November 15, 2004  ·  Lessig

In 1991, according to The Patent Wars by Fred Warshofsky, Bill Gates said this about software patents:

If people had understood how patents would be granted when most of today�s ideas were invented and had taken out patents, the industry would be at a complete standstill today. The solution . . . is patent exchanges . . . and patenting as much as we can. . . . A future start-up with no patents of its own will be forced to pay whatever price the giants choose to impose. That price might be high: Established companies have an interest in excluding future competitors.

Thirteen years later, according to Brad Stone of Newsweek, Microsoft alum Nathan Myhrvold is putting this insight into action.

  • Steve Rhodes

    Nathan Myhrvold is on Charlie Rose Monday night.

    Audio will eventually be up in the achives section at

  • J. Toran

    Gimme a break.

    Mebbe somebody should let you and Brad Stone and Nathan Myhrvold in on what is apparently a “secret” that is so wide-out in the open that you folks are so into intellectually MASTER-baiting that “yer blind, ya bum” to quote an olde saw used in baseball against DEANG-BATS!

    (Thaz pronounced deeeng-batz, btw.)

    Wtf you think Server Group is, but a virtual corporation. I admit, I needed it explained to me by one Kimberly S. Stevenson (iirc, the spelling and such). But it was SO obvious, I only needed to be told one time.



    Get the “heck” outta the IT biz, Dr. Lessig, you have no clue.

    You only have a cluetrain, and you are a deangbat using it to HURT THE ENTIRE COMPUTER INDUSTRY.


    (And btw, quit hurting culture the same way, just to get famous. “Free” culture my arse.)

  • three blind mice

    hey j toran, maybe if you spent some time here you’d know that the “free culture” folks DO have some valid arguments.

    these issues are sufficiently complex that no side can claim to have all the answers.

    we three blind mice often find ourselves in disagreement with the good professor – and his echo chamber – but to ignore the valid points they occasionally make is to throw the baby out with the bathwater.

    that being said, what Intellectual Ventures is doing can’t be reasonably compared to what IBM have done. IBM patents the results of their R&D, IV’s behaviour is more akin to a fund manager buying options, or a propery manager buying rental properties.

    they are actually light years ahead of IBM in their approach.

    actually, the patent and license exchange ( pioneered the exchange concept. by treating patents as call options and using an options pricing model (like the now suspect black-scholes model) they hoped to create a “stock” exchange for patents.

    it was a fucking brilliant idea (if you will excuse our french,) but an idea way ahead of its time.

    IV’s approach is a bit more pedestrian, but more likely to be successful.

  • J. Toran

    “these issues are sufficiently complex that no side can claim to have all the answers.”

    Ya idjit… That was my point. The Bloggers, Inc. that claims to have all the answers, Doc and Doc W. and The Scobleizer and Gillmor and Gilmore and Lessig and Winer-boyz et al…

    They’d be making false claims. False advertising that FCC doesn’t moderate because false claim #1 is that they aren’t advertising their wares, they’re “sharing” is all.

    Btw, since you apparently think I claim to have all the answers, that’d be why you’re:

    0) An idjit putting up a strawman, words into my mouth that I’ve not said
    1) Fallen into the trap that because I didn’t suck up like the rest, I don’t already KNOW there are many arguments on and in the favor of both sides

    Duh… Thanks for clearing up MY corn-fusion… Sheesh, how’d I get by without all your all’s insight is parasamgate…

    Anyhoo, the Server Group is and has been the most sophisticated “virtual corporation” in existence, afaik. Been around since late 1900′s and 2000 at the very latest… You recognize that, you all? You ever GONNA recognize that most of what you folks claim is a great “gnu” invention is mostly re-treads of what you’ve failed to see. (Not unlike that which I am failing to see, which is how to get a point across, without being cross…;-)

    Also, you should study the IBM patent machine and it’s hookups to Science and Industry and the good and the bad that results. And factor in PwC purchase of a year or two ago…

    Then lez talk, k…

  • Michael Bernstein

    Professor Lessig, Myhrvold’s venture doesn’t seem any different from Walker Digital.

  • J. Toran

    “Ya idjit… That was my point. The Bloggers, Inc. that claims to have all the answers, Doc and Doc W. and The Scobleizer and Gillmor and Gilmore and Lessig and Winer-boyz et al…”

    ‘Scuse my non-PC behavior(s), if ya can. Forgot to mention the few token females that provide moral support, and didn’t mean to demean ANYbody who I neglected to mention above. That being anybody that stamps “blogger” on their forehead, and expects to be taken seriously.

    Which includes journalists who take bloggers seriously, by implication.

