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Are patents stifling innovation in mobile devices?

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Whereas a mathematical equation like e=mc(squared) does not need to be "created" (worked)?
The fact that a complex wave is mathematically equivalent to a sum of sine waves is an un-ownable fact, but a specific method for doing so can be intellectual property. Jordan could theoretically invent a method for sinking baskets that would be his intellectual property, if indeed he did create a novel method which is non-obvious.

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Jordan could theoretically invent a method for sinking baskets that would be his intellectual property, if indeed he did create a novel method which is non-obvious.

This doesn't sound right, David. Jordan discovers that if you spin the ball sideways from the tips of your fingers, your accuracy is almost guaranteed (because of some physics principle perhaps), and he can patent this method so that no one else can throw the ball in that way? Or a runner discovers that holding your breath while running 100 meters makes you go faster (not obvious) - is this his property? [Can he sue everyone who looks like they're holding their breath henceforth? :lol: ]

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Jordan could theoretically invent a method for sinking baskets that would be his intellectual property, if indeed he did create a novel method which is non-obvious.

Posting to confirm that this is potentially patentable subject matter.

However, actually resorting to patent protection during a game would be unsportsmanlike. To gain an advantage on the court by legal prohibiting your opponents from doing the best they can is poor form. Hopefully whatever administrative organization runs the sport would prohibit a patented technique. Different sports have different standards of sportsmanship, there could be a context which would permit patents to influence the outcome. (yacht or auto racing most likely)

The Fosbury Flop is an example of a novel technique applied to the sport of high jumping. If he had attempted to procure and enforce patent protections the most likely result would be very few people using his technique, thus little direct compensation. Letting the technique be freely available increases his own utility as an authority and opportunities for indirect compensation.

Actually this is a good parallel example to software patents, where one could apply patents but that might not be the most rational action depending on the context of the inventor and the invention.

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Jordan discovers that if you spin the ball sideways from the tips of your fingers, your accuracy is almost guaranteed (because of some physics principle perhaps), and he can patent this method so that no one else can throw the ball in that way?
I doubt that he discovered a concrete patentable method. Do you have a real reason to think that he invented a novel technique, or is this just a hypothetical? You can't patent "being good at a general art".
Or a runner discovers that holding your breath while running 100 meters makes you go faster (not obvious) - is this his property?
Again, you cannot patent a fact, which this is (hypothetically).

As Grames mentioned, the Fosbury Flop might have been a patentable method, but of course it would be unsportsmanlike to prevent others from attempting the method, and also probably not economically viable to actually license the method.

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I doubt that he discovered a concrete patentable method. Do you have a real reason to think that he invented a novel technique, or is this just a hypothetical? You can't patent "being good at a general art".Again, you cannot patent a fact, which this is (hypothetically).

Yes, the Jordan thing is just hypothetical.

I understand your point, except "being good at a general art" would not necessarily be the only aspect of such a novelty. It can be just as novel as the Fosbury, and the discoverer need not even be "good at a general art."

I guess the best practical example I can think of now is the game of chess. There are always new lines of effective openings that are even given names after their discoverers (the Fischer attack, the Morphy Defence, etc). Sportsmanship is one issue, but can some amateur guy who doesn't care about sportsmanship discover a new opening, patent it and thus prevent all professional chess players from using that "unobvious" but effective line? He is not necessarily "good at a general art" - he has just intellectually discovered an effective and new method (like the Fosbury flop) - in fact, these new ideas in chess opening are called "novelties."

I guess your answer is that it is patentable because it fits the theory. But should it be?

Before I focus too deeply on it, it just intuitively looks absurd right now.

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...chess "novelties."

I guess your answer is that it is patentable because it fits the theory. But should it be?

This does not fit the theory or practice of patents. Novelty is not the only requirement of patentable subject matter, at least in U.S. law.

Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.

Chess openings are not patentable on grounds of the 'useful' requirement, the same reason that abstract algorithms and music are not patentable. An invention or even a process should be about something tangible or potentially tangible. A chess match is an entirely abstract affair, even if there were a prize attached to a victory.

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Chess openings are not patentable on grounds of the 'useful' requirement,...

The question, i guess, is whether the opening can be considered someone's property (the creator) and thus protected by some means (the way a song can be protected - if it can?) so that it is used by others only as the owner stipulates.

