The case against patents !

[Bob]

Hallo Arnoud,

 

Op een Yahoo forum word ik regelmatig geconfronteerd met negatieve meningen over het aanvragen en houden van patenten, door kleine zelfstandigen en particulieren.

 

Als bijlage heb ik een essay ( The case against patents) van de Amerikaanse schrijver Don Lancaster, bijgevoegd. Zou jij hier op willen reageren? (Bijvoorkeur in het Engels svp) Mag ik je reactie op het Yahoo forum plaatsen?

 

Mvg, Bob Bakker ;)

[Bob]

The Case Against Patents (deel 1)

 

BY DON LANCASTER

 

 

LET'S START OFF with a seemingly simple quiz - which of the following

is the most likely to cause you no end of grief?

 

(A) Dealing noontime crack on the front stairs of the

Salt Lake City police station.

 

(B) Shooting a sequence of kiddy-porn videos in the

basement of your favorite church.

 

© Calling yourself an inventor and behaving like one.

 

A trick question, of course. Given the normal franchise

prepayments and when handled as a class act, (A) and (B) will

both have considerable upside potential and a rather well-

defined risk-to-reward ratio. © is certain to be an absolute and

total loss.

 

Over the years, 'they' have defined inventor as a mark to be

conned. As a sheep to get shorn, gangraped, flayed alive, and

finally nailed to the nearest shed.

 

It is fine to be an industrial product developer, run a prototyping

house, or be a concept consultant or an evaluation specialist. All of

these are acceptable roles in society for which, at least

occasionally, you may end up being quite well rewarded. These are also

the sorts of things that you, as a midnight engineer, should be

striving toward. Upward and onward.

 

But don't ever refer to yourself as an inventor or act like one,

for you are certain to end up done in very badly. Don't ever let

anyone even suspect that you are capable of inventing anything.

Those invention-marketing services with the tiny classified

ads are not really the main problem. These folks are basically

selling dreams and wish fulfillment in much the same way as a

vanity publisher or, for that matter, an X-rated movie rental.

Since the use of any invention-marketing firm is the guaranteed

kiss of death for any new product, these also do serve a useful

purpose in helping keep abysmal junk out of the marketplace.

 

The patent process itself is by far the worst offender in

inventor-bashing. If a Las Vegas casino operator had the gross

effrontery to offer the same odds the patent office does, he

would be tarred, feathered, and run out of town on a rail. If it

were not a government bureaucracy, the patent office would

long ago have been shut down under the RICO act.

 

Now, the patent system may or may not still retain some

marginal utility in a Fortune 500 context. But, as a small-scale

midnight engineer or hardware hacker, any involvement with

the patent system in any way, shape, or form is virtually guar-

anteed to cause you a monumental long-term loss of time,

money, and sanity.

 

I'd guess the main problem is the mythology that has built up

around the patent process over all the years - a mythology that

no longer applies to the midnight engineer or the small-scale

startup. Let's try and replace the myths with some cold hard

facts.

 

Fact - your patent does not in any manner prevent others

from stealing or using your ideas.

 

Should you patent something, anyone is totally free to

market your product, rip off all your ideas, or tell others about

your work. And there is nothing immediate you can do to stop

this from happening.

 

All a patent does is give you the right to sue someone in a civil

action. At some future date in a ridiculously costly, extremely

drawn-out and easily circumvented legal process.

 

Nobody has ever "won" any patent litigation. The sole

purpose of patent fights is to cause more grief and harm to the

opposition than you are causing yourself. Almost always, this

fails miserably.

 

Fact - not one patent in one hundred ever shows any

positive cash flow.

 

There have been lots of studies done on patent productivity.

While most of these cite ratios of several hundred to one or

higher, 100:1 is a good and very generous working figure. Thus,

your state lottery is usually a vastly better investment than a

patent.

 

Fact - there is not one patent in one thousand that cannot

be invalidated or severely minimized by a sufficiently diligent

search for prior art done in sufficiently obscure places.

 

Very simply, zillions of people worldwide are inventing

things. And they all have pretty much the same tools and

technology at their disposal. Almost certainly, you are not first

with your idea. All it takes is some provable prior art anywhere,

and your patent is patently useless.

 

Fact - prior art is not needed to bust any patent

 

All you really have to do is show that the claims would have

been reasonably obvious to a "practitioner in the field." That's

all it takes.

 

As is often the case, a patent search is made without actually

looking at any of the non-patent history of the field in the way of

key papers, seminars and trade journals. All you have to do is

find someone somewhere that says it sure would have been

obvious to them.

 

When (not if) your patent ends up busted, you will also run

the risk of a frivolous-litigation lawsuit. Thus, if you have the

temerity to try to defend your patent, you could end up being

fined thousands of dollars.

 

(zie volgende bericht voor deel 2)

[Bob]

The Case Against Patents (deel 2)

 

 

Fact - ideas are usually worthless.

 

At one time, way back in the golden age of inventing, ideas

were worth as much as a dime a dozen. These days, they are

worth less than a dime a bale in ten-bale lots.

 

An idea becomes useful only when and if it can get converted

into some marketable product that in fact ends up solving end-

user needs.

 

If you cannot demonstrate end users getting off on your idea,

it has no value. It ain't creative unless it sells.

 

Fact - big industry does not buy ideas or patents.

