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August 10, 2011

Obvious Troll is... um... Uninformed

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Posted by Alan Wexelblat

Commenter Gareth Simpson pointed me to Mark Cuban's next blog entry on the topic of patents. To say that it's cringe-worthy is a polite understatement. I suppose people worth two billion dollars are equally as entitled as you and I to spew uninformed commentary over the Internet, but geebus.

Cuban's prescriptions for patent reform include abolishing software patents. This is a topic that has been debated at least since the first software patent was granted. I am myself a software patent holder, but I have mixed feelings on the topic. Patents are presently the best form of intellectual property protection available. Contrary to Cuban's one-sentence dismissal the protection offered by copyright is quite weak. I still believe we need a new form of IP protection for software; however, I have to agree that the advances in information science fundamentally challenge the notion that software (information) is different from hardware. Generally, patenting hardware is uncontroversial but then people opposed to software patents must also answer the question of why a program expressed as a custom chip is afforded a different protection than a program expressed as a block of C++ code.

Regardless of which side of the debate you find yourself on (or flip-flop across as I tend to do) Cuban's curt dismissal of the complexity of the issues comes across as ignorant.

Then again, he also wants to abolish "all process patents." I'm going to take a wild guess (since he doesn't bother to state) that what he means are business process patents. Unless he's also opposed to all biological, chemical, and mechanical transformative processes being patented, in which case I find myself wondering what the hell he thinks could be patented. So let's credit him a little bit.

Abolishing business process patents is a less-well-studied suggestion, but not terribly original. The problem I see is that a business process isn't necessarily that different from a software process - certainly every maker of workflow software would like you to think they can encode your business processes in their software (see for example the open-source ProcessMaker if you aren't familiar with this stuff). If we think business processes can be encoded in software then they can also be encoded in machines and now we're back in the weird world of saying "well, yes, you can patent a machine that carries out steps A B and C but if you have human beings doing it then you can't patent it."

Again, I think reasonable people can debate this issue and come out on either side, but you can't just hand-wave them away.

I would love to do a similar dissection of Cuban's opinions of the "benefits" of eliminating these forms of patenting, but I have more interesting things to spend my time on, like Dungeon Crawl Stone Soup.

Comments (6) + TrackBacks (0) | Category: Interesting People


1. staff on August 10, 2011 6:55 PM writes...

“Patent troll”

Call it what you will...patent hoarder, patent troll, non-practicing entity, etc. It all means one thing: “we’re using your invention and we’re not going to pay”. This is just dissembling by large infringers to kill any inventor support system. It is purely about legalizing theft.

Prior to eBay v Mercexchange, small entities had a viable chance at commercializing their inventions. If the defendant was found guilty, an injunction was most always issued. Then the inventor small entity could enjoy the exclusive use of his invention in commercializing it. Unfortunately, injunctions are often no longer available to small entity inventors because of the Supreme Court decision so we have no fair chance to compete with much larger entities who are now free to use our inventions. Essentially, large infringers now have your gun and all the bullets. Worse yet, inability to commercialize means those same small entities will not be hiring new employees to roll out their products and services. And now some of those same parties who killed injunctions for small entities and thus blocked their chance at commercializing now complain that small entity inventors are not commercializing. They created the problem and now they want to blame small entities for it. What dissembling! If you don’t like this state of affairs (your unemployment is running out), tell your Congress member. Then maybe we can get some sense back in the patent system with injunctions fully enforceable on all infringers by all inventors, large and small.

For the truth about trolls, please see

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2. staff on August 10, 2011 6:58 PM writes...

The Constitution says “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”. Therefore, if an invention is useful and promotes science, it should be patentable. It’s that simple.

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3. mark cuban on August 10, 2011 7:30 PM writes...

i may be ignorant, but...

Here is the reality. The USPTO is NEVER going to be staffed and/or educated enough to be able to determine a business process or software patents legitimacy.

The Constitution says "To Promote the Progress of Science and Useful Arts". With just a few exceptions in medical/biotech fields for process and a few other anecdotal ares, today's patents do no such thing. In fact they do the opposite.

