This is a direct result of a
> > culture which views people as cogs in their machine.  The culture
> > viciously stamps out independent thought.  That in turn leaves the
> > Japanese ill equipped to make breakthrough inventions.
>
> <<Even if this was completely so, it would mean that they are very well
> equipped to make use of the patent system.  Most patents are granted for
> small incremental improvements.  However I have come across several
> Japanese patents on breakthrough inventions.>>

> I did not say they produced no breakthrough inventions, just that they
> produce few.  And while many inventions are small incremental
> improvements those are not of the same value as the MRI, laser, or
> pacemaker.  All of which the inventors are personal friends and their
> stories about theft are really interesting.

> <<The cultural difference that the above book is interested in is that of
> litigation.  Japanese society views small entities who specialise in
> litigation as villains.  Japanese companies avoid going to court.  You can
> of course say that this again is a result of some bad (mafiose?) culture
> pattern.  But however you explain the fact and whatever bad problems Japan
> may be suffering from, it is not suffering from the uncontrollable
> explosion of litigation and lawyer power that this book is talking about.>>

> Actually Japan would benefit from some litigation.  It is part of a
> check and balance system which Japan lacks.

Japan of course has a law system in place, and it does work as a barrier
against certain kinds of rip-off that are socially unacceptable in Japan.
So the balance function of litigation is actually working there, and
lawyer power has not by itself become a problem that needs a
counter-balance.  At least not (yet) to the same extent.

> > The bottom line is that the Japanese patent system is designed to
> > socialize creativity for the benefit of big business.
>
> <<Any patent system is designed to speed up the socialisation of ideas, i.e.
> their disclosure to the public and their diffusion into the social process
> of generating more ideas.>>
>
> In exchange for the monopoly.  The problem being that Japanese companies do
> steal.

If there is no property, there can be no stealing.
There can only be a breach of monopoly rights.

> Not only that, they do litigate.  One example being Mitsubishi, who
> sued the most prolific contemporary American inventor claiming that
> his patent enforcement activities were racketeering.  They spent at
> least $20 million, far more than the license would have cost, and then
> lost.  That inventor, Jerry Lemelson
> www.InventorEd.org/inventors/Lemelson/, is a person whom I was
> especially proud to count as a friend and soul mate.  He died three
> years ago, I really miss him.

Indeed the "patent king" Lemelson is the type of "speculative schemer"
that the patent already produced in the 1880s when an an American judge
exclaimed:

  It was never the object of those laws to grant a monopoly for every
  trifling device, every shadow of a shade of an idea, which would naturally 
and
  spontaneously occur to any skilled mechanic or operator in the ordinary
  progress of manufactures. Such an indiscriminate creation of exclusive
  privileges tends rather to obstruct than to stimulate invention. It creates 
a
  class of speculative schemers who make it their business to watch the
  advancing wave of improvement, and gather its foam in the form of patented
  monopolies, which enable them to lay a heavy tax upon the industry of the
  country, without contributing anything to the real advancement of the arts. 
It
  embarrasses the honest pursuit of business with fears and apprehensions of
  concealed liens and unknown liabilities lawsuits and vexatious accountings 
for
  profits made in good faith. (Atlantic Works v. Brady, 1017 U.S. 192, 200
  (1882)).

Mitsubishi is to be commended for investing 20 millions into fighting this
kind of activity.  But of course they were doomed to lose.  All the more
since the surge in patenting activities in the 1980s has to some extent
undoubtedly been motivated by an American desire to keep Japan and
other rising countries at bay while at the same time accusing them of
protectionism.  It is a common experience/perception of Japanese companies
that in American courts they generally can expect little justice,
especially when there is a group of layman jurors.  The situation then is
regularly similar to that of the OJ Simpson proceedings.

But trying to keep Japan abreat by patents of course doesn't work.  The
patent system is perfectly designed to be used more efficiently by
Japanese companies than by anyone else.

> <<Ideas are only private as long as they remain secret.>>
>
> Or if you have patent rights.  Maybe a better term is exclusive.

No.  Ideas are public/social as soon as they are published.  Even patents
do not change that.

> Early in my career I successfully kept electronic inventions secret by
> removing part markings, and potting the circuits in potting compound
> with an oxidizer in a capsule and a thin glass vial which had yellow
> phosphorous dissolved in carbon disulfide.  Attempting to open the
> package would cause it to burn rapidly.  So society lost the benefit
> of knowing about those inventions.  That is the point of the patent
> system, to give the inventor a reason to disclose.

The question is whether this deal is worth it.  Usually the incentive
works only if the inventor (or should we say "speculative schemer"?)
has reasons to assume that other people will naturally come across the
same idea or be able to reverse-engineer it quicky once the products
are out.  Once many people have imitated or independently come across
the idea, texts will appear in which it is fully described, because
there is no longer a point for anyone to keep it secret.  Often this
process of disclosure is quicker and more thorough than the patent system.
It may not be of optimal efficiency for society, but neither is the patent
system.

> <<Indeed I do not like the business model of the rent-seeking "small
> inventor".  It is unfair, because it unduly privileges certain types
> of creative activity (e.g. I don't get a rent for having found a great
> new narrative technique) and because it does that in a very disruptive
> way.>>

> In other words, since you lack the ability to invent you think that
> those who do have that ability should give away their creations for
> your benefit.

How do you know I am not a creative person?
I am usually not keen on imitating anything, but I do believe that in most
cases imitation is not fast enough to significantly reduce the incentive
to invent.  In the manufacturing industries, this incentive is usually
very strong and the reward is much greater than in many other industries.
This reward in most cases needn't be further enlarged by a monopoly.

> Fortunately, inventor's rights are spelled out in America's
> Constitution, and changing it is next to impossible.

The constitution says that Congress shall institute a system of limited
monopolies for the promotion of science and the useful arts.  When it can
not be shown that the system serves that purposes, monopolies are not
justified.

> In the end, if the multinational companies go too far, we will launch
> a challenge based on the Constitution, and they will lose such a
> fight.

Once the American people wake up to the fact that they are being exploited
by an uncontrolable lobby of lawyers and rent-seekers, the US constitution
will be a powerful tool in their hands, as explained above.

The spirit of the american constitution is completely different from the
mentality of Lemelson and his soul mates.

You certainly know the following quote from one of the framers of that
constitution:

 If nature has made any one thing less susceptible than all others of
 exclusive property, it is the action of the thinking power called an idea,
 which an individual may exclusively possess as long as he keeps it to 
himself;
 but the moment it is divulged, it forces itself into the possession of
 everyone, and the receiver cannot dispossess himself of it...He who receives
 an idea from me, receives instructions himself without lessening mine; as he
 who lights his taper at mine, receives light without darkening me. That ideas
 should be spread from one to another over the globe, for the moral and mutual
 instruction of man, and improvement of his condition, seems to have been
 peculiarly and benevolently designed by nature...Inventions then cannot, in
 nature, be a subject of property. --Thomas Jefferson

You may be aware that in the middle of both the 19th and 20th century
there have already been two waves that almost led to the scrapping of the
patent system.  I think we needn't wait to the middle of the 21st century
to see the tide coming back, with even greater force this time.

If the readers of this forum would prefer a less turbulent development
which could allow us to save and further develop the better aspects of the
patent system, then it is time to join our campaign.  You may repent later
if you don't come forward now.

--
Hartmut Pilch
Federation for a Free Information Infrastructure        http://www.ffii.org/
Protecting Innovation against Patent Inflation        http://swpat.ffii.org/
For a software patent free Europe PLEASE SIGN http://petition.eurolinux.org/