 This is the final panel of the day and we know that we are the only thing standing between you and The nectar of the gods that is the DIY Brewing that is going to be with us right out there in about an hour Donated courtesy of growlers of Gaithersburg. I think one of the great things about having a home brewer on my staff Is that he interconnects me with things like that? My name is Sasha Binderath. I'm the director of the open technology initiative here at the America Foundation Which is for the technology telecom arm of the foundation's work And we work on a variety of different projects everything from measurement lab net which is now the largest Collet collective of open-source broadband data. I think we're over about 450 terabytes of data that we've now collected and Released under a creative commons zero license for anyone that wants to play around with it as well as the What's widely known as the internet in a suitcase the commotion wireless project Which we've been building in order to help assure that people can communicate regardless of the Surveillance and monitoring that might be happening in their own backyards I'm also joined today by an illustrious panel of folks all of whom I have worked with in some way or other Over the years Directly to my right is Marvin Amore. He's a legal fellow With OTI and also an affiliate scholar at the Stanford Law School Center for Internet and Society he also heads The law firm and consulting practice the Amore group he's sort of like the entire 18 distilled into one dude Who's out there working with a lot of disruptive technology companies? To his right is Tim Lee and usually it's the other way around where Tim's actually interviewing me For ours Technica where he works and he focuses a lot on patent and copyright law Privacy free speech open government He interviews me because he knows even though he knows the answers to these things He needs somebody else to say it because that's a journalist of today But he's one of the the smartest journalists in this space and it's really a pleasure Every time he comes and ask questions because you know the depth that he's going to be able to descend with you Into these issues is far beyond the norm and he's also an adjunct scholar at the Cato Institute Which will come up on my first question to him and to his right Is Michael Weinberg? He's an attorney with public knowledge who also focuses on copyright a lot of telecommunications issues for the FCC as well as internationally and ACTA and also has a penchant for 3d printers Which you can see one right out there today? And We're gonna just have a quick discussion up here And people should also feel free to jump in and ask one another questions as it progresses And then I'll open it up for questions from the audience as well And my first question is gonna be from Marvin Who's you know because you have worked with a number of companies now? Many of which are described as sort of disruptive technologies Under themselves. I wanted to ask you just to get things started kind of what attracts you like a moth to an open flame to that space and What's the interplay that you see between sort of the DIY? Maker movement and sort of the tech startups. I mean we seem to have this Thought in our minds around like the garage and a bunch of crazy geeks who then form a company and become Ridiculously wealthy. I mean that's the American dream And maybe you could talk a little bit about sort of your experiences some of the companies you work with etc Sure So I'll also answer this question as why you should care and why you should be attracted like a moth to a flame And so I got interested in this field but through my interest in democracy I remember when I was a little kid my parents were immigrants And my uncle was an immigrant and he was living with us and I remember watching commercials for MTV I remember this MTV had this big campaign I want my MTV call your cable company get MTV on your TV and your cable system And so I asked my uncle do you have MTV in the old country? And he said no in the old country We have two channels and both of them have the president on on that on the channel This was Saddam Hussein by the way the old country's Iraq and so I thought that would suck that'd be really bad media system I want my MTV and so I got interested in in media as sort of a foundational Question around democracy and freedom of speech. I studied first amendment law And then I got interested in media law and then the internet was clearly the next Platform for freedom of speech for democracy around the world in here and in my sort of work in that area I Noticed that a lot of the speech that we take for granted was sort of Created by technologists accidentally as side projects So if you think of Google at the search engine really important for free speech in our in our age Also a client of mine by the way, do you think of Google? They were graduate student projects by Larry Page and Sergey Brann They weren't it wasn't a business at first. They got funding far later when they were actually successful When you think about Twitter that was a side project of a different company Just created by Jack Dorsey that then took off And so what you have here is you have two sort of tinkerers or makers who create these fundamental speech technologies and so the connection between speech platforms and tinkering Empowering people to speak and empowering people to make new technologies to speak and communicate has always sort of resonated with me and and you can go back even farther when it comes to sort of the DIY movement and Tinkering with not only software, but hardware The person to my left wrote a foundational paper on digital feudalism where he talks about how You know property rights from John Locke on were very important for freedom And nowadays when you buy software, it's you know, you don't own the software