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A few points to help put this in context:

1. Technically, the USPTO hasn't yet "invalidated" the patent; it issued a first "Office action" in which it stated that all of the patents claims were unpatentable in view of varying combinations of prior-art references.

2. Institutionally the USPTO is very much aware of the significance of reexamination for a patent in litigation.

3. The Office action was signed by a "primary" examiner, i.e., someone who has been around the block a few times. Another primary examiner and a supervisory primary examiner are listed as "conferees." You would be right to read this as a signal that the USPTO takes these matters very seriously; the detailed written analysis (which I haven't studied) seems to bear this out.

4. The primary reference cited is a patent [1] filed in November 2005 whose lead inventor was Danny Hillis --- dare I say, the legendary Danny Hillis [2].

Another main reference is a Japanese patent publication from 2000, referred to as the Nomura reference.

5. In responding to the rejection, Apple can try to establish that their inventors predated Hillis's November 2005 filing date. This is referred to as "swearing behind" the Hillis patent's filing date [3]. But the Apple inventors' filing date is January 2007; swearing behind that far would be a real challenge. (I won't go into the details of the statute and regulation unless people are interested.)

Apple can't swear behind the 2000 Nomura publication because it was published more than one year before Apple's January 2007 filing date --- see 35 USC 102(b).

6. Paragraph 14 on page 34 is pretty typical: It says, in effect, "you'd better take your best shot at contesting this rejection now, Apple, because the next time around it will be a final rejection."

7. If, as seems likely, the USPTO does issue a final rejection, Apple can appeal, first to an administrative appellate body in the USPTO, and if necessary to the U.S. Court of Appeals for the Federal Circuit. The Federal Circuit is required by Supreme Court precedent to be fairly deferential to the USPTO's findings in some respects, but it's not entirely clear to me how that would play out here.

[EDITED FOR STYLE]

[1] http://www.google.com/patents/US7724242

[2] http://en.wikipedia.org/wiki/W._Daniel_Hillis

[3] http://en.wikipedia.org/wiki/Swear_back_of_a_reference


It's refreshing (especially to me, as an attorney) to see a correct explanation of the issues and implications as the first ranked comment.


This was a particularly well written summary, with references to the relevant parts of the document. Comments like this are why I (and I suspect many others) skip straight to the comments after a quick skim of the link, and hence it deserves the upvotes it is getting.

That you classify it as 'correct' is icing on the top.


Refreshing and somewhat shocking.


All office actions are signed by a primary examiner or supervisory primary examiner. Junior examiners cannot sign their own office actions.


From what I have read elsewhere the 'first Office action' is based purely on the criticisms of the patent before the patent owner has responded defending and justifying the details and trying to explain why the presented prior art doesn't apply. I understand that it is common for many of the claims to eventually upheld even when the 'first office action' goes against them.

This seems to be one step of a number of the way to invalidation but far from a knock-out blow for the whole patent YET. There is a range of possible outcomes including total invalidation, the patent being upheld and perhaps most likely some claims being invalidated narrowing the scope of the patent and making it easier to work around it.


You're correct that it's not a knock-out blow --- at least not yet.

Apple could try to convince the patent examiner to change his mind; that strikes me as an uphill battle for them, given the extent of the examiner's written analysis. Or Apple could propose amendments to the claim language and try to convince the examiner that the amendments overcame the rejections.

If Apple were to amend some or all of claims that are pending in the Apple v. Samsung lawsuit, that could have a major impact on the outcome of the lawsuit under the doctrine of "intervening rights"; for example, any portion of the damage award attributable to the amended claim(s) might go away [4].

[4] http://www.guttagiplaw.com/publications/patents/INTERVENING_... (especially page 6)


It's curious that Samsung's lawyers didn't manage to bring about the invalidation during trial, if its lack of validity was evident enough that the patent office is now retracting it. I'm curious if

a) Samsung did present the evidence that the patent office relied on to invalidate but it was rejected by the jury

  or 
b) Samsung wasn't allowed to present it for some reason

  or
c) Samsung didn't try to present it

Option a) or b) would provide yet another indication of a miscarriage of justice in the trial. Option c) would be be an indictment of Samsung's lawyers who seem to have performed quite poorly in many respects.


The law imposes different burdens of proof for invalidating a patent in court, versus in a USPTO reexamination proceeding.

In court, a party asserting that a patent is invalid must prove invalidity by "clear and convincing evidence," which is the highest standard of proof in U.S. civil law (that is, non-criminal law).

In contrast, suppose that the USPTO decides that a "substantial new question of patentability" exists and therefore initiates a reexamination proceeding. In that situation, the patent examiner need only show invalidity by "a preponderance of the evidence," which is colloquially summarized as 50.000001%, just enough to tip the balance of probability. It's also commonly phrased as "more likely than not."

(EDIT: Strictly speaking, the burden of proof applies only to facts, not to the ultimate conclusion. Here, the facts --- namely what the Hillis and Nomura prior-art references say --- are are essentially beyond dispute, although I suppose conceivably Apple might find some technical grounds to allege, as a matter of fact, that at the time in question, persons of ordinary skill supposedly would not have understood those references to mean A or B or C.)