 

Change of any kind is anathema to any large Fortune 500

corporation. The only reason a new or improved product is ever

released is in response to a clear threat of losing market share.

Even then (as was obviously the case with minicomputer manu-

facturers), a larger corporation may choose to drop the ball

completely rather than adapting to any sorely needed change.

 

Consistently, it is all those garage startups and other smaller

companies that introduce innovation and change to the market-

place. Only when those changes are overwhelmingly superior

does big business pay attention.

 

Many larger corporations have a policy of flat-out rejecting

any outside invention submission. The reason for this is simple

- several millions of dollars of in-house ongoing research and

development could be lost should some outside epsilon-minus

and his attorney scream "You stole my idea!"

 

The NIH (Not Invented Here) syndrome is alive and well in

most larger firms. It looks bad when the R&D staff gets blown

out of the water by some kid in a garage somewhere.

 

So even if you have an absolutely outstanding new idea with

rock-solid patents behind it, most of industry simply could not

care less.

 

Fact - nobody voluntarily pays any patent royalties.

 

Nearly any company would much prefer to give its legal

department $100,000 to bust your patent before they would ever

stoop to paying you $10,000 in royalties. Outside patents are

something to be ignored, avoided, worked around, or outright

busted in court. But never to be honored.

 

Fact - you will get ripped off.

 

The odds are very much stacked against the midnight-

engineer startup from day one. If you are a creative type that

designs things, the chances are you got that way in the first place

through ignoring people and legal details. So, you will have

your ideas stolen. You will be lied to. You will be misled.

The trick here is to recognize the inevitability of this ripoff

process and not get too upset when it happens.

 

Ripoffs come with the territory. So factor them in ahead of

time and it won't be nearly as rude a surprise when it happens

to you.

 

So, what are the alternative methods for successfully market-

ing your ideas and concepts? Based on many years of personal

experience and several cubic yards of overflowing third-party

patent-victim files, here's what I'd suggest:

 

First, you totally avoid contact with anything even remotely

patent-related. In any way, shape or form. Do so religiously.

 

Second, don't bother creating anything in any field in which

you are not eventually certain to become an expert. An expert

who is thoroughly familiar with the technical literature, the

history of the field, the marketing realities, the insider trade

journals, and the mainstream tools and techniques in use. There

is no point whatsoever in writing forest-fire simulation software

if you have never sharpened a Pulaski. Nor (as sadly happened

to yet another victim just this morning) in patenting a 'new way

to replace inductors" without having read and understood

Sallen and Key in their classic 1955 paper.

 

Third, publish all your key secrets and ideas in a major

magazine, leaving out no detail and omitting no insider secrets.

This can immediately generate positive cash flow for you, and

It safely tucks all your ideas away in the public domain, prevent-

ing most others from attempting to patent them. This also

exposes your new ideas to the widest possible audience.

 

Fourth, try to set up some royalty arrangement with a small-

to medium-sized firm in a position to market and distribute

your invention. A normal royalty payment is typically in the 5-

percent range. Now for the tricky part: they must come to you;

never vice versa. That is why it is super-important to publish

your ideas and creations and expose them as widely as possible.

 

You have one and only one defense against getting ripped

off in any royalty setup - the expectation that you will be

delivering newer and better stuff in the future. That's all.

 

Fifth, employ the shotgun technique. There is no way that one

single idea or product will hack it. To survive in this game,

you'll need hundreds or even thousands of new ideas and

concepts working for you on a total-lifetime and total-lifestyle

basis. Chances are that one or two genuine winners will pay for

all the others lost or stolen.

 

Finally, be realistic. You don't create things to get filthy rich.

You create things because you like to create things and have

some compelling desire or need to do so. As long as there are

enough nickels to keep going, that is all that should really

matter.

 

 

From the Whole Earth Review, #77, Winter '92

 

Don Lancaster is known for his early work with microcom-

puters and more recent elucidations of Postscript. He's written

26 books and many articles (see WER #67, p. 68, for one). This

piece is reprinted from Lancaster's column, "The Blatant Op-

portunist," in the bimonthly Midnight Engineering ($19.951

year from 1700 Washington Avenue, Rocky Ford, CO 81067;

7191254-4558). Lancaster offers free technical advice and infor-

mation on his publications: 60214284073. -J. Baldwin

[Arnoud Engelfriet]

Hallo Arnoud,

 

Op een Yahoo forum word ik regelmatig geconfronteerd met negatieve meningen over het aanvragen en houden van patenten, door kleine zelfstandigen en particulieren.

 

Als bijlage heb ik een essay ( The case against patents) van de Amerikaanse schrijver Don Lancaster, bijgevoegd. Zou jij hier op willen reageren? (Bijvoorkeur in het Engels svp) Mag ik je reactie op het Yahoo forum plaatsen?

 

Mvg, Bob Bakker ;)

Bob,

 

Een interessant artikel, maar niet echt iets om op in te gaan? Het leest nogal als een ietwat cynisch advies richting 'kleine' uitvinders. Inderdaad, 't is moeilijk om je uitvinding bij een groot bedrijf te slijten, want die zeggen toch altijd dat ze het zelf al hadden bedacht en bovendien geen interesse hebben (en dat is vaak ook zo, tenminste bij mijn werkgever). Dus ik weet even niet zo goed wat voor reactie je nu zoekt...

 

Groeten Arnoud