    You ALL are part of Bloggers, Inc. and us commenters play a part in legitimizing this fawning-over-self as something remotely akin to “intelligent discourse”. Granted, there’s grains of intelligent discourse in the hourglass of time.. vast quantities of time when multiplied by the 10′s of millions of people wasting it.

    It’s infotainment for the rich and famous and the destitute trying-to-get famous, and tenured professors and students and such.. mainly.. not to demean the millions of teens learning how to read and write.

    Expensive form of RIF program (Reading Is Fun), when you factor in the trillions of dollars mismanaged and the quadrillions of person-hours equally mismanaged.

    And where I get peeved is that Democracy is getting raped by those who said, “Hussein can’t be toppled”, “Dean can’t be beat”, “only an insane person WOULD vote for Bush” and “THERE IS A FREE LUNCH, IF ONLY ENOUGH PEOPLE GIVE IT AWAY” while they rush out to Starbucks on the way to cashing their paychecks.

    Fool me once, twice, three times and hundred-three times…?

    Still works.

    “You ever GONNA recognize that most of what you folks claim is a great ‘gnu’ invention is mostly re-treads of what you’ve failed to see.”

    And the reason you failed to see is twofold:

    0) Your own stupidity, you failed to look any places that didn’t confirm your “brilliance”
    1) The Tech PRess did (and continues to do) it’s job like The PRess did (and appears like it’s attempting to change how it’s doing) it’s job.

    For whatever reasons, dudn’t matter. Pretending you all, the elite, generally come up with the optimal answers??

    Matters to a few.

    You call them Kapitalists and red-staters, you all. Those who HAFTA work for a living because we aren’t smart enough to live off the “land”…

  • Tayssir John Gabbour

    There’s an interesting argument that real high-tech advances came from public spending (socializing costs and risk), and giving it to corporations to make profit (privatizing gains). Examples are:

    • computers and electronics generally
    • telecommunications and the Internet
    • satellites
    • the aeronautical industry (hence tourism, the largest “service industry”)
    • containerization (hence contemporary trade)
    • computer-controlled machine tools

    (I’m verifying each of these. Transistors is an interesting case since it was developed by a monopoly: AT&T’s Bell Labs, which was a hotbed of innovation until it was no longer a monopoly, upon which time it shifted to more conventional R&D.)

  • Alexander Wehr

    the telephone and radio communication came from the private sector. there may have been a boost by the defense department since wwI began, but basically it’s development was private, with interspersed accelaration by various military organizations when it seemed useful.

    the internet was a cold war invention to assist in defense against potential incomming attack.. instantaneous data transfer so we dont waste our 30 minutes calling someone.

    basically, these were not specifically earmarked public spending projects for the purposes of “seeding industry” with the technology.. any contribution to these by government was for purely strategic reasons.

    the point is well thought, but please do not attempt to say that consumer invention was the intended goal.

    as for the others you listed.. i’m not as familiar with their history.. i leave them as they are.

  • Tayssir John Gabbour

    I will personally research these and find the results, with unassailable citations. It is very simple to make “snap judgments” which turn out to be wrong: in the case of containerism, it’s quite easy to believe Malcolm McClean invented it.

    I certainly have no intention of saying that consumer invention was any intended goal; science doesn’t work that way. That would be short/medium term R&D, instead of fundamental and incredibly costly research. The argument is of technology where the public bore the costs and risks, until a market could be found, upon which time companies like Microsoft take over with “embrace and extend” or patent strategies. Those of us conditioned by the BSA might consider that IP theft, at least on some intuitive level.

    If you have a citation for your claims, I would be grateful and would analyze it.

  • Tayssir John Gabbour

    “The argument is of technology where the public bore the costs and risks, until a market could be found, upon which time companies like Microsoft take over with “embrace and extend” or patent strategies.”

    To finetune my sentence, I mean a market that we’re not essentially subsidizing.

  • J. Toran

    I’m jes waking up, and won’t today…)-; So not entirely following the above:


    I wasn’t familiar with BSA, but have studied their goals (tho not their specific goals on 15-second Yahoo search). I’m not entirely in disagreement, if the question is: Do patents help or hurt?

    Point is, you folks are attempting to draw analogies between hardware and software.

    ‘Nuff said?

    What has happened is that there’s been a CONSENSUS that Operating Systems are now in a commodity-market phase. By virtue of the fact that that’s what you get when the cost (probably more accurately, margin) of some product approaches zero.

    Well wtf you expect when the cost of an Operating System *EQ zero, again by consensus and collusion?

    Now, who does that benefit?