Perhaps more importantly, in the court case, a non-expert judge and jury had to assess the prior art. In the USPTO reexamination proceeding, three experienced patent examiners did the assessment.


Yeah, I don't get the impression that Samsung's lawyers were the snappiest sharks at the beach. Their incompetence at letting Hogan slip through voir dire is hard to get past... unless they saw it as a deliberate opportunity to have an unfavorable verdict thrown out, I guess.


I would give the team some credit, given the time constraints (they had a lot of other jurors to check, too), and the degree of apparent deception or confusion on Hogan's own part.

Consider timelines, too. Even with all of the oddities in the jury results, the degree of Hogan's specific involvement in swaying the jury only came light after his own public interviews.


Are you sure that pinch to zoom was one of the issues for the Samsung suit? All I recall is the "rebound effect" when you reach the end of a page, and the physical design of the galaxy tab


Yes it was. According to Groklaw, Samsung has already pointed the re-examination results out to the court, as this patent made up a solid chunk of the infringement the jury found, and hence the damages number presumably needs to at the very least be adjusted. However, the jury didn't indicate how they apportioned the number, so this might be another way for Samsung to get a new jury trial on at least parts of the issues.


Yeah, I had the same thought ... but multiple sources are reporting that it was one of the patents at issue in the trial. I think it's not a generic "pinch to zoom" patent but specific logic for distinguishing a pinch to zoom from other gestures.


The "office action" that rejected the patent was just issued (mailed) today, which is why it wasn't brought up before.


Samsung is from Korea, Apple, the judges and the USPTO are from the US.


Nice of them to invalidate them - now - after they already passed them and Apple already used them in lawsuits - and won with them. But better late than never, I guess.


I'm hoping it's a sign of change within the Patent Office. If this becomes a regular occurrence I'll be extremely happy.


This isn't something that was initiated within the patent office. An external attorney filed a reexamination request, paid for it (thousands in fees), and included literally hundreds of pages of explanation as to why the patent should be struck down, with references to hundreds of pages of prior art. From that, it is much easier for an examiner to determine whether the patent should be struck down.

This is not something that a patent examiner has the tools, training, and, most importantly, time to do on initial application. So I wouldn't expect any changes from the patent office itself.


> This is not something that a patent examiner has the tools, training, and, most importantly, time to do on initial application.

... which then begs the question: If the USPTO cannot do adequate research for granting a valid patent, then why are they granting patents?


They have a mandate to grant patents. They have a certain budget to fulfill that mandate. I imagine (although I don't know) that they do the best they can to grant valid patents within those constraints.


I don't think the patent office is under any obligation to grant any particular patent. If they are unable to properly process a patent application, the consequence should be a decade long backlog that forces lawmakers to make a more sensible law, not a mountain of bogus patents that are worse than useless.


Those fees, at least, should be charged back to the filer of the original patent, who should have supplied the necessary references in their initial patent application. Which they don't want to do, of course.


Companies should be securing clawbacks in patent settlements upon invalidation.


Does it work like that? If you were bootlegging during prohibition, and convicted, would your conviction be repealed afterwards? It was technically illegal at the time.

Maybe someone with more knowledge of law on here knows if this is the case with patent law or not.


rhizome appears to be talking about people negotiating settlement agreements where the payments are clawed back when a patent is later found invalid. This would take agreement on both sides before the settlement, and I doubt patent holders would go for it. Worth a try though.


Aha. That makes more sense. Thanks.


In your analogy, the activity was illegal until the law was changed. If a patent is declared invalid, then it shouldn't have been valid when it was used in prosecution, so it's logical for the defendant to ask for some kind of redress. Whether the law actually works like that, I don't know.


Seems to me like it would be hard to get the side who would lose in the clawback to agree to do that when they had the upper hand when the settlement was made.


I've been thinking lately that with the number of patents in existence, the likelihood that a newly submit patent application is truly novel without any invalidating prior art is probably very low.

The USPTO should start each review under the premis that the application will probably be denied unless the application includes sufficient justification for it being truly novel.

If the USPTO started denying the majority of applications you'd, 1) start seeing less applications, and 2) applications would be of a higher caliber.


USPTO denies over 90% of initial applications, and even with appeals factored in, less than 50% of applications end up getting approved (it was 48% in 2011).


The problem as I understand it from people who have worked in the industry, is that if you have the money, you can keep adjusting the application and resubmitting, and eventually the probability of getting the bogus patent approved approaches 1.


Some have argued that anyone applying for a patent should be required to have a prior-art search done and submit it to the patent examiner, just as a PhD candidate must do a literature survey as part of his (or her) dissertation work.


"I've been thinking lately that with the number of patents in existence, the likelihood that a newly submit patent application is truly novel without any invalidating prior art is probably very low."

