
Mark Cuban Is Endowing A Chair To ‘Eliminate Stupid Patents’ - isalmon
http://techcrunch.com/2013/01/31/mark-cubans-awesome-justification-for-endowing-a-chair-for-eliminating-stupid-patents/
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ScottBurson
_I would also like to see a “cold room” exception. If you can show you
invented the idea using completely independent thought, you don’t violate the
patent and the patent is invalidated._

This seems to make a lot of sense at first glance. But how do you ever _prove_
that you were unaware of the patented invention?

I propose a different solution. The burden of proof should be on the patent
applicant to show nonobviousness, rather than the burden being on the PTO to
show obviousness, and _objective evidence_ should be required. The kinds of
objective evidence that could be supplied to show nonobviousness have already
been delineated by the Supreme court:

() commercial success () long-felt but unsolved needs () failure of others

For software, if you managed to get a peer-reviewed paper accepted, I think
that could also count as evidence of nonobviousness -- just how strong would
depend on the prestigiousness of the conference or journal in question. Or
maybe you could point to a passage in a textbook or someone else's published
paper to the effect that the problem you are solving had been open for some
time.

~~~
AnthonyMouse
>() commercial success () long-felt but unsolved needs () failure of others

I don't know how appropriate these are for software. The second one would
almost always be impossible to show simply because of the recency and rate of
change of the industry as a whole: How do you show "long" anything when the
market segment has only existed for five years? Likewise failure of others;
most of the problems haven't even existed long enough for anyone to have
seriously tried and failed to solve them.

And then commercial success goes the other way. Because software is so
complicated, it infringes a zillion patents by accident, so is all you need to
show commercial success that Android or iOS is allegedly infringing and you're
done because they're commercially successful? Or do you have to show that the
patent was the main cause of the success, which will then go back to almost
never being the case?

I suppose setting a nearly impossible standard that would result in a de facto
abolition of software patents is one way to fix it, but I would much prefer
just actually abolishing them. The alternative is to give the Federal Circuit
yet another opportunity to read language broadly and expand the scope of
patentability beyond what is reasonable.

~~~
ScottBurson
> most of the problems haven't even existed long enough for anyone to have
> seriously tried and failed to solve them

Bingo. Currently, it's my impression, a lot of patents are being granted for
completely uncreative solutions to novel _problems_. New technology (multi-
touch screens, for example) creates new technical possibilities; along with
those possibilities come a bunch of new problems. People are coming upon these
problems, solving them quite straightforwardly, and then patenting the
solution. It is exactly this I want to put a stop to, because I think it's
this that is doing so much mischief.

Your second point is well taken. I think you'd have to show that the patent
was a primary cause of the success -- which, as you say, is rarely the case.
In any case, commercial success depends on a number of factors, and the courts
would have to take that into account when weighing its probative value.

I don't think it's quite "de facto abolition", but yes, it is both my belief
and my intention that this change in the rules would rule out most current
software patents.

The few that remained would be for truly novel technology that would solve
problems that were well known to be difficult. And _those_ , I think, deserve
to be patentable.

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lukejduncan
Can someone please clarify what it means to "endow a chair." I get from the
article it has something to do with the EFF but no idea what it actually
means.

~~~
Wilduck
It means that he has donated enough money to the EFF's endowment[1] to fund a
position at the EFF in perpetuity. That is, it's a big enough chunk of money
that it can sit in an investment account, and the interest can be used to pay
for a person's salary and other costs.

Calling it a "chair" just means that Mark Cuban's name gets associated with
the position, and the role comes with specific instructions. In this case,
fighting stupid patents.

<http://en.wikipedia.org/wiki/Financial_endowment>

~~~
adventured
That isn't the case here. While it's a nice sum of money, Notch and Cuban
agreed to give $250,000 (the news broke back on Dec 20th about this). That
won't be enough to perpetually fund a position, but perhaps enough to hire two
lawyers for a year.

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rogerbinns
You know who always wins? Lawyers are used in the litigation (for both
parties). If you receive a letter written by another lawyer, you'll need to
consult one in order to tell them to get lost. There are essentially no
downsides to all the lawyers other than their clients no longer being able to
pay.

40-50% of Congress and Senate are lawyers. I would be astonished to find them
voting against their own profession's best interests.

~~~
monochromatic
Legislators should be required to have law degrees. Think about it: _they
write the laws._ How is it a bad thing that they're equipped to know how
they'll be interpreted?

~~~
lutusp
> Legislators should be required to have law degrees.

Yes, and authors should be required to have English degrees before inflicting
their opinions on the public, musicians should be required to have music
degrees, philosophers should have philosophy degrees, and so forth. In short,
people without degrees should have no right to take part in public affairs.
Right?

If this system were in place, Albert Einstein would not have been allowed to
submit his first physics papers for publication. And Abraham Lincoln, regarded
as one of our most remarkable presidents, would have been barred from running
for office (he had almost no formal education of any kind).

Possession of a law degree -- or any degree -- should not be a precondition to
take part in public affairs. That's why we have a voting booth -- that's a
much better competence filter than a sheepskin. But only if voters are
educated and skeptical.

~~~
monochromatic
The difference is that I'm not required to read any particular author's books.
Following the laws is more compulsory, and I think legislators should be held
to a more rigorous standard.

~~~
lutusp
> I think legislators should be held to a more rigorous standard.