when you buy technologies You can't just tinker with them and I think that kind of constraint on both being able to innovate software and hardware Is actually constrained on our democracy and our ability to to lead our lives the way we choose freely right and it's it is very much the case that we're seeing Lockdowns and spaces and I guess you know the purpose of this panel is to discuss the patent system and whether it can survive the DIY movement But it is very much the case that we're seeing the lockdown of technologies and spaces that had never We simply had never even thought that a piece of hardware would not allow you access to itself in ways that we're now seeing Tim, you know because you've got the the the Cato moniker as well. I thought I'd ask you about One of the fundamental problems that I see in DC is the whole left-right conundrum yet DIY is sort of the spanning right like you have right and left and a lot of the traditional Bins for what side of the issue are on breakdown? Very much in the space. It's one of the few places I think where Cato, New America might avidly and vociferously agree on a lot of these issues There's one if you could talk a little bit about why you think DIY and a lot of this space Transcends these traditional left-right boundaries. Sure. I mean, I think this is one of the nice things about tech policy more broadly is that It's an area where partly because the issues are so new and partly because they're just very orthogonal to other things that people are talking about The there are definitely polarized, you know, there's kind of a pro patent and anti-patent axis But as you said, there's there's sort of people on both sides and it tends So one of the one of the ways that it breaks down is it tends to be sort of which industry you're more connected to So if you're if you sort of feel more of infinity for Silicon Valley You tend to be more skeptical of these very strong copyright or patent protections If you are a maybe more, you know, if you're in the film industry or the music industry Then you're maybe more sympathetic to it My friend, Rahan Salam wrote a piece for National Review earlier this week where he sort of made the sort of conservative anti-copy anti-hollywood case that conservatives and actually with the With with the debate over over sopa last month one of the really striking patterns you saw is that you had I think it was 19 senators that Had came out against sopa the day of the protest 16 of those were Republicans and Fritz for various reasons one of which is I think Hollywood is just better connected to Democrats but I think it's really a lot of users are very much up for grabs where It's not really on the radar of politicians yet And so there's opportunity I think to make both kind of free market entrepreneurial arguments to conservatives and also more You know arguments based on equality or anti-corporatism or whatever that more More appeals to the left To me it kind of brings up for those aren't familiar with this the recent sopa peepa Battles it's the stop online piracy act and the protect IP act which were expected to pass up until a nationwide in fact a global online protest against them that flooded Congress with some Over 10 million petitions over the course of a 24-hour period. It was I think safe to say Unprecedented level of involvement over such a short period of time and then immediately everyone's kind of pulled back They're not so much dead as in Torpor right now I say you know because I expect that they will come back at some point Relatedly turn it over to Michael You wrote what I call the poignantly titled this is a direct quote It will be awesome if they don't screw it up Which is an awesome title for a paper I was wondering if you could elucidate what it is who they are and how screwed We in fact are right now this is around 3d printing of course Not that screwed so I'll lead with that. That's good. Yeah, I mean it was it was a paper about 3d printing and talking about Now that we have 3d printing that it's come along and it really has started to break into I don't know how I say the mainstream, but but there was a significant group of people in the public who were thinking about this If I was in a disrupted industry and I saw this coming and I wasn't super excited about competing against it What would I do and how would I start thinking about it? And maybe what would I say to people in Washington to discourage it coming across and so You know our public knowledge as an organization was founded and focused a lot on the last ten years of digital copyright Fights and it's unfortunate. They were fights, but they've been fights like soap and Pippa. And so the thinking was all right When that happened when those conversations started there were not a lot of people Organized in Washington on the this stuff is great side. And so a lot of the laws that we see For better or worse don't necessarily strike the balance that if we were writing them today They would and so the paper was designed first to kind of lay out the lay of the land because a lot of people were asking Questions just sort of general how does the intellectual property impact these 3d printed things? But also say okay well and which way would those change and not to say that we should or shouldn't do it But let's be prepared for those movements. So when they happen, they aren't necessarily a surprise and If they turn out to be movements in the wrong direction, they there's no reason that they will be with they could be Let's be prepared for that and ready to push back and say no these these these things are amazing This is actually a great thing for society. There's no reason to take steps immediately to sort of shut them down They aren't pirate boxes. I guess So okay, so let me throw a hypothetical out to the whole team here I own a car like the widget that's connected to the