A great scifi short story that examines this eventuality in the context of art & perpetual copyright : Melancholy Elephants, by Spider Robinson. http://www.baen.com/chapters/W200011/0671319744___1.htm


Except it's impossible to prove the absence of prior art, while proving the existence of it is pretty easy.


Yep. Finite set of prior art < Infinite set of everything else


Everything else is both finite and not clearly larger. Insofar as everything else might be infinite (e.g. Infinite multiverse) so might prior art.


Former examiner here. That's basically how it works. As an examiner you do your best to reject every application. There's no other way to go about it.



As a result of this decision, could the holders of these prior touch-screen patents now sue Apple for infringement?

By the way, the "Hillis" in the Hillis patent[1] (filed in 2005) is none other than W. Daniel (Danny) Hillis[2], the founder of Thinking Machines.

[1] Patent 7,724,242: http://www.google.com/patents/US7724242?dq=7724242

[2] https://en.wikipedia.org/wiki/W._Daniel_Hillis


I imagine there's plenty of prior art supporting invalidating the Hillis patent, if it came to that.

For example, 1997: http://tangible.media.mit.edu/project/metadesk/

1:30 in the video seems to show the behavior described.


Yes, when I tried out Hillis's touchtable around 2005 my reaction was like "Cool! I'm finally seeing this kind of thing in person."


I don't think "as a result of this decision". If their claims cover these things, they probably could have sued before this ruling just as easily.


I don't even like pinch to zoom. It is hard/impossible to do when using the phone one handed. It is also annoying in apps like google's new maps for iOS because it is hard to not also rotate the map, which is hardly ever the desired outcome.


When I saw pinch to zoom, my first thought was, Minority Report.

Can a 2002 movie be prior art for a user interface? Because in this case it really deserved to be.


I think so. There is a myth about a Donald Duck comic being used as prior art when denying a patent application. It could be true since the patent was indeed denied, but sadly the records of why has been lost.

http://www.iusmentis.com/patents/priorart/donaldduck/


A similar, gesture based interface was present in Johnny Mnemonic (1995). I can't recall if it included pinch to zoom, but the gesture based interface was there.


When I first saw pinch-to-zoom I thought it was really cool, but in the long run it is one of those things that works better in "delightful" demos than in the real world.

In the real world I much prefer double-tab and two-finger tap to zoom in and out. You don't get quite the same level of "accuracy" as you do with pinch, but precise zoom is largely useless on phone/tablets anyway.


I'm fine with pinch-to-zoom. When coupled with rotation it's a nightmare. Lock the axes, please.


Depends on context. Indeed with one axis locked and the other free pinch to zoom and rotate is great for, e.g. Adjusting 3d views in a game.


The strength of pinch-to-zoom as a UI interaction is that it is direct manipulation. It has less to do with accuracy. Two-finger tap is a "computer command" to do something. Pinch is you doing the thing you want to do.


That's a good heuristic but it doesn't trump the fact that it is physically much more difficult than double-tap or tapping zoom in/out buttons when holding a device and controlling it with the same hand which is what you want 95% of the time. Pinch zoom is definitely less usable overall.

For example, when driving nails, in theory it would be great if you could just push them into the wood but in real life a hammer turns out to be handier.

BTW, not sure about ios but in android you can turn the +/- zoom buttons back on in labs.


eh, sort of.

I mean, I understand the basis of this argument but pinch-to-zoom doesn't actually map to anything we do in the real world.


After finally using Google's new maps for IOS last night (to actually find a destination I was trying to get to, as opposed to just playing around with the app), I'm really liking the ability to control zoom with a double-tap-drag. Its especially nice being able to quickly zoom out then back in with just one gesture, so you can figure out where you are within the larger map.


Wow, is indeed very good. Thank you. Where do you find out about gestures like this? I can't help but wonder what other gestures are secretly lurking.


I'm with you on the one handed use, but I think pinch to zoom is awesome. It's very natural and its implementation feels "direct", not laggy. It seems simple now, but it's one of those "why is it that nobody actually did it right?" until Apple did it. Just shows you that the devil is in the details and the balance, not the grand concept of pinching to zoom.

I've owned lots of Palm-based PDAs and a Dell Axim with Windows Mobile, for my pre-iPhone touchscreen background. I was horrified at the prospect of owning a Palm Treo or anything with Windows Mobile at the time.


>>It is hard/impossible to do when using the phone one handed.

This is why there are other methods to zoom, such as double-tapping with a finger (i.e. thumb).


Pinch to zoom is awesome for web browsing, but you kind of have to hold your phone in a weird way for it to be optimal (cradling in three fingers to free up your thumb and index finger to pinch).


Thank god, it would've been a disaster for the industry if this had been upheld.


This looks like a significant event for other mobile OS providers like Google. Is it?


Most mobile browsers do it for a long time already. So it's a good thing for everybody.


Good riddance.


That's too bad. If it weren't for Apple bringing this to their mobile web browsers (and other phone manufacturers copying the feature), we'd still be tapping a magnifying glass icon that opens up a menu with controls to zoom in and out.