    People that produce crap, primarily…)-;


    Btw, wrt:

    “instantaneous data transfer so we dont waste our 30 minutes calling someone.”

    I look at observable results. How’s this working out, for example my Outlook has been whiggin’ out past 2 days (goes to “not responding” status after a minute or two), so WHO do I call?

    Personal problem.

    How’d that work out when the power grid took a hit here in Ohio, summer before last?

    Iow, goals don’t make results in all cases, and frequently result in the opposite of the intended goal. Like “Free …”…

  • Max Lybbert

    On the way home today, I wondered why lawyers would come up with better inventions than, say, computer scientists, enginners, etc. I know, the idea is that lawyers know what can be patented — but patent law requires something revolutionary and different from anything that currently exists.

    Why would a lawyer have a better idea of what counts as revolutionary software than a programmer that knows what software can do today? Sure, a lawyers might be able to file the right papers for a patent, but that won’t put any good ideas in their heads.

    In other words, I doubt there’s anything to worry about from this company.

  • J. Toran

    “Why would a lawyer have a better idea of what counts as revolutionary software than a programmer that knows what software can do today? “

    This would be the essence of the problem the past decade-and-a-half. I believe I still have a clip of the article on the first patent issued, circa 1980-1, mebbe ’82.

    Pandara’s box (but only 1 of many)-;.. Problem was in how it was implemented in practice, more than the theory. Was discussing problem of ‘process patents’ just recently. Patenting a method.. When is it sufficiently “unique” or “revolutionary” and when is it mere technology advance building on the shoulders of those who’ve gone before?…?

    *SardonicWitticism{{Eye of the “best” lawyers ‘thingee’…}}

    Problem is so far gone now, that the programmers/analysts/architects who SHOULD know what can be done today don’t even know what HAS GONE ON. And many, if not most, have ‘gone into politics’ in various forms (at least part-time) a few years back, almost without exception. Because power is a fundamental that gear-heads and ‘fear-heads’ seem to share in common.

    Point is, otherwise these Tech folk and the Tech PRess’d-a BEEN working on and covering i5 these past few years. It’s not like the biggies weren’t ‘warned’ by me, if not others, years ago.

    Advantage: bloggers. (cough)-;

    Can I give this proper emphasis?

    “Why would a lawyer have a better idea of what counts as revolutionary software than a programmer that knows what software can do today? “

    Because the programmers themselves don’t know. That’s why. So, by default.

  • J. Toran

    crap, jes after i hit [post]…

    “…first [software] patent…”

    Also, the essence of the problem is the crappy software is just accepted as good ’nuff. The “Remember Me” function doesn’t…;-0…;-D

  • J. Toran

    SemiOffTopic(*On *Lengthy)

    Since I’m gonna hafta read through The Professor’s political tripe, I may as ‘waste’ your all’s time as well, right?…;-)

    “Business understood that social spending could overcome market catastrophes as well as military spending, but social spending has a downside: it has a democratizing and redistributive effect while military spending is a gift to the corporate manager, a steady cushion.”

    Umm, looking at results Rather than desired results.. well this is blatantly, patently, and verifiable absurd.

    Because social spending has a true downside, not just this facocted downside. Placating the masses to expect the ‘safety net’ to provide them a living, same way Universities provide tenured pProfessors, btw, that’s a huge downside. That’d be great, if the world could make a living being tenured professors. I’ve haven’t ‘run the numbers’ through a calculator, but I believe we’ve got too many people on the planet for all of ‘us’ to be tenured professors teaching the have-nots. Icbw, I s’pose.

    What struck me when I started reading the first paragraph, was the date of the interview. I’d always felt similar, but feelings don’t drive economies entirely. Feelings don’t control what the al Zaraqiwi’s of the world want to do with their power, for but one tiny li’l example from a ‘tiny’ li’l part of the world, in the whole scheme of things.

    Not so tiny, to the families that have brave men and women serving their, from different parts around the global economy, of course! And as I just pointed out over at BarlowFriendz (may be deleted by now, dunno.. still there as of this time ‘incredibly’…?), the divergence of funds was overly-towards social spending, but that’s pretty easy to see in retrospect, to those who can see (as some obviously are rigidly stuck in pre-9-11-call false-economic models, ‘apparently’).

    “A great deal of it is high-tech R&D.”

    This and the part quoted above is essentially true. That’s how the Universities sell the myth, btw, “you NEED us to do all our research at your expense, because that’s where the INHERENT BEAUTY OF DISCOVERY COMES FROM!! as well as the collateral damage/benefits of self-defense/offense, of course!)