thing in the Bob broke and I can get a genuine replacement part for like a hundred ninety nine dollars and ninety five cents Or I can download the schematic print it out or mill it for 37 cents Should I I think I think it depends, you know, I think that you you you you you have that moment, right? And you say okay, well this part if this is the part that makes my breaks work Do I trust myself to create this thing for 37 cents? Probably no, you know, it's your call but probably not you may want to pay the premium for it But if it's if it is the thing that you know I don't have a car anymore. I can't imagine what this looks like anymore But you know, if it is the the thing you slide to lock and unlock the door Do you trust yourself to make that? Yeah, because if it breaks It's the door still gonna lock and unlock. It's not the end of the world So the I think the question the question doesn't always Should I be able to replace every piece of my car with something I printed at home? But should I be able to replace some of the things in my car with things I printed out at home? And I cannot think of a good reason the answer that would be no Anyone else want to weigh in because obviously, you know every model of car seems to have just a slightly different form factor for every part which is then patented in a way and you're like There's no functional reason for that other than now certain Certain physical objects with a certain look are now patented And I wonder like you know if if digital is done for copyright what 3d printing may end up doing for patents and the like what What do you see the future looking like in a space where? You know the auto zones of the world are competing with Bob in his shack For the future of car parts. So I think I think you're asking a fundamental question about the future of innovation and so One way of thinking about the way innovation happens is you have sort of proprietary technologies You have broad patent rights given to the first inventor and that brought that broad patent right applies Maybe to follow on inventions sustaining incremental inventions, and that's one idea And there's a school of legal thought around that, you know championed by a law professor named kits Just give broad patents and if anyone wants to create something cooler different don't worry the market will figure it out There'll be a transaction there'll be contracts and they'll be licensing cross-licensing of some sort And that's the best way to have innovation another way We could have innovation is to let people tinker on the edges and to sort of create a new part And you might even have more innovation if cars came in a sort of open Way where you could trade parts out trade new parts in and Sasha could be an innovator and so if you look at some of the Some of the nascent industries out there like you look at robotics There's an open robotics movement where these projects are trying to make Robots that you can trade out the parts for it fairly easily you trade out the arm you trade out the face or whatever and that way people will buy robotics Tinkerers and then tinker with it knowing they're not locked in and knowing they can expand the market and some of the pioneers in the software industry Think of robotics is being at that stage where we choose between an open model and a closed model same way years ago We chose an open model for the internet that resulted in you know app stores app innovation website innovation And so to the extent that And you see this also in the in the biotech space There's a biotech movement a home bio movement where people are trying to get open access to open Technologies and bacteria etc that people can use to innovate and so the question you're asking is which model of innovation is better Can we count on lots of different transaction costs for every single person wants to innovate and proprietary? And the project proprietary model, or do we have a model where we have open standards open source? And the and what people would call that model if you're going to go through the the economic theory and sort of an example people would call that Avoiding the tragedy of the anti-commons so think of think of property rights that have an exemption Right you own your house, right? You own your house up until some some high place in in the air and above that you don't own the property above your house Right planes can fly there freely without having to transact with every single person who owns a house across the country Just to fly right because the idea is that the transaction cost would be so high and nobody actually there'd be no Transact with and so when you're talking about You know fix your own car innovating at home, you know trading out parts of a robot You know it might be more like the airspace that we want people to be able to fly over Unobstructed and not the kind of things that you want to have under lock and key patent law property law Tim do you want to weigh in yeah, so well one of the key issues here, I think is that when you're contrasting the The sort of different styles of innovation you've got a capital-intensive style Where you got a big company that has a plan and they put together design and they spend millions of dollars and then put it out Versus an incremental style where you have lots of people taking what previous people done and changed it a little bit One of the differences there is that there's a lot of fixed costs to Participating in the patent system if I'm and this is especially true in software But it is probably it's also true in other areas of where if I just just you know I've got something I'm thinking about inventing I just want to figure out is this patented or not that costs a fixed amount of money it's probably depending on the technology might be a very large amount of money and So if you have a style of innovation where lots of people are adding