That's like saying you can't use drop-down menus on the web, because one site did it first. I'm not saying in other cases that it might not have taken longer for the others to figure it out (months, years?). I'm saying that they shouldn't be able to patent something as easy to implement as that for 17 years, or whatever the patent age is.

Maybe if the patent system made a bit more sense, we wouldn't be so much against all software patents. It reminds me of the argument that people shouldn't be yelling "SOPA" everytime a slightly dangerous law appears, because in the end the whole protest thing loses its effectiveness. In the same way Apple and others shouldn't file for a "patent" everytime they work for a few hours on something. But the system shouldn't allow these type of patents in the first place, otherwise there will be companies to take advantage of it.


> I'm saying that they shouldn't be able to patent something as easy to implement as that for 17 years, or whatever the patent age is.

If it was so "easy", why wasn't it invented a long time ago?


If it was so "easy", why wasn't it invented a long time ago?

It was (1983): http://www.billbuxton.com/multitouchOverview.html


It was invented long ago, one of the reasons that Apple lost the patent was that there was prior art.


IIRC, early touch screens were resistive, rather than capacitive, which didn't support multi-touch. without multitouch, no pinch. the interface has existed in movies for a long time and it just took bringing down the cost of capacitive touch screens. If Apple chooses, their size and market following allow them to bring tech to the consumer faster. That's why they got pinch to zoom first, not because of clever innovation.


Capacitive touchscreens were invented in the 1960s. Resistive touchscreens were invented twenty years later. http://en.wikipedia.org/wiki/Capacitive_touchscreen#History


It's a nice theory, but resistive supports multi-touch just fine. (Although I'm not sure that any shipping products back then actually supported it - but it's certainly possible to do it with resistive.)


But we're not talking about a patent on multi-touch, we're talking about pinch-to-zoom. I'm sure its very difficult to make a good multi-touch screen, especially one small, efficient, and precise enough to use on a smartphone. But once you have good a good multi-touch screen, it doesn't seem that hard to implement a pinch gesture. Every single demo of a multi-touch interface I've ever seen (even from before 2007) has had some sort of pinch-to-zoom gesture, it seems to be one of the first things everyone thinks of doing once you've got the capability in the hardware.


If it was so "easy", why wasn't it invented a long time ago?

Because it made no sense to even contemplate such a feature prior to the availability of capacitive multitouch sensors.

Once the hardware became available, the obvious gesture-based functionality was implemented quickly and independently by multiple engineers.


Yes, ease of implementation is the wrong way to evaluate patents.

However, I don't see the real benefit of apple (or others) having patents like this. If they could not patent it, I think they would have included it in their product anyway. It's a cool feature. They got a head start. That's the value of creating something new--a head start. Things move too fast for there to be any real benefit to the general good by granting monopolies for 17 years. People will still create things because you can make a lot of money with a head start, particularly if you're the type of person/company that can maintain that lead by continuing to build great products without resorting to monopoly tactics.

The dropdown menu is a good example where I don't see much difference between a dropdown menu and pinch to zoom.


This is a common fallacy when it comes to inventions.

I have a Ph.D. in an engineering field, so I'm not easily impressed. That said, the inventions which are truly revolutionary are the ones where as soon as someone describes it you think "man, that makes perfect sense".

Yes, it makes perfect sense because it's the correct solution. That doesn't make it obvious before someone came along and spelled it out, nor guarantee that someone else would have invented it earlier.

There are some types of inventions "whose time has come". These will get invented at around a particular time by virtue of the supporting technology existing. Take the brightness control of LEDs using PWM and color mixing of different LED colors to make color changing LED lighting. Philips actually has a patent on this, from 1999. It was an idea whose time had come, and others came up with it independently many times since and frankly probably quite a few times before. But it was inevitable. I think it was a bad patent because it was obvious even in 1999 that you could use PWM, common already, to vary power through a LED to control brightness. It was also obvious in 1999 that you could mix two different primary colors together to form a mixed color. Patents aren't supposed to be awarded by simply taking two already obvious things and adding them together (or at least so says my patent attorney, who is perhaps too ethical about what she'll let me put into an application). But besides all that, I would argue that any "idea whose time has come" is probably also inherently obvious to someone skilled in the art at the time of interest.

On the other hand, there are some ideas which are not limited by any technology; they are limited by the creativity of humans. Take for instance the liquid metal battery that my employer works on. You float a molten anode metal on a slightly denser molten salt electrolyte on a slightly denser molten cathode metal, and bam, super high energy density, super high power density, low cost, long life-time battery. This is, in my opinion, an actual invention. There was nothing stopping someone from coming up with it earlier... but no one did. Why? Because it was non-obvious. It's still simple, conceptually at least.

As far as pinching to zoom? Honestly, I think it's somewhere between these things. Just because it's intuitive doesn't mean it's obvious. It's clearly more of a jump from a zoom button to a multitouch gesture than the jump from "LEDs can have variable brightness and different colors" to "LEDs can be mixed to make color changing lights". But it's also probably an idea whose time had come, by virtue of multitouch starting to exist. But I doubt any of that had anything to do with why it was invalidated; my guess would be that it was invalidated because of sufficient prior art to render it an obvious extension of existing technology.