There is a long democratic tradition (and politics is as much about tradition
as it is about common sense) that says representatives should resemble those
they represent. This is why there are two houses of congress -- the house of
representatives (aptly named) to accommodate those who think representatives
should be ordinary people, and the senate, to accommodate those who think
representatives should be a cut above. The founding fathers also deliberately
produced multiple branches of government to avoid too much power in too few
hands.

The senate can't enact legislation without the cooperation of the "lower"
house, and vice versa. Just as the founding fathers intended.

There is a term for the kind of government you're describing -- "elitism". If
history teaches us anything, it is that people who have law degrees aren't
better at representing the pubic's interest than those who don't.

~~~
monochromatic
There's some truth to that, and I don't pretend to have a solution to this
difficult question. I remember from earlier posts that you are a lawyer
yourself, so I don't need to give you examples of all the poorly drafted laws
one comes across.

Do you think there's an ideal proportion of lawyers that should be involved in
the legislative process?

~~~
monochromatic
It isn't letting me edit my post, but I think I may have misremembered about
you being a lawyer. Oh well.

------
aidenn0
He's wrong about AMD and Intel; it's not that they don't patent the stuff they
use, they have had cross-licensing agreements for x86 for a long, long time.

~~~
bad_user
AMD started producing Intel-compatible processors even before X86, as in 1975
they produced a reverse-engineered and unlicensed clone of 8080. Doing
something like that would be unthinkable today. Also, AMD became a licensee of
Intel's architecture after IBM told Intel that they require at least 2 sources
for the chips, an agreement that Intel tried to cancel for 80360.

Back in those days these licensing agreements were more about copyright and
trade-secrets rather than patents. And AMD had to license X86 from Intel
because reverse-engineering was too time-consuming, not because they felt
threatened. The patents arms race started around year 2000, when the bubble
happened.

And it's not like Intel and AMD don't have a long history of litigation. They
do.

Basically AMD had enough time to get big and innovate or buy valuable
technology on its own. After AMD Athlon was released, the big and mighty Intel
was in real jeopardy of being driven out of the market, as Athlons were not
only cheaper, but better in every way (compared to its predecessor, the AMD
K6, which was good and with extra goodies like 3D Now, but lacked a good
coprocessor). Having to license AMD64 was probably a big embarrassment for
Intel too, considering Intel was the one that tried to introduce a new
architecture that was not backwards compatible with X86 and failed ... though
it's interesting to think about the reasons why Intel tried a new and
backwards incompatible processor and personally I think existing licensees of
X86 had something to do with it.

Of course, today AMD seems to have lost their touch. For instance I'm typing
this on a Thinkpad with an Ivy Bridge processor, that I bought because of
Intel HD, the only graphics card with which you have absolutely no problem
under Linux, as Intel's drivers are open-source. I was expecting AMD to do
things like this after they bought ATI, but unfortunately they didn't. Such a
shame.

------
gesman
I think the quickest way to do that would be to convince small country like
Antigua for example to become a patent-free zone opened for infinite
innovation.

~~~
josh_fyi
The US government has a variety of ways to stomp on such countries, hard.

~~~
georgemcbay
These ways they will use are covered by various patents but mostly secret ones
via the DTSA.

<http://www.dtsa.mil/>

~~~
trotsky
Or, you know, completely public treaties:

[https://en.wikipedia.org/wiki/Paris_Convention_for_the_Prote...](https://en.wikipedia.org/wiki/Paris_Convention_for_the_Protection_of_Industrial_Property)

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bborud
The best way to solve a problem is by not having the problem in the first
place.

Or let me rephrase that: who decide which patents are stupid?

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jthurman
I read that as 'eliminate stupid parents' and got just a little excited.

But eliminating stupid patents is a good cause too.

~~~
Cryode
Haha me too. I was about to write almost exactly this.

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trotsky
I guess it's the times we live in, but the EFF has usually managed to seem a
little more subdued than folks who would be fine with pushing a brand in
return for a donation. After all it was never "Lotus 123 presents the hacker
defense fund"

~~~
shardling
The position is called "The Mark Cuban Chair to Eliminate Stupid Patents."

Naming endowed chairs after the person who donated the money is an ancient
tradition. Like, really ancient:
[http://en.wikipedia.org/wiki/Lucasian_Professor_of_Mathemati...](http://en.wikipedia.org/wiki/Lucasian_Professor_of_Mathematics)

~~~
trotsky
Obviously its been done in universities for some time, but for example the
link in question discusses a chair that was permanently endowed via property
upon his death. A bit different than covering 2-3 years of a borderline
lobbyist for your business interests. I did a quick check of some similar
organizations, this is the only named chair in the EFF, and EPIC, FSF, and the
center for democracy and technology all don't have any.

I'm sure I'm rather biased though, as I sincerely doubt I'd have said anything
if it was the Lawrence Lessig chair.

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sievert
Why does this only seem to be a problem in the USA? This doesn't occur in
Australia/NZ but we still have patents.

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headgasket
But... but... mark cuban trashed his iphone!

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aniijbod
I have this cerebral tic where I often read stuff wrong the first time.

Upon rereading, it wasn't about parents, and it didn't involve a time-travel
paradox.

------
fennecfoxen
Mark Cuban nothing. You should see what Steve Ballmer did to a chair.

 _rimshot_