little bits and pieces It might cost a hundred times as much to find out if this is patented Then it costs to do the little bit of innovation that you're looking to do And so you want to be if you have a more do-it-yourself type Innovations you want to be very reluctant to force those people to participate in the patent system Because they don't have the resources that it takes. It's only really big companies That have the resources it takes or at least full-time inventors that have the resources It takes to really do the things that the patent system demands that they do I think that's a really interesting distinction between a Large company capital intensive and traditionally you think of it as large company capital intensive versus small kind of periphery players Who are operating fairly autonomously all trying to work on the same problem? And I think one of the things going back to a question from the last panel that makes the maker movement now different than Crafts or things in the past is a sense going to cliche is the internet and so instead of having a central highly capitalized industrial business versus a Autonomized set of semi independent or mostly independent actors you now can actually have I mean if you think about the open-source hardware movement You have a huge community of people who are spread out all over the country all over the globe But are coordinating in a way that was previously only possible if they had been centralized by some sort of central actor and so But but because they are coordinated they can create in a way that is very similar to what was only available before and so That's that's what makes this kind of a different thing and and and something that Needs further thought than as opposed to just saying oh well, you know It's it's it's this or that which obviously you were not saying but it's that's that's kind of the So the one way to think about what is different about this than before Relatedly I mean so you know supposedly if you got a patent They're supposed to do a a test to make sure there's no prior art out there and etc And in an era prior to the internet that was a much more complicated endeavor Yet today I still constantly am seeing patent claims made on things that are a Obvious which is a whole nother issue, but be where like a simple Google search will show you like a decades worth of prior art in that area What's going on there? I mean with a blossoming DIY movement prior art is going to exist across a wider and wider swath of this space You would think patents would become Fewer and fewer and yet we're seeing exactly the opposite The way patents are framed you you know It's you think about you know the light bulb or the cotton gin or something But the way actual patents are written is that there is pages and pages of dense legal ease that describes exactly You know what your invention does versus what well other inventions and there's lots of like big words that only patent lawyers use and and so what they tend to do is they tend to Sort of carve out if they know this prior art to sort of carve out well We're not talking about that but we're talking about some other class of sort of related things And you can't really do a Google search for you know a paragraph of legal ease because The words that your patent lawyer used to describe what you invented are not the words that normal people would use to describe it and you would Actually need some fairly advanced artificial intelligence technology to take a legal description and translate it into something You could you know to have a patent search that would allow you to pull up all the relevant patents Reviewing the patents can understand them though But Software is the best example of this you know There's 40,000 software patents issued every year and so you sure you can understand them But no no you have to know which which of those you can't read all 40,000 You have to know which one of those which of those do you need and you don't have to read to understand it And you know especially if it's a new technology there might not be standard vocabulary for how do I describe this and so You know one one inventor described it one way another described it another way the patent examiner doesn't think that oh This is a synonym for that and so they miss it So I think the problem is often sort of more fundamental. We've we've incentivized People not to do patent searches, but there's no obligation to do a patent search and if you do a patent search Then then you're there's a concern that you might be willfully infringing because you've now discovered There's no there's an obligation to so people end up ignoring patents all the time There's it's like well-known like if you're going to start a company you just ignore patents You don't do the patent search you just sort of try to create your company you iterate quickly You try to hit the market and if you get big enough for someone to want to sue you great you've succeeded and so There's when it comes to the patents system what ends up happening as people ignored often in the early stages It's ignored widely and then once you get big enough and you're a target You then start patenting everything because someone is going to sue you and you want to be able to counter sue them With your own batch of patents so everyone has an incentive to make to file a whole bunch of patents to not research them And then to use them defensively against other people who try to sue you by counter-steering them saying oh well You think that you own of a buy now button on my website? Well, I think that I own the you know I don't know the widget on your on your website shopping cart the shopping cart I know the squirrel bar whatever right and so that's why you have so many of these awful software patents Because that's the incentive we have and I'm not sure who benefits from it Yeah, it seems