You don't need to guess; if you read the patent that invalidates most of Apple's claims, you'll see a picture of a man doing a very similar movement of pinch to zoom ('though with a finger from each hand, since the screen depicted is much bigger).

http://www.google.com/patents?id=W0PRAAAAEBAJ&pg=PA5&...


> truly revolutionary are the ones where as soon as someone describes it you think "man, that makes perfect sense".

the purpose of the patent is to prevent secrets from being lost due to the fear of competitors stealing it. Say you have a formula, or a special method of manufacturing a widget. You tell no one, and so stay in business because the widget is useful.

However, in the long run, such behavour is bad for society as a whole. Patents encourage these "secrets" to be revealed, for the price of an enforced monopoly.

If, however, a "secret" method that's being employed is readily and easily discerned by a skilled practistioner in the field, then it deserves no patents. Pinch to zoom is one such "invention" - the mere fact of describing it to somebody means they can implement it.

Amazon's one click buy is also another example.

In other words, if the workings of the invention is easily discernable in such a way that a skilled practictioner could replicate it without knowing what would've been written in the patent, then it deserves no patents.


The argument you portray is sufficiently complicated that's it's hard to even begin... not that arguing is really the purpose. Yes, that is the purpose of a patent philosophically, for sure. It's hard to apply a philosophical test to a legal case though =)


You obviously misunderstand patents, as they have absolutely nothing to do with how easy something is to implement. They're awarded to companies that take risks, research, and invent something new.

It's a fundamental mistake to write off a "simple" invention as easy to come up with, obvious, a no-brainer, etc. Simplicity is difficult.


You're the one misunderstanding. A big company don't take any risk to file a patent, it's a few thousand of dollars and a few lawyer hours, and that's chump change for them. And that's a great sum for the small guy.

That's why you see companies like IBM, Samsung, Microsft and Apple patenting the hell out of everything[1]. It's actually a great defense move (so, yeah, it's the inverse of risk) and sometimes take no research (just lawyers and money).

There are some patents that USPTO keeps rejecting from Apple, and Apple just changes the wording and try again[2] (no small guy can afford that) until they finally get the patent. Such a wonderfully new researched and risky idea shouldn't take more than one try on the USPTO, don't you think?

Sources:

[1] A Patent Warrior’s Education: http://www.nytimes.com/2012/10/08/technology/patent-wars-amo...

[2] The Patent Bureaucracy: http://www.nytimes.com/2012/10/08/technology/patent-wars-amo...


Obviously I'm not referring to the process of handing in a patent application when I talk about risk. I'm referring to the process of inventing the invention that's patented, which presumably takes a lot of time and money in R&D.


Patents are not rewards for invention. They are compensation for willingly disclosing what would otherwise remain trade secrets. That's why the application has to describe the invention in enough detail for others to implement it (not merely recognize it) and why it must have been kept secret until the examiner's decision.


The fact that simple ideas can be truly novel inventions, worthy of protection, is the main problem with our patent system at this point. Not everything that is simple is an invention - and that means the only way you can tell if something is worthy of protection is to have some deep domain knowledge. The one thing our patent examiners do not have.


And if Apple had their way (and their patent) we would still be tapping that magnifying glass because nobody else could feature pinch-to-zoom.

And I'm not convinced Apple would license that IP to Samsung.


The first part of your comment depends entirely on the unfounded accusation you made in the second part of your comment. ("I'm not convinced Apple would license that IP to Samsung.")

Apple has licensed patents to competitors in the past, there's no reason to believe they wouldn't in this case.


Older Android browsers (<= 2.2) had a two-part button, for zooming in and out. One tap, no menus involved. I much prefer this since I can hold the phone and zoom with one hand, using my thumb.

Google Maps for Android has something nearly identical with the +/- buttons. I've yet to find another browser that implements this behavior (Android 2.3 removed it for whatever reason).

Pinch-to-zoom has always felt gimmicky in comparison. Having to use two hands is annoying.


Gimmicky might be a stretch, but I genuinely can't think of the last time I used pinch to zoom. When browsing a double-tap zooms to the width of the element you're tapping, which is perfect.


Google Maps for iOS lets you double tap and drag up/down to zoom. It's a pretty nice implementation, just harder to discover.


Google Maps does that on Android too.


I actually never mentioned Android in my comment, I was merely stating that zooming functionality generally worked like that prior to iPhone. For example, on Blackberry, Pocket PC, etc.


And them having a patent on this feature comes into play there..... how?


No one's saying they can't implement pinch to zoom.


Good start, let's invalidate the millions of other software patents from Samsung, LG, Google, Facebook, ...


About time!


GG


R&D costs money, and lots of it.

So in the end, patents provided the incentive to innovate and $spend on R&D in America, and now free for all to copy. Without patents, smart investors will start to look at where they can most cheaply copy American innovations.