    So I’m essentially agreeing with this part of The Professor’s diatribe, however would point out that the fundamental R & D in all these fields can (and was) done by very few individuals. The leveraging into a market, often by relatively few individuals. The mass-marketing, that’s something else entirely but again by somewhat-relatively few individuals.

    The maintaining of humongous mass markets.. seems to accrue to very large enterprises, for the most part.

    Don’t know the whys and wherefores..

    I would emphasize again, the myth of Christopher Reeve’s walking again, may he RIP.. is just more of this that Dr. Chomsky (I presume) is talking about.

    “…for the state-supported corporate sector [and even moreso the state-supported Education Combine]…”

    Anybody discussing the Haiti crisis (not to diminish), would be so far-sighted as to be myopic, im(ns)ho…;-D

    I assume it’s a given that The PRess is incompetent, but the reasons will probably not be touched on much. Unfortunately I’ve claimed ignorance of history on many occasions, and it won’t fail me now. Meaning.. I’m afraid I tend to agree with the analysis (no matter how semi-inconsequential in the whole scheme of things, im-very-ho), but wouldn’t have a clue… Except that, yes, The PRess is incompetent and it apparently has NOT covered the story in the past 4 years since I’ve had the ‘leisure’ time to be catching up on history/current events…

    Agree with the next, and confirms what I’d mostly known in my lay studies. However,

    “..the pretexts of “self-defense” conjured up by Bush propagandists..”

    I’m afraid an ignorant news-slut such as myself would be rather brutal in defense of the truth of the matter, which is contra-indicated by most everything I’ve seen, read and smelt. Iow, the pretext is that there was a pretext.

    As indicated by the misstatement of fact:

    “The Bush administration is at the extreme savage and brutal end of a narrow policy spectrum.”

    Pre-9-11, I would have agreed with this view.

    “Events are the teacher.”

    Haha!! This is a line that puts the journalist Jon Stewart to shame!!!

    “In 2004, more appears to be at stake and interest is greater, but there is a continuation of the long process of disengagement mainly on the part of poor and working class Americans, who simply do not feel that they are represented.”

    Ummm, I just put this piece in it’s historical context, which is pre-election. I’m gonna go out on a limb and say I have no idea who Professor Chomsky voted for (because I really don’t…;-), but I’d expect it would not be Mr. Bush..


    Umm.. And the facts of the matter are that the poor and working class, which excludes tenured professors and students, btw, by definition..

    ..well they ARE NOT REPRESENTED, in either the pseudo-intellectual elites or The PRess. NOT a question of them FEELING they are under-represented, aTALL~!~

    So, I believe, the poor did as I did, which in my case was switch from lifelong “Democrat-leaning Independent” (like voted for every Demz Candidate for Prez since McGovern, my bad?).. to voting (mainly but not entirely) AGAINST THE PR MACHINE AND THE PSEUDO-INTELLECTUALS RUNNING IT.

    Polls will tell a different tale, because the pollsters lie like a rug. Have a recent clip that demonstrates the how’s and why’s, but too tired now to look for it.

    “In Brazil, in dramatic contrast, there was an authentic democratic election. The organized public were able to elect their own candidate, a person from their own ranks, despite barriers far higher than in the US:…”

    You know sumpin, Professor, they had a similar election (for Mayor, iirc) of San Diego. Candidate announced they were a Populist and began campaigning THE MONTH BEFORE THE ELECTION, again iirc and I believe I do. What caught my eye was that she got elected.

    Great advance fer the po’ peeps, right here in the (blue-)States!!! Yeah!!

    Iow, sheesh…)-;

    “Part of the reason is that the activism of the intervening years has led to much more civilized societies in both countries.”

    The Professor hasn’t travelled the blog circuit much, I gather…)-; Granted, this was prior to the result of this election, but “civility”…? ? ? Mebbe someplaces, but not anywhere near The PRess nor Blogaria, the stereoEchoChambers of The Elite!

    Unfortunately, I find myself in agreement with the rest of that paragraph, so I’m not sure where the civility is, even more.

    I’m too busy trying not to become a “heroic victim” so am not familiar with all this that follows in this section of the interview, but I can assure you we can predict fairly easily how far these “ridiculously called ‘anti-globalization’ movements” can reach.

    They can reach to their toes, if they lose about 100 or 2 pounds of fat, imho.

    Iow, this one-world crap is just that. Sorry, and be glad to be shown to be wrong if I live that long. Probably either are impossibilities, afaik.

    Well crap, I dunno what “trope” means, so I dislike it as well… Is that some post-modern form of “tripe”…? Anyhoo, I really do NOT care to find myself in agreement with Professor Chomsky, because I’ve seen some snippets of his comments which implied that the victim of 9-11 deserved it, which is pure academic Piled Higher and Deeper Pimpin’ ‘Ho’s Downtown, afaik.