like we've sort of made do with people ignoring patents and then but getting a whole bunch of patents and then suing each other But but I've heard from venture capitalists and from startup folks in the tech space that they don't they don't worry too much about Getting a patent or searching for patents because the system is kind of dysfunctional It's important to note here that that it's not this isn't true in every industry So what one of the patterns you see is that again it goes back to the sort of incremental versus capital intensive So probably that I think that the industry where everybody agrees the patent system works the best is the pharmaceutical industry And there's two things about the pharmaceutical industry that I think really make the patent system work Well one is that pharmaceuticals are mostly manufactured by you know half a dozen very large companies That can afford to have patent lawyers to look over everything and number two The search problem is much easier because you've got a chemical formula Which tells you whether or not it's patented or not And so you can read quickly if I if I go in the lab and I come up with some new chemical And I want to know is this patented or not I can very quickly there is a Google for it's called the orange book in the case of pharmaceuticals where you can look up Is this particular drug patented? There's nothing There's nothing analogous for software Because partly because there's software is very complicated So there's many different components that could be patented and partly because you don't have anything analogous to chemical formula where you can quickly look up, you know a specific invention and so I'm just curious so with the sort of biohacker sort of homebrew biotechnology people the cost of Doing research in the biotech space has gone down so much that people are sort of doing it in their spare time Will that put pressure on the patent system as it exists now and the way it works in the pharmaceutical industry Where something will have to give so I actually don't know as much about how the patent system works in biotech as I do Definitely have the impression that the traditional pharmaceutical patents is separate from biotech patents and so I would certainly suspect that any any industry where you and any part of the Biology related industries where you have that kind of incremental innovation. You would you I think you would expect similar kinds of negative effects from allowing patents, but I don't want to sort of cite chapter and births because I'm not sure exactly How'd they work dude? Do you have a better I know I'm no expert on on those patents so It'll be an issue that'll come up sure and you know when I when I look at When I read through the Constitution, I can pull out the clause that says, you know The purpose of copyright right to promote the progress of science and useful arts. It's very clear What's the purpose of patents? The it's the patents Patents are part of the same phrase by the same clause and so it's to promote the progress of Arts and science and useful arts So it's useful arts is what the purpose of the patent system is supposed to be and so the question The question is whether or not Congress has crafted a patent system and whether or not the PTO is implementing a patent system That actually does promote the useful arts Or if it's it's failing in that in that objective This is actually one of the things that is really cool about patents is that you know when you live in the copyright world Everything is copyrighted by copyright the second it's fixed the patent system has these bars to entry And so what it means is that when you have a community of people on this is especially true for the kind of the DIY folks We have a community of people who are really interested in developing and sharing and don't feel like the way they need to recognize innovation or or reward innovation is to sue people in court They're already opted out of that system And so you see this you know again in the open source hardware movement You see this in all sorts of movements that are dealing with with making and hacking and creating things that are not within the sphere of copyright They're kind of building their own systems of reward and recognition that allow people to Create things but don't require them to go through the legal hoops And so it's it's this incredible kind of Petri dish or saying well, and we can't do this in copyright We can do it and we can do it in patent we can do it in hardware innovation what happens if we have a whole bunch of people who are really interested in innovating whether in big steps or little steps and it's hard for them to get protection that Allows them to kind of hire a big law firm and come into court where they do and the answer actually seems to be They they figure it out They they figure out a way within that community to to protect innovation in a sense reward innovation And there doesn't seem to be a need to build this whole new system It's a question it's open question as to whether or not it scales But it's a moment to say Where are patents needed and where are patents not needed and you know There's this looming threat of as you said earlier What if you have all this open innovation and someone else who comes in who had who was capitalized and can then patent What seems to be running around and everyone sees it? How does that mess up the works? But you at least have a community of people who are free to create Without being required to jump through the legal hoops and just to see what that looks like And that's that's one of the really exciting things about this community One of the advantages of patents is that it's Everything is impended by default it used to be that way with copyrighted, you know, sort of wish it it still was but but the the flip side of that is that copyright has Effectively what's