Since your account is new, looks like banging on a keyboard, you provide nothing to support your arguments, and this has been debunked (specifically in the fields of interest here at HN) so many times now, I assume this is just a lame troll.


which element do you want me to support?: 1) R&D costs money 2) investors look for return on their investment 3) corporations continuously look to reduce costs

Perhaps it is you who is continuing the echo chamber.


You could start by backing up the statements patents provided the incentive to innovate and $spend on R&D in America, and and now free for all to copy and especially Without patents, smart investors will start to look at where they can most cheaply copy American innovations.

It would be especally impressive if you could show that all these putative benefits were, in fact, a net gain over all the very tangible downsides of this idea monopoly casino that is our patent system.


economies of countries with patent rights exceed economies without patents.

And at the top is the U.S.A. with strongest patent rights.


Well if you look at regular GDP http://en.wikipedia.org/wiki/List_of_countries_by_GDP_%28nom... , China is right there at #2. They are hardly known for their strong patent enforcement. To the contrary, they're known for "lax IP" and as a place where anyone can start a factory and start making almost anything for export. They're said to be growing faster than the US too, probably in no small part because it's easier to make things there.

If you look at per-captia GDP http://en.wikipedia.org/wiki/List_of_countries_by_GDP_%28PPP... instead, the US is way down at #8, behind Luxembourg, Qatar, Macau, Norway, Singapore, Kuwait, Brunei, Hong Kong, and Switzerland. How many of those countries are known for having "strong patent rights" and $B lawsuits and sales injuctions by patent holders against vendors?

Hmm, looks instead like most of those are countries known for their ability to produce things of value and export them to other countries such as the US.


Forget about all of that, you're just feeding the troll. The troll's premise is that correlation is causation, i.e. that large economies generally have patent systems and therefore that patent systems cause or are necessary to maintain large economies.

This logic leads to the conclusion that an ostentatious capitol building is necessary for economic prosperity, because most major economies have an ostentatious capital building. It's pure rubbish.

Try asking it to prove that the economic prosperity is caused by the patent system rather than merely correlated.


I see, "troll" because I don't conform to your opinion. What is this, slashdot?

> Try asking it to prove that the economic prosperity is caused by the patent system rather than merely correlated.

About as provable as the opposite.


>I see, "troll" because I don't conform to your opinion.

No, "troll" because you're trolling. Make an argument that isn't a textbook logical fallacy.

>About as provable as the opposite.

Are you arguing semantics? Absolute proof of anything is impossible? The thing to be proven is insufficiently specified, e.g. whether limited to software patents or to historically vs. in today's economy? That sort of thing? That's extremely pedantic, but I suppose it's technically correct. (The best kind of correct, naturally.)

So let's say not proof, just good reasoning supporting the position. Here, I'll start.

In the software industry where every individual with a PC and a compiler is a market participant, there are thousands of times more players than there are in most other patent-intensive industries, which vastly increases the cost of the patent system because the cost of clearing and licensing each invention against each patent is O(n^2) in the number of inventions. This number is so large in a market with tens or hundreds of thousands of participants that actually doing the clearances and licensing becomes an impossibility in practice due solely to transaction costs, i.e. the cost of each and every inventor tracking down and negotiating with each and every other inventor holding a potentially relevant software patent.

Moreover, as a result of the practical impossibility of actually doing that many clearances, it creates an environment in which everyone is potentially infringing everything. In such an environment, the patent system is inherently not providing the expected incentive to inventors, because there are too many infringers infringing too many patents to even so much as evaluate all of the possible infringement, much less negotiate licenses or litigate it, resulting in no license fees (or monopoly rents through the ability to exclude) from the large majority of infringers.

In addition to that, because patents are legally required to be licensed but software cannot rigorously and thoroughly be determined to be non-infringing in any cost-effective manner, an enormous amount of uncertainty about what patents a product may infringe overhangs the prospective market participants, which reduces the amount of funding available for new R&D because prospective investors will only provide funding if the expected returns exceed the risk created by software patents. Worse, because of the enormous amount of de jure infringement which is de facto business as usual, patent trolls with submarine patents can do an enormous amount of damage to anyone who experiences market success, and there is nothing the victim can do to prevent it because of the aforementioned practical impossibility of doing all the necessary patent clearances. This is worse than a normal risk because it occurs exactly to those investments which would otherwise have succeeded, providing an even more powerful disincentive to invest in new product development. The associated litigation creates a further deadweight loss on the economy because not only are those resources not being allocated to research, they're actively being misallocated to wasteful litigation and transaction costs.

On top of all of that, the reverse can occur and results in a potentially even larger harm: Rather than a successful company being sued by a non-practicing troll, the successful company can sue anyone who actually makes a product, because they hold enough patents that any nontrivial software infringes some of them. Between large companies this power cancels out, but when the relationship is asymmetric it becomes a club for incumbents to use against newcomers. Anyone who enters an established market segment is subject to suit by incumbents, which reduces the incentive for non-incumbents to innovate, because the cost of the inevitable litigation has to be factored in. Where this effect is sufficiently strong, it can destroy innovation entirely in specific submarkets, because no newcomers enter for fear of incumbents with patents and no incumbents innovate for lack of competition from newcomers.