    Are we innocent as lambs, nup…

    “The reasons are understood by health professionals: privatization..”

    Btw, this is pure 100% bull manure. It is politics in the guise of economic analysis. Show me the stats that prove this, and I’ll show you a liar. Like the liars that do the studies of human sexuality, btw, as well as those participating. (Subtle hint there.)

    While I agree with the over-arching point raised, I’d sure like to Professor Chomsky and Russell Means get in a fight to the death about the “advantages” of National Health Care (one-a the few points I’ve found myself in partial agreement with Russell Means, btw).

    If it was that easy, then why are the lines so long in English Health Care system, I would ask them both.

    Anyhoo, this is obviously tangential to the initial point, which is that Dr. Chomsky doesn’t know wtf he’s talking about when it comes to technology and innovation.

    I may not either, but I know (more-or-less) what I’ve stated above.

    Regarding using public National and/or International resources to fund different vehicles for advancement of..

    First of all, define the “of…” and second of all, sure.. works well in some cases, exceedingly POORLY especially for THE POOR FOLKS FOOTING THE BILL, in MANY others.

    Operating Systems and Software?

    Ummmmm.. there’d be many better ways, let’s put it that way, but “stallmanism” has more-or-less taken them outta the picture. One by one.

    My final point is that it’s a heckuva lot easier to pick apart spoken words than it is to pick apart the written word, except when bloggers or “j”ournalists-these-days are writing. Imo/o.

  • hungerburg
  • Max Lybbert

    Well, J. Toran (regarding patents), I recognize that many software developers simply don’t know some of the more interesting techniques out there. For instance, MIT is working on a P2P system (Chord) that “reduces lost messages (PDF) by use of erasure codes instead of duplication (PDF). Most programmers would simply duplicate all the data.

    Since patent examiners really can’t tell if an idea is innovative, they simply base their decision on certain rules of thumb (for instance, combining two different ideas counts as innovative). In this case, erasure codes were developed for use in hard disks, so using them over the network counts as innovative. Perhaps professionals would find an easier time of “thinking out of the box” as it applies to combining different ideas. Then again, maybe they would come up with pretty obvious concepts but simply not realize that they’re obvious (this patent hasn’t expired).

    And patent specs are supposed to be written well enough that anybody “skilled in the art” could implement the patented idea with minimal experimentation. Something tells me doctors and lawyers without a technical backgroung simply won’t be able to write such a spec.

    Finally, although any previous implementation of an idea makes that idea unpatentable, the patent office only searches previous patented ideas. So many patents are issued although prior art exists, simply because that prior art isn’t patented. This was especially bad when there were no software patents (somebody patented using XOR to flip a bit).

  • J. Toran

    Max Lybbert,

    It would take a bunch of snakeoil professors to invent something that has been incorporated in the i5 since, what?.. ’84 or ’85?

    Data compression is being fancified by the term P2P, is what’s going on at MIT.

    Btw, I’m not in a mood to read any tripe from RMS, especially since there was a patent issued around ’95 for a Y2K “windowing” technique which me an my boss, both numnuts, “invented” in 1990. (Needed to get a 2-digit week and a 2-digit year to fit into an existing 3-digit week/last-digit-of-year.)

    Yer point? If there is one?

    My point, the typing “human” primarily encumbrances the posters of comments, DMCA would fix the problem of comment spam, afaik.

    Also, the “Remember Me” function STILL doesn’t work.

    And ipso facto, the meme that “Open” Source even IS a software methodology is patently false…;-)-;

  • J. Toran

    “Btw, I’m not in a mood to read any tripe from RMS…”

    Meaning, I already agree with most, I assume from reading the first paragraph.

    But I’m just guessing there’s gonna be a case made:

    Because SOME patents are bad, there should be NO patents WHATSOEVER (typical “*nix-’nonthink’”) ™ (sm), and the subtle implications that there should mainly or ONLY be Professors working on building software.

  • J. Toran

    Btw, that question was asked back in Y2K… So what was the answer?

    Oh yeah, stallmanism.. and CC license and all that…

    All you folks “trying to save the world”.. Wtf you ACTUALLY BEEN DOING?

  • J. Toran

    There’s yer answer. Just in the st. nick o time, the U.N. “saves the day”…)-;

    And in the absense of a treaty, the work continues.

    The default is “if there’s no treaty agreed to, whatever goes”.

    Dr. Lakoff, you ever ANALYZE THIS?!? !?!

    The question should be, if there is not treaty to ALLOW cloning, then it should NOT continue, imho.