called an independent invention defense So it's very very difficult for me to accidentally infringe somebody's copyright right either I if you wrote a work and I wrote a work that's similar that the odds of my work being word-for-word identical to your work is small enough that The courts can very easily tell I'm only liable if I actually copied your work that's not true of patents and So what that means is that if I have a community so the free softwares community has sort of solved this problem, right? They have licenses like the GPL where someone wants to opt into a sort of low copyright protection regime They can voluntarily do that and some third party can't come along and say hey Wait a minute, you know you stole my software because if as long as you didn't actually copy that guy's software You're fine in the patent context in Context in contrast There's six billion people on the world in the world any of them can claim fairly broad concepts and it doesn't matter I think the statistics something like more than 90% of patent infringement are inadvertent infringement where they copy the original Inventors work they just happen to have come up with same idea independently And so I think the good thing is that it costs enough to suit people that most DIY creators are not in practice going to get sued but theoretically They're probably almost all infringing somebody's patent and it's just they're just lucky. They haven't gotten sued yet Yeah, I guess I would say that is absolutely right, you know what once I guess once you were in it's very bad But there is a space that you can operate in that you are not in by default when you are always in with copyright And maybe it isn't as bad although it's plenty bad But there isn't that kind of that free space to operate in so you don't get the same kind Of experimentation, but I will certainly not sit up here and say the patent system is perfect and can handle everything that we throw at So the when you think of patents as intellectual property I mean we've property is the ultimate government regulation over the years We've shaped property rights and property law in a way to you know enhance efficiency and freedom in theory And so if you look at property law, it's essentially my right against some other person you come into my house I can call a police officer to get you removed from my house under trespassing Right, so it's an exclusion to other people and that's what like a patent right is there are lots of exceptions to property law Lots of different built-in social rules that we have in there like necessity if somebody has to jump on my property to protect themselves in A storm, right? I can't call them. I can't get them sent out for trespassing There are things that can't be subject to property rights like humans, right? And there are certain things I can't do with my property like right into the covenant this property shall only be sold to white people But there are lots of different Exemptions and rules around property law that are very detailed that are really regulation about how we want our society to be governed and innovation and and free exchange and in the patent system We have lots of different sort of parts of the deed lots of different exceptions that are designed and that the courts have sort of come up with that Congress has come up with and It's evolved over the years things from like the first sale doctrine a staple of commerce action All these things in the patent law they're designed to give some breathing room for you know For different kinds of technologies to not be covered by the broad property, right? And the real question that that you know that we're sort of struggling with and asking is Should we tweak those should we change those what should be our guiding principles? Should that should we believe that a really broad patent system? And that our existing patent system should be strengthened in an x-way or do we believe that we should have More give and take you know sort of support the tinkerers out there and change the patent system in a different way Or you might just want to give up on law all together Which I shouldn't say as a lawyer it's a statement against interest but people sort of contract in the shadow of the law and so we've we've you know We've mentioned when it comes to open source technologies People will come up with a kind of law like a license a general the GPL license where you can use this software It's open source and you can use it but under certain conditions like whatever if you add and improve it You have to contribute it to the program and everyone else can use it It's sort of open source and there there's a open robotics project out there There's there's bio bricks and open sort of biotech project and people might end up You know sort of in the fate in the shadow of the law You know giving away platforms giving away Linux as IBM does sort of supporting Linux giving away the Android system supporting Android Which which Google does is sort of a platform out there that they can't reappropriate So people will invest in it and build and add to it You know there other people are giving away, you know the robotics in an open source way Kind of contracting in the shadow of law thinking that you know Congress won't clean up this mess But we'll figure out ways that we can do it without Congress. So we're gonna open it up for questions in just a moment Let's say you guys are like chief mugwump of the patent system Like let me throw it back to you as to like what would be the first thing that you would start changing or rectifying or another way tweaking in the patent system sure so It sort of depends which I guess a question of how deep you want to go what one thing I would do is is I'm very skeptical of Allowing patents on software at least in the first place and there's some other similar categories there There's a