You see, I am just going along with the arguments given so far on what makes something property and so far a chess opening seems to fit the theory given by others on this board. I'm not sure that you agree with that theory (Sophia, et al), aside from what the law actually says, that is.

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The question, i guess, is whether the opening can be considered someone's property (the creator) and thus protected by some means (the way a song can be protected - if it can?) so that it is used by others only as the owner stipulates.

You see, I am just going along with the arguments given so far on what makes something property and so far a chess opening seems to fit the theory given by others on this board. I'm not sure that you agree with that theory (Sophia, et al), aside from what the law actually says, that is.

A novel chess opening shares in common with other property the fact that it was caused to exist. Thus it is simple justice to acknowledge the originator of the line. However, the special nature of a chess game renders a novel opening unprotected and unprotectable by any of the existing intellectual property regimes.

  • It can't be patented, as described above.
  • It can't be held as a trade secret because it would be exposed the first time it was used.
  • It can't be copyrighted because every new game is a new performance not a copy. Particular games such as championship matches can be copyrighted, but the rights would be jointly held by the particpants or the match sponsor not some other party. The joint authorship of each game creates a difficulty when one player deploys a novel protected line. If the opposing player defends he is creating a derivative work violating the copyright. This is absurd.

One can write a copyrighted book about a new chess opening, but it is the particular expression of the book which is protected not the idea within.

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I guess your answer is that it is patentable because it fits the theory. But should it be?

Before I focus too deeply on it, it just intuitively looks absurd right now.

I suggest giving an argument that the result is actually contrary to the purpose of protecting intellectual property. Just because the application of an idea is novel doesn't mean it is absurd. My intuition, FWIW, is that the patentability of the Fosbury Flop was a fact, and there is nothing wrong with that. However, I also anticipate that sporting organisations might institute rules prohibiting the use of any patented performing methods in their competitions, which would effectively nullify the advantage of a patent on a jumping method. If you don't like the results that could reasonably follow from patents, show why some class of absurd cases can actually arise and why the result is bad. This isn't a matter for intuition, so it is time to focus deeper.

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Just because the application of an idea is novel doesn't mean it is absurd.

I don't think it is absurd because it is novel. Its absurdity arises precisely from "absurd cases [that] can actually arise."

My intuition, FWIW, is that the patentability of the Fosbury Flop was a fact, and there is nothing wrong with that.

With regards absurdity, I was talking about patenting (or protecting) the chess opening in this case - as a reference point for something that looks more clearly absurd (than the fosbury flop). FWIW, I also intuitively find the fosbury flop patent less absurd.

If you don't like the results that could reasonably follow from patents, show why some class of absurd cases can actually arise and why the result is bad.

That was my point with the chess opening example. I think the absurd cases that can arise from preventing other people from playing a particular line in chess opening are obvious. The most obvious one being that further innovations in the game are stifled, particularly along the line of the protected opening; secondly, players now have limited scope of thinking as they must avoid certain combinations; you now need more things to learn besides the simple rules of the game - you have to learn what's already protected before you play the game, etc; the game is basically destroyed.

This isn't a matter for intuition, so it is time to focus deeper.
What I haven't focused on is the principle or counter-principle (or what's specifically wrong with the principle being used by others here - for determining property ownership - that is resulting in practical absurdities). The bad results are easy to focus on, if that indeed is the only argument you require (see above).

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[*]It can't be copyrighted because every new game is a new performance not a copy.

Can't a (theatrical) play be protected so that it can't be "newly" performed by others? Or a musical composition, etc. How is that different from a new chess opening?

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That was my point with the chess opening example. I think the absurd cases that can arise from preventing other people from playing a particular line in chess opening are obvious.
As far as I know, you cannot patent a specific opening move in chess, since the possible first moves are obvious and trivial. You could patent a specific method of doing something, but you cannot patent an obvious action. (Similarly, you can't patent "raising your right hand"). Not being a chess player, I rely on you to identify what exactly is the supposed patentable object, for example "a specific sequence of 6 initial moves, which results in usually winning". What I want to emphasize is that not every action or object is patentable, so I want you to be specific about exactly what is being claimed. My contention is that at least so far, you haven't shown that there is something that can be patented.