    Fuck you all, I’ll probably be dead before the shit hits the fan. So whatdwhycare…?

    Heh… It’s just anti-American stuff, same-ole same-o, so what…

    The PRess can continue to do it’s PRopaganda thing, and they’ll have all the answers stallmanism can’t come up with, right?

  • J. Toran

    To bring these questions back on-topic.

    If this dude, very nice man I’m sure.. but.. well if gets a patent on cloning a thylacine, would that patent be infringed by someone doing same on a velociraptor?

    I think we should get these patently absurd, science-as-nice-guy images being propagandized in the PRess worked out, BEFORE the research continues.

    Or “we” can work on the legal issues involving patents, either one… Or both.

  • Max Lybbert

    Well, J. Toran, I agree that we likely agree on the patents issue:

    /* It would take a bunch of snakeoil professors to invent something that has been incorporated in the i5 since, what?.. ’84 or ’85?

    But since they wouldn’t recognize that the technology has existed for 20 years, they would apply for a patent, and the patent office would likely permit it.

    /* Data compression is being fancified by the term P2P, is what’s going on at MIT.

    And, incidentally, being patented.

    /* Btw, I’m not in a mood to read any tripe from RMS, … Meaning, I already agree with most, I assume from reading the first paragraph.

    Yes. Although you may not agree with Stallman that all software patents are bad, you can agree that certain ones (including the one critiqued in the article) definitely are. And how do these bad ones come into existance? By people convincing themselves that they, alone, are more creative than the other 5 billion people in the world.

    So, to go back to my original thought, lawyers and doctors may come up with ideas that haven’t been patented, and the lawyers may know how to file the papers, but does that imply that their patents will be any more bullet-proof than what we’re already up against? Something like 50% of all court-challenged patents are invalidated because of prior art or because they are poorly-written. OK, so the pie crust patent is legally-valid, although it’s impossible to enforce.

  • Rob Rickner

    Question to everyone.

    Is Myhrvold buying patents or the right to license patents. If this is an ASCAP/BMI type situation it wouldn’t scare me much. In fact, being able to license the rights to a whole sector of the technology industry for a flat rate might actually improve our chances.

    Is Myhrvold is buying patents, we have a serious problem on our hands. He’s playing himself like a benevolent dictator. ‘Give me all the power so we don’t have to worry about all the bad people getting their hands on it.’ Yeah right. As soon as his interests diverge from the general public, we’ll feel it. And I’m not going to be explicit as to where we’re gonna feel it.

    To quote Daniel Altman in Neoconomy:

    “Academic economists have identified the ability to own the fruits of one’s labors as an important incentive behind innovation. In an unequal society, however, achieving that ownership becomes more difficult. Gathering up the materials and money to start a new venture is no easy thing for people who are poor to begin with, especially when many wealthier people are also in line. It’s much easier for them to sell their ideas to someone with the wherewithal to follow through-settling for a small up-front payoff in lieu of a long stream of profit. And when the rewards of creativity and innovation seem so far off as to be unreachable, what is the point of pursuing them? To the extent inequality demoralizes, it results in more wasted ability.”

    I don’t think Mhyrvold is evil. He’s just far too invested in the model of one genius who solves all the worlds problem, instead of the far more likely (and academically supported) model that innovation comes from a huge number of people all working together and rebuilding eachother’s ideas. Great things come from great communities, not great men. (I say men because these fairy tales never seem to get beyond their token female innovator, Ms. Curie)

    This firm will result in massive inefficiencies. Small inventors will be paid off long before they gain the full benefits of their creations. An even smaller group of companies, of which Intellectual Ventures is only one, will have all the capital to sink into new projects. Small inventors (either a person, school, or start-up company) need the full income of their inventions. 20+ years to finance more inventions. Buying them off quickly, and investors in small ventures will be sure to pressure for the quick payoff, cuts small companies out of the market. Collectively, less people will enter the field.

    Furthermore, how will Mhyrvold react to competition? Can another venture compete with him fairly or is he going to leverage his IP against unwelcome newcomers. He’s from Microsoft, you do the math (and it ain’t string theory).

    Myhrvold is a big dreamer. He ignores the social cost because he privileges his view of innovation over anyone else (particularly reality). His kurt salon of genius thinkers are going to guide the world for us, whether we like it or not. I’m getting a little tired of not being asked what I’d like technology to do for me.

    Once someone decides that they’re heading for paradise, it becomes easier to justify the little bumps along the way. I’m not buying the dream, folks, and it doesn’t make me a bad person. I charge each one of you to rent, read, or go to the theater and watch ‘The Prime of Miss Jean Brody’ by Jay Presson Allen. Trust me.