series of court decisions in the 80s and 90s that they greatly Expanded the set of things that can be patented and I think that this the set of things that they started allowing patenting our To a large extent the kind of DIY things we're talking about which I think for the most part those those patents have been counterproductive And so if I were you know on the Supreme Court, I would I would want to reverse those decisions So that's the first the main thing that I would advocate Yeah, I think you think you always start at this point with with software patents I think if I was gonna first gonna build on that and do something else because that would be definitely first is deal with what What sort of evidence you can you can bring to show prior invention to show this is already out there because I mean the real The real purpose of patent, you know we talked about promoting progress one of the covenants of patent Is that in exchange for patent protection you teach the world how to do the thing you want to do? So if there is already someone out there Sharing this new invention that you have with the world or doing it essentially simultaneously with you the idea of Rewarding you for sharing your idea with the world by giving you a monopoly on it just doesn't make a lot of sense And so that would be the that would be the area that I would look at once we took care of this software foolishness Is that I think it should be much harder to get injunctions against patent infringement So the way that patent negotiations often works somebody accidentally infringes your patent You come along and you say, you know you pay me and they refuse What you try to do is you try to get the courts to have an order shutting down your competitor And then you have a very strong bargaining position where you say you have to write me a huge check In order to do that and that creates a lot of Certainty a lot of litigation a lot of sort of gamesmanship if you had a rule As I understand it the courts have made it much easier to get those injunctions But the courts could also just say okay you infringed we're not going to make you stop But we're going to figure out what the value of this patent is and make you pay the other guy I'm out. I think that makes the system much more predictable and it makes it much less hostile to Especially accidental infringers It's you're much less worried about if I enter this new this you feel with a lot of patents I'm not going to really get nailed if I miss a patent it's relevant to what I created Let me answer quickly. I agree with with all of this The case that sort of upheld software patents the test that's the kind of Touchstone test has to do with whether or not the software is tied to a manufacturer transformation And so it's essentially tying the software patent to some extent to hardware And that I think could be a problem going forward when it comes to the DIY movement and hardware It's sort of the patents tied to that and the other thing is I don't know if any of you saw or heard that this American life About patent rolls. So if you haven't it's the most interesting thing about patents ever done and so and so we need to deal with these patent rolls or these Non-practicing entities that just buy up thousands of patents or like have a few inventors They have an office in the eastern district of Texas. They bring all their lawsuits there because that's a favorable court to them Their offices they don't do anything other than buy up lots of patents and sue you with five of them claiming They've invented some technology that already existed ten years ago and if you were to win that case they could then bring five more and It's essentially just protection money You've got to just pay these guys off to get them to go away because that's cheaper than litigating And there should be something like I don't know a death penalty or something or some sort of way to know Some sort of punishment for for these patent rolls because I don't I think they're a problem All right, let's open it up for some questions. We'll start right here with this lady Thank you I'm Linda man with the YouthQuest Foundation and we are working on a project to work with at-risk kids in the tinkering environment and the concern that I have and we started kind of in that direction and then went off to software and hardware but I'm concerned about For example, we're looking at partnering these kids with the Wounded Warrior program where they're helping to implement or fix or resolve issues with artificial limbs for example and The concern that I have is where is our vulnerability in the patent system? If this kid sits down with this wounded warrior and comes up with something that works for them But that's something that exists somewhere else and I'm and I did I'm really kind of Flummoxed about how all of that works. Can you help? This is not legal advice But you and you guys can can jump in I'm not sure exactly who could help But I'm sure there'd be a non-profit legal group that might be interested electronic frontier foundation one of the clinics at Harvard or Sanford If you were to be seen and and maybe what we can talk after about who you should maybe talk to you Maybe put public knowledge With a sympathetic case like that, right? My this isn't legal advice I wouldn't I wouldn't even look for prior art because of the willfulness problem And I would just go ahead and if they sue you or if they file the threatening if they send a threatening letter File for declaratory judgment and you'll have very sympathetic facts And you'd be a hero to the DIY movement because what judge would rule against kids making prosthetic arms for wounded warriors, right? And so Picking your picking your legal cases is very important and that'd be a great case to take My name is Lee young I'm thinking that in the real world how many patent who want to file but was