But if you are concerned with the fact of limiting other people from doing the same thing, then we don't have to look at chess, we can look at a screwdriver. You could discover and invent a new type of screwdriver with a square head, which would not tear the head up and where the screw could be driven much easier. That could be patented. Yes, it means that for 20 years you have to get a license to make square-head screwdrivers.That is in the nature of property.

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As far as I know, you cannot patent a specific opening move in chess, since the possible first moves are obvious and trivial.

No, it's not that simple.

For example, here is Wikipedia on chess openings:

"In some opening lines, the moves considered best for both sides have been worked out for twenty to twenty-five moves or more. Professional chessplayers spend years studying openings, and continue doing so throughout their careers, as opening theory continues to evolve.

A new sequence of moves in the opening is referred to as a "theoretical novelty". When kept secret until used in a competitive game it is often known as a "prepared variation", and can be a formidable weapon in top-class competition."

But if you are concerned with the fact of limiting other people from doing the same thing, then we don't have to look at chess, we can look at a screwdriver.

I am obviously not merely concerned about limiting other people from doing the same thing; I'm a capitalist. My concern is for situations where this appears to be (objectively) more destructive than it is constructive and whether the principle being applied is perhaps formulated in such a way that it is inclusive of both valid and invalid cases. In other words, perhaps the theory of property could be reformulated to include things like screwdriver designs but to exclude things like chess opening methods, new ways of throwing a basketball, new techniques in lighting/camera-manipulation in filming, etc. The mere fact that something is "created" and has a "practical application" appears to be admitting absurdities into the net, together with the valid cases.

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Can't a (theatrical) play be protected so that it can't be "newly" performed by others? Or a musical composition, etc. How is that different from a new chess opening?

Plays and music that are in copyright are protected. Since chess is a game it has the sportsmanship issues described above for basketball. Chess games reported upon as sporting events are copyrightable only in the same way a football or baseball game can be, which is broadcast rights. The events of a sporting game can be reported as news by anyone.

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Plays and music that are in copyright are protected. Since chess is a game it has the sportsmanship issues described above for basketball.

"Sportsmanship issues" are not enough of a reason to stop copyright/protection of something. So, someone doesn't want to be sportsmanlike and wants to protect his opening. So? He should be stopped because that's unsportsmanlike behaviour? And i am talking about an amateur player who decides to protect his opening; he loses nothing if he is banned from tournament play for doing this, but all the participants in that tournament still can't use his opening novelty.

Chess games reported upon as sporting events are copyrightable only...

That's not what I'm discussing.

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FYI - an update to my original post:

According to various sources, Google's G1 android phone does not have a headphone port or multi touch because Apple "asked" them not to include it. This is interesting because according to Wikipedia, the headphone port is "the oldest electrical connector standard still in use" - dating back to 1878, while multi-touch was invented in 1982 by Bell Labs. Actually, the G1 has multi touch hardware support (both the iPhone and G1 use commodity hardware), which Google has demonstrated in use, but (mysteriously at the time) disabled in the public release.

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"Sportsmanship issues" are not enough of a reason to stop copyright/protection of something. So, someone doesn't want to be sportsmanlike and wants to protect his opening. So? He should be stopped because that's unsportsmanlike behaviour? And i am talking about an amateur player who decides to protect his opening; he loses nothing if he is banned from tournament play for doing this, but all the participants in that tournament still can't use his opening novelty.

That's not what I'm discussing.

Alright then, back to basics.

Property is caused by the action of creating or maintaining it. A chess game is created by the players involved, not a remote theoretician. The players in a sport are not following a script as do the actors in a play.

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A propos copyrighting opening moves in a chess game, copyright governs "original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated" and does not "extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described". Opening moves in chess would be procedures, which are not the subject matter of copyright.

While a unique and non-obvious 25-move sequence might in principle be patentable, it must be publicly described in advance, which defeats the point of the clever new move.