    Rob (3L)

  • Joseph Pietro Riolo

    To Max Lybbert,

    I was thinking about your comments. One thing
    that is not often said in the public is the
    culture or mindset of public government, in
    this case, the United States Patent and
    Trademark Office.

    I will not be surprised that the performance
    evaluation of the patent examiners is heavily
    tied to the number of patents that they approve.
    If my feeling is correct, this may explain why
    there are so many patents granted that should not
    be granted at first place. The more patents they
    approve, the better their performance evaluation
    will look. Just imagine the consequence if they
    reject too many patent applications more than they
    approve. Therefore, the quality in patents is
    heavily overshadowed by the quantity in patents.

    I don’t have any direct evidence but I think that it
    is plausible.

    Joseph Pietro Riolo

    Public domain notice: I put all of my expressions
    in this comment in the public domain.

  • Max Lybbert

    I don’t work in the patent office, nor have I ever applied for a patent. My understanding comes from what I’ve been able to find in Nolo’s book on the matter, and the web. A recent Slashdot article said that examiners are graded on how many patents they process. That makes sense, since patent examiners don’t really do anything but review patent applications. However, it’s something of a tragedy because such reviews are meant to prevent “shirking” (i.e., slacking off), but actually encourage it (the examiner has less incentive to do a thorough job if he has to process a certain number of applications). There is actually a whole school of economics that deals with this.

    However, this ends up cutting both was. For instance, to get through more applications, examiners often reject the first version of an application. This requires the applicant to make a stronger case for the invention, and often ends up “narrowing” the scope of the invention. For instance, the pie crust patent decision I linked to earlier involves a procedure to make flaky pie crust that was originally rejected. I’m pretty sure that the original technique wasn’t “novel,” so I think the rejection was a good one. The invention was narrowed to only apply to crusts that followed the original technique and were baked at a high temperature. This was enough to get a patent.

    The rest of the decision is pretty funny, so if you haven’t read it, I really recommend you take a look. Anyhow, this kind of dance with the patent office ends up creating areas where the patent doesn’t apply. That’s nice. It’s one of the few bearable features of current patent law, but it’s a nice one.

  • raoul

    J Toran. You are a first class idiot without anything to say.

  • raoul

    Intellectual property is a joke. It is just a tool used by the aristocracy to exert control over the masses. The following is a prime example:

    Iraqi Farmers Aren’t Celebrating World Food Day
    Nov 11, 2004

    As part of sweeping “economic restructuring” implemented by the Bush Administration in Iraq, Iraqi farmers will no longer be permitted to save their seeds. Instead, they will be forced to buy seeds from US corporations — including seeds the Iraqis themselves developed over hundreds of years. That is because in recent years, transnational corporations have patented and now own many seed varieties originated or developed by indigenous peoples. In a short time, Iraq will be living under the new American credo: Pay Monsanto, or starve.
    When the Food and Agriculture Organisation (FAO) celebrated biodiversity on World Food Day on October 16, Iraqi farmers were mourning its loss.

    A new report [1] by GRAIN and Focus on the Global South has found that new legislation in Iraq has been carefully put in place by the US that prevents farmers from saving their seeds and effectively hands over the seed market to transnational corporations. This is a disastrous turn of events for Iraqi farmers, biodiversity and the country’s food security. While political sovereignty remains an illusion, food sovereignty for the Iraqi people has been made near impossible by these new regulations.

    “The US has been imposing patents on life around the world through trade deals. In this case, they invaded the country first, then imposed their patents. This is both immoral and unacceptable”, said Shalini Bhutani, one of the report’s authors.

    Becoming Monsanto customers at the barrel of a US gun.
    The new law in question [2] heralds the entry into Iraqi law of patents on life forms – this first one affecting plants and seeds. This law fits in neatly into the US vision of Iraqi agriculture in the future – that of an industrial agricultural system dependent on large corporations providing inputs and seeds.

    In 2002, FAO estimated that 97 percent of Iraqi farmers used saved seed from their own stocks from last year’s harvest or purchased from local markets. When the new law – on plant variety protection (PVP) – is put into effect, seed saving will be illegal and the market will only offer proprietary “PVP-protected” planting material “invented” by transnational agribusiness corporations. The new law totally ignores all the contributions Iraqi farmers have made to development of important crops like wheat, barley, date and pulses. Its consequences are the loss of farmers’ freedoms and a grave threat to food sovereignty in Iraq. In this way, the US has declared a new war against the Iraqi farmer.