So there you go. Let's hear your rebuttal.


> What is this, slashdot?

Ouch! Now that's hitting below the belt.


China's relative recent rise is predicated on copying - not innovating. As patent rights are weakened, investors are increasingly reluctant to invest in $costly American R&D that can just be copied at a fraction of the R&D $cost.

Pick your poison: compete with China on lowest cost vs. high end jobs innovating. Except the later affords a more affluent lifestyle while the former require suicide nets in their buildings: http://i.imgur.com/JwBDR.jpg


Right, so when China opens a textiles sweatshop using prison labor, a semiconductor factory, or Apple contracts with Foxconn to manufacture iPhones, it's because the China is copying American R&D.

> Pick your poison

Ah yes, I was wondering when you were going to get around to the false dichotomy.

> suicide nets

Wow you really are a desperate troll. Unfortunately for you, the suicide rate in the US and Japan is far higher than at Foxconn. Last I ran the numbers, Foxconn employees had the suicide rate of a Carribean island.

I guess that is something China is copying from the US and Japan: http://www.google.com/search?q=suicide+barrier


"Last I ran the numbers, Foxconn employees had the suicide rate of a Carribean island.". Sorry, you're making a common comparison fallacy that I used to make as well. The Foxconn employee suicide rate is for employees committing suicide specifically at the factory itself. To make an equivalent comparison, you can't compare against a whole Caribbean island, you'd have to compare with a specific sugar plantation. The fact that these employees specifically chose to end their lives at their employer's offices/factories is something to consider.


I'm certainly open to the idea that the rate is being systematically underreported, but the article I read suggested that most of these employees lived in dormitory-style housing on the factory premises.

For example: http://www.reuters.com/article/2012/03/29/us-apple-foxconn-i... NEW DORMS ... Foxconn committed to building new housing to alleviate situations where multiple workers were squeezed into dorm rooms that seem inhumane by Western standards.

And http://news.cnet.com/8301-13579_3-57527579-37/foxconn-confir... Foxconn, which has 1.2 million employees in China, has come under scrutiny in the past few years amid reports of employees committing suicide at company facilities. The company has also been accused of employing underage laborers, providing poor living conditions at its dormitory housing, and overworking employees.

http://en.wikipedia.org/wiki/Foxconn_suicides The suicide rate at Foxconn during the suicide spate remained lower than that of the general Chinese population[8] as well as all 50 states in the United States.[9]


Correct, so using your statement that "most of these employees lived on factory premises", the equivalent comparisons could be how many college students commit suicide in their dorm rooms, or how many google employees commit suicide on campus. Those would be valid comparisons whereas comparing with a country, a region would be a misleading comparison.


The China example is some terrible reasoning and also doesn't really play into your narrative. China is growing faster because 1) it's sacrificing lots of things Americans are too rich to be willing to sacrifice for the sake of growth; 2) it's in a much earlier phase of development and thus capturing low hanging fruit. Re: innovation, the Chinese aren't known for strong patent enforcement, but they're also not known for innovation either. They have lax IP enforcement because their technology sector depends on copying technology from the US. Indeed, China has been stepping up IP enforcement as of late, which has been correlated with an increased willingness of American companies to invest in China. As China develops, it has been hiring American legal experts to help them develop a sophisticated, American-style legal system, because that helps attract foreign investment. The facts don't fit your narrative and indeed suggest the opposite one.


> The China example is some terrible reasoning and also doesn't really play into your narrative.

Admittedly, I did not set out to make a coherent narrative. I set out to probe this troll to see if, by some wild chance, he really had any points of merit. He pulled the 'echo chamber' line and I felt obligated to reconsider my assumptions. He put forward a halfway-falsifiable hypothesis and I looked up the relevant facts on Wikipedia.

> China is growing faster because 1) it's sacrificing lots of things Americans are too rich to be willing to sacrifice for the sake of growth; 2) it's in a much earlier phase of development and thus capturing low hanging fruit.

Sure. But you don't dispute that "China is hardly known for their strong patent enforcement", right?

> Re: innovation, the Chinese aren't known for strong patent enforcement, but they're also not known for innovation either. They have lax IP enforcement because their technology sector depends on copying technology from the US.

I've heard that all before. 30+ years ago, about Japan.

> Indeed, China has been stepping up IP enforcement as of late,

of late

> which has been correlated with an increased willingness of American companies to invest in China.

Sources, please.

> As China develops, it has been hiring American legal experts to help them develop a sophisticated, American-style legal system,

Suckers! No, I seriously doubt the Chinese are going to go that route in the long term. They believe in cash, exporting, are extremely skeptical of this Western "intellectual property" BS, and show no desire to trust their business to any NIH legal system.

Sorry, the way a formerly-great company like Sony could fall in with the lawyer crowd and go from making the coolest highest-value products you could buy to being an IP-focused company suing their file-sharing customers, suing enthusiasts like Geohot, and getting pwned by Anonymous made me feel a little sorry for them.