My concern is for situations where this appears to be (objectively) more destructive than it is constructive and whether the principle being applied is perhaps formulated in such a way that it is inclusive of both valid and invalid cases.
So if we can clearly identify any such cases, we can modify the law of patents to achieve the correct result. If we can identify the basic error.
In other words, perhaps the theory of property could be reformulated to include things like screwdriver designs but to exclude things like chess opening methods, new ways of throwing a basketball, new techniques in lighting/camera-manipulation in filming, etc.
Are you suggesting then that patents be limited to only include invention patents? If you don't like the specific words I'm putting in your mouth, you can pick other ones. I just want to know what the conceptual basis of your objection is. No useful process patents? I also want to understand why you can't accept the idea of patenting a technique in lighting/camera-manipulation in filming. I understand and agree with objections to patenting vague notions ("any method of throwing a basketball involving flexing the right wrist leftward")

or trivial differences (especially as a way of extending a patent after its expiration)

You objections to sports patents fail, I think, because they can simply be prohibited by the sports organization. You can always play basketball on the street, you just can't play patented basketball for the big bucks. Thus even if you could come up with a patentable method of playing, I contend that nobody would bother. The best case I can imagine for your sport-patent objection would be if a clever amateur found a great method for leaping 40 feet, patented it, and refused to let anyone use the method for any price. The effect would be about the same as if he hadn't discovered the method or didn't mention it to anyone, except that for 20 years people would be annoyed at this guy. Is this what your objection reduces to?

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FYI - an update to my original post:

Google's G1 android phone

Put away your tin foil hats, says the hacker who enabled multitouch on a G1.

And while the form of the headphone port is old, bidirectional signal passing of audio signals in one direction and simultaneously control signals in the other direction is not so old.

Also for your research on this general topic:

Mossoff, Adam, Is Copyright Property? A Comment on Richard Epstein's Liberty Vs. Property. San Diego Law Review, Vol. 42, No. 29, 2005. Available at SSRN: http://ssrn.com/abstract=491466

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Property is caused by the action of creating or maintaining it. A chess game is created by the players involved, not a remote theoretician.

A chess opening. Not a chess game. And yes, it can be created by a "remote theoretician".

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A chess opening. Not a chess game. And yes, it can be created by a "remote theoretician".

Well then you can have the illusion 'your' opening so long as you don't interfere with other's games.

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Opening moves in chess would be procedures, which are not the subject matter of copyright.

The method of protection, whether copyright or patent, etc is not the issue; the issue is whether it is properly property and thus properly protectable.

While a unique and non-obvious 25-move sequence might in principle be patentable, it must be publicly described in advance, which defeats the point of the clever new move.

Again, the issue is not what point a person has in patenting it - the question is whether it CAN be patented. (Remember that my example involved a person who is not a professional chess player, so his patent might not be because he wants to be world champion, but just because he doesn't want anyone to play that line of opening (perhaps without paying him or acknowledging him or something? The same way a drug company could patent a drug that they don't intend to produce but might want to own it or to prevent their competitor from owning it?)

Are you suggesting then that patents be limited to only include invention patents?

I haven't yet come up with a formulation of property that integrates the obviously reasonable patents and differentiates these from the obviously absurd ones. That's what I intended to gain from this discussion. It goes down to the heart of the thread topic. My task right now is just to question the principle that apparently permits both absurd and valid patents if faithfully followed.

The best case I can imagine for your sport-patent objection would be if a clever amateur found a great method for leaping 40 feet, patented it, and refused to let anyone use the method for any price. The effect would be about the same as if he hadn't discovered the method or didn't mention it to anyone, except that for 20 years people would be annoyed at this guy. Is this what your objection reduces to?

But even if he did accept a price for it - to the highest bidder athlete or something - this still just sounds so absurd that I am at this moment more inclined to simply believe that there should be no such patent, not even theoretically, and all the absurdity disappears. If you do not also find it absurd that one should be able to auction or sell a patented method of jumping to a lucky athlete, then we can discuss it from there. But if we both find it absurd, then we can simply accept that it is an unreasonable situation and thus take a step back to critique the principle that led to it.

Well then you can have the illusion 'your' opening so long as you don't interfere with other's games.

?

This is not comprehensible.

Please read the wikipedia article i referred to on "chess openings" if you want to understand this aspect of the discussion.

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The method of protection, whether copyright or patent, etc is not the issue; the issue is whether it is properly property and thus properly protectable.
You cannot drop the context of the standards. Copyright and patent are not fungible.
Again, the issue is not what point a person has in patenting it - the question is whether it CAN be patented.
Right, so I am presuming that some such situation arises. I've move on to the next question -- "So what?". You haven't demonstrated the evil, so why should we avoid it?

Remember that some people find it absurd that an inventor's discovery can be patented at all. Intuitions about "absurdity" butter no parsnips. Show me why it is absurd for a man to have as his property that which he creates.

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