    “If the FAO is celebrating ‘Biodiversity for Food Security’ this year, it needs to demonstrate some real commitment”, says Henk Hobbelink of GRAIN, pointing out that the FAO has recently been cosying up with industry and offering support for genetic engineering [3]. “Most importantly, the FAO must recognise that biodiversity-rich farming and industry-led agriculture are worlds apart, and that industrial agriculture is one of the leading causes of the catastrophic decline in agricultural biodiversity that we have witnessed in recent decades. The FAO cannot hope to embrace biodiversity while holding industry’s hand”, he added.


    From GRAIN Shalini Bhutani in India [Tel: +91 11 243 15 168 (work) or +91 98 104 33 076 (cell)] or Alexis Vaughan in United Kingdom [Tel: +44 79 74 39 34 87 (mobile)]

    From Focus on the Global South Herbert Docena in Philippines [Tel:+63 2 972 382 3804]


    [1] Visit GRAIN and Focus’ report is entitled “Iraq’s new patent law: a declaration of war against farmers”. Against the grain is a series of short opinion pieces on recent trends and developments in the issues that GRAIN works on. This one has been produced collaboratively with Focus on the Global South.

    [2] Patent, Industrial Design, Undisclosed Information, Integrated Circuits and Plant Variety Law of 2004, CPA Order No. 81, 26 April 2004,

    [3] GRAIN, “FAO declares war on farmers, not hunger”, New from Grain, 16 June 2004,

    source: 16oct04

  • Max Lybbert

    Sorry, Raoul, but I am a little familiar with international patent law (I’m no expert), and this story doesn’t jive with the legal framework.

    Problems with “the legal framework”:

    Problems with the interpretation of the law:

    • the law permits Iraqi breeders to register for “Plant Variety Protection” (pg. 15), something different than a plant patent;
    • the law is clearly meant to create a form of intellectual property for Iraqi breeders, not for international corporations (see pg. 17);
    • this may prevent farmers from saving seeds, but Iraqi breeders will be permitted to save seeds (in fact, that’s the point);
    • more importantly, saving seeds of family-bred crops is not illegal (just as US copyright law only applies to copyrighted books — handing down family journals and recipes is outside the scope of US copyright restrictions).
  • raoul

    �Sorry, Raoul, but I am a little familiar with international patent law (I’m no expert), and this story doesn’t jive with the legal framework.�

    Sorry, Max but the entire war doesn�t jive with 50 years of established international law in the first place. Therefore, just because the implementation of the law does not specifically correlate with your understanding of international patent law (you are self described as not being an expert) is exactly the point. This is another example of the Iraqi�s being screwed by the international conglomerates who have hired the US Marine Corps as their mercenaries. Who could possibly think that Monsanto would let Bechtel and Haliburton have all the fun without getting their own piece of hell.

  • Max Lybbert

    Thinking over what I posted, I need to state, for the record, that since Bremer wasn’t elected, he really shouldn’t have started new areas of “IP” law for the Iraqis.

    On the other hand, the law would be mainly an “industrial” regulation — it would be unlikely to be enforced against personal gardeners.

    Raoul wrote, “the entire war doesn�t jive with 50 years of established international law.” However, when a country (Iraq) attacks the military forces of another (the US) for ten years, invading that country is clearly not in violation of international law.

    Raoul continued, “just because the implementation of the law does not specifically correlate with your understanding of international patent law (you are self described as not being an expert) is exactly the point.” I agree that this was the point, although not the point that Raoul was trying to make. The article referred to patent law, but if Bremer had created plant patents, seed saving would be entirely legal. Bremer created something of a registry for certain varieties of plants. Saving those seeds from year-to-year is illegal, although farmers have the option of purchasing plants that aren’t pedigreed and registered.

    I didn’t vote for Bremer, so I don’t know why I felt a need to defend his actions. Creating new forms of IP law wasn’t his assignment. However, any law Bremer had a hand in can be changed. The Iraqis have already changed other laws Bremer created (most famously capital punishment).

  • Max Lybbert

    I would also suspect that farms that have seeds saved from last year’s stock can plant those seeds, since they would be from non-registered plants. In the future farms will be required to watch what they buy and how they handle it. This isn’t new.

  • Max Lybbert

    Although I’m not an expert here, I don’t think Zennie’s idea would work. If the “new” software still does what the patent describes, then it still infringes.

    Working around patents is still possible, and I know of at least one case where that happened. Since the workaround was released as open source, the potential value of the patent dropped overnight.

    On top of that, open source work that pre-dates a patent may be used to invalidate that patent. Although the patent office checks patent applications only against old patents, any prior art invalidates the patent. The problem here, of course, is that the open source project probably would need to go to court to invalidate the patent.