The 70s , 80s and 90s and even early 2000's saw an explosion in technology and considerable benefit to the economy and quality of life in this country. All without much in the way of patent litigation. We had nice little battles like Intel vs AMD to amuse us, but many a small company grew into big companies.

If MicroSoft tried to start up today, Digital REsearch would sue them into oblivion. If Dell tried to start up today..Michael Dell would be servicing computers instead of selling them. Does anyone thing Mosaic could have gotten off the ground build around hyperlinking across the Web ? The list goes on.

The problem with business method and software patents is that for every one person they MIGHT protect, 100 take advantage of the system and those 100 sue 1k companies, large and small and negatively impact the Progress of Science and negatively impact the economy.

There are plenty of ways through theft of trade secrets and other means with which to protect a business process you are using within your company or software you have published.

Is it perfect, no. But if you put together a balance sheet of the assets and liabilities, the liabilities of patent litigation abuse , imho , far outweighs the few who truly need the protection.

And to those who say "fix the USPTO ", no one in their right mind believes that has any chance of happening. I dont think its realistically possible, regardless of funding.

If you trolls may want to protect your little piece of land that you think you ingeniously invented... go out and put it to use.

ideas are easy. Executing on them is hard.

I have no sympathy at all. And this is from someone who wrote software for years and could have patented software, process and more. Instead I put it to work in my first 2 companies, and then I put it to work again at, and then I put it to work again at HDNet and others.

For 99pct of you, you cry about patents because you were un-able to do anything with them.

For the 1 pct who truly needed patent protection I sympathize, but THe Progress of Science" isnt going to be halted because you didnt get a patent.


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4. staff on August 11, 2011 9:26 AM writes...

"Here is the reality. The USPTO is NEVER going to be staffed and/or educated enough to be able to determine a business process or software patents legitimacy."

We have over 200 years of patent law in the US, far greater than any other country. It has made America the most wealthy and technically advanced nation in history. Patent attorneys and those who have been through patent exmaination know no such difficulty exists as you suggest. After a few rounds of prosecution between the Office and the applicant one begins to clearly understand what is patentable and what is not. It is not as unclear as you clearly wish it was.

If you ever invented anything, if you ever tried to bring that invention to market against many much larger and better capitalized firms, you would understand (actually it is likely you do as you are not stupid, you're just hoping everyone else is). The fact is you have no patents and have never invented anything. All you know about patents is you don't have any and are now having to compete with parties who do.

Stop whining, be a man, and pay a fair value to those whose inventions you are using (stealing), or stop using them. It's about property rights. If you want others to respect your property rights, you must respect theirs. Play fair.

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5. DrWex on August 11, 2011 2:48 PM writes...

@mark: thanks for the response - sorry if the site wasn't accepting the comment text in a friendly way. Now as to substance:

I don't think the USPTO is any less qualified to judge patent obviousness or utility (legitimacy) if that patent applies to a business process or software program than to an arcane biochemical reaction or highly specialized medical microsurgical device. Either the examiner is sufficiently versed in the art or not; is adequately trained and given good enough search resources, or not; and either the patent itself contains proper prior art references or not.

If software companies are (as Aharonian claims) deliberately clogging the software patent section with lots of badly drawn and poorly sourced patents that is not the USPTO's fault. If the USPTO is under-resourced then by all means campaign to stop Congress from diverting patent fees and use the fees to fix the USPTO instead. The USPTO, like the FDIC, should be entirely self-financing.

Without denying that patents, and patent litigation, are an increasing consumption of resources, I will point out that the number of companies started and taken public rises and falls with the general economy, not with the patent system. The entire tech bubble of the past decade occurred under a patent system that is essentially the same as we have now. Prima facie there is no evidence that patent policies are reducing either the number of jobs in the software industry nor the number of companies being started or taken public.

If all we are counting is the number of jobs then a patent doesn't create jobs it simply shifts them around. A company may create jobs using a patent-protected process or another company may create those jobs in a world without the patent or by violating the patent's exclusive monopoly. Either way it's the same number of jobs.

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6. DrWex on August 11, 2011 2:52 PM writes...

@staff: I'm not sure who "you" is in your comment.

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