> because that helps attract foreign investment. The facts don't fit your narrative

Again, my sole purpose here was to examine the "at the top is the U.S.A. with strongest patent rights" claim of causation.

> and indeed suggest the opposite one.

I don't see anything you've said which supports that.


China's idea of stepping up IP enforcement is case-by-case. Read: however it benefits the Chinese company vs the foreigner.

Also useful to note their increase is mainly quantity. Superficial.


I kind of agreed with your first post; patents mean that the inventor will share with the world how to make the invention. (although, i am generally anti-patent for several reasons; much too great scope and time-length especially for the technical world).

But you really lost me here with your rookie 'causation Vs correlation' point. Alternative thesis; powerful corporations (which occur in rich nations) have more government sway to enable protectionism.


You also might ask: How did the US get to the top in the first place? It was not exactly known for respecting English and German patents in the 19th century...


WWII baby. The US blackmailed the UK out of its patents (in return for assistance) and the US basically took all of Germany's IP as payment. I'll get modded to hell for that - but it had to be said.


I don't think you have to invoke any legal trickery or belief in the power of "Intellectual Property": in 1945 the US was, more or less, the only large industrialized capitalist nation that hadn't been bombed to bits.

UK, Germany, and Japan were still stacking their buildings' bricks back on top of each other while the US was figuring out what to do with its absurd postwar excess manufacturing capacity.


sure, and now China is repeating history.


Out.


How much money did it cost to come up with "pinch-to-zoom"? I bet I could pay a gaggle of 5th graders 10$ to come up with it (and several other ideas) in an hour.


Then why don't you? Often these simple and "obvious" sorts of ideas aren't very obvious at all. But prove me wrong, and get rich/contribute to the world in the process.


Sorry that you are getting down voted and being called a troll for suggesting that patent and IP laws serve a purpose. I guess the down voters would be comfortable investing a billion dollar in R&D for a drug that Walgreens can copy in a week.


I think this is actually a bad thing because at a certain point it discourages innovation and the creation of new things because competitors will just copy whatever you create. I'm not for patent trolls making money for simply owning someone else's invention, but I feel like if you invent something, patent your invention, and build a real product around that invention, then the patent should be upheld.

Otherwise, you might as well cut most R&D spending and focus on reverse engineering. Getting really good at following fast is probably a lot cheaper than getting really good at inventing new things that turn into products.

Also, then you could spend a smaller fraction of money to "acquire" (through various means) the schematics and trade secrets and produce your own version of the next big thing. Sure, that is probably unethical, but without any semblance of protection via patents, trademarks, other IP law, it seems like that is what you would get.

That being said, as it gets cheaper to distribute information and turn that information into physical goods, the amount of value in the production of physical goods is going to approach the cost to manufacture those goods. There will always be some money in service, repair, etc. but a lot of things value will be destroyed along the way and it is not yet clear if that is a net positive for society at large.


> I think this is actually a bad thing because at a certain point it discourages innovation and the creation of new things because competitors will just copy whatever you create.

That's an absolutely ludicrous conclusion in this case, irrespective of the suitability of software patents. The patent office has said these specific patent claims are unpatentable due to prior art. That means that they're saying Apple didn't actually make anything new.

Further, in 2011 the US moved to first-to-file, so expect unpublished prior art to matter far less and give even more security to those who file patents.


That being said, as it gets cheaper to distribute information and turn that information into physical goods, the amount of value in the production of physical goods is going to approach the cost to manufacture those goods. There will always be some money in service, repair, etc. but a lot of things value will be destroyed along the way and it is not yet clear if that is a net positive for society at large.

---

Let's assume that because of patent protection not being available, smartphones are widely copied and become really cheap and all the 5 billion adults in the world have access to them. Clearly the smartphone makers themselves would make less profit. Now what? Would it make society as a whole worse off? There would be a lot of ideas that will be born on top of the smartphone - in fact, we are already seeing many of them. And profit would shift to people who execute on those ideas.

There was a time not that long ago AT&T used to justify its monopoly and sky-high prices for long distance calls on the investment it was making in Bell Labs. The profits that used to be enjoyed by AT&T have become distributed (to Apple, Google, Qualcomm and so on) and the R&D has also become distributed. If you looked at Bell Labs in isolation, the end of AT&T monopoly was a big negative. But if you look at the ecosystem as a whole, there is no contest.


How much R&D went into pinch-to-zoom?

When they first launched a product with pinch-to-zoom, Apple did not know if they would be granted the patent. They launched it anyway because it made the phone better just like any other company would do, regardless if someone could copy it. The patent in question has nothing to do with innovation and everything to do with threatening competitors.


What the heck are you on about?

The challenge to this patent is prior art.


There are thousands of developers working right now on coming up with new ways of interacting with touch-screens and coming up with new gestures. The market is providing plenty of incentive for these innovations. The only thing that is discouraging innovation are these patents and lawsuits.




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