denied some for some and Unknown reason maybe and I just wonder Even if you want to proceed to the court and you know small guy It's not easy to win and eventually you cannot even get a legal fee back Even you win at all. So I just wonder if By any chance the lawyers with advice the client say that simply Back out and or take some small amount of money rather than you think the potential profit is so huge I Mean that that would be a strategic decision And so if you're a lone inventor and you have a patent And some big guy who's a competitor has a hundred patents and a lot of money And they they sue you and want a licensing fee into strategic all right If you're if you're starting a company you have only so much bandwidth your most scarce resources time you want to focus on building your product hiring your best engineers are the top talent and it probably happens all the time that people pay the licensing fees or Or you just get distracted by by these kinds of issues if they get on the radar of a big competitor Yeah, there's a reason people call patents $10,000 gun that shoots $2 million bullets is if you were a small if you're a small organization And you've got a patent it's that's that's congratulations That's step one but enforcing that right is unbelievably expensive And so when you get into a situation where you were in a patent fight if you don't have a big box of money you You know you will probably often be advised to find a way to resolve it that is not involved litigating it all the way through They'll go to their massive war chest of patents and find ten patents that you you might have infringed and counter sue you and then You'll end up paying them money. So anyway, so we got we got about two minutes left I want to take maybe three quick questions, and then you guys can just answer whichever ones you want So go here. I'll just work my way back. So here they're no over there Yeah, hi very briefly. Sure. Um, my name should send up time. I'm a patent agent with law firm of Pittsburgh Winthrop I just want have one comment that There's something called Independent inventor Assistant center at the patent office. So those of you who are discouraged by the costs involved first and foremost the cost involved for Independent inventors or what the patent office calls as small entities is Significantly smaller than what it would be for big corporations And second the guys at inventor assistance center at the patent office are very helpful if you are Writing your own patent application and filing it. So that's just a comment I thought I'll share with everyone Then right here Pitha Lee, please. Hi, my name is Susan Abbott with Internews and I wanted to know from your perspectives as legal scholars and practitioners To what extent is this an American problem? And do you do any comparative work? How do other countries policies influence you and? Particularly China and I've heard a lot of comments recently about their indigenous innovation How does that affect your thinking in terms of America's public policy regarding copyright and patent? We'll get one more. There was a hand over here. Yes, right there. Hi. My name is Drew Arnold I'm an animation animation and effects director Copyright to me is you know pretty clear, but I'm thinking about 3d printing and We're the laws reside in that and I'm thinking maybe somebody hosts on their website Plans or diagrams or schematics to print something. That's a copy Protected by patent or copyright Where's the law extend to it? Does it does it start where somebody hosts this sort of diagram? Or does it start when somebody actually prints the material? Some big questions and small amounts of time to answer them, but turn it over to you guys This point here, I'm not sure the big problem for small inventors is getting the patent I think the big problem is that other people have patents that might be used against them at some point and I mean in terms of the patent system itself and whether or not it encourages Innovation even in the tech space if you think of some of the greatest inventions in the tech space like Twitter Google I don't Twitter especially right. That's not really patentable. That was sort of you know first to market network effects user design Airbnb not patentable a lot of these technologies that have really taken off Well, I mean they're knockoffs all the time right and so Patents might not be as important as we think they are and if you think of certain sectors that have had tons of innovation You know think of food right nothing is a better example of like the DIY Ethos and innovation event food like think of you know local 16s Nutella pizza I love that who'd have ever thought of putting Nutella and strawberries on a pizza, right? No patents on any food when you look at fashion no copyright no patents So you often have lots of innovation. That's the DIY level without any strong property rights And so I think the the harm to to an inventor of not having a patent Isn't the real harm the harm is that other people do have that and so you can use against them So to answer the woman's question on the left here Some I haven't seen I'm not familiar with the literature on sort of very detailed looks of the different patent systems But my my impression is that the there's been a global trend Since the 70s of the 80s towards stronger patent protections along several dimensions and that that trend has been much more pronounced in the United States than in other countries So in Europe for example There has all there's been a similar expansion of what can be patented But there it's harder to get patents on software and business methods in Europe than it is here in the United States So my senses of the patent system works a little bit better in Europe and Japan than it does here But they have some of the same dysfunctions that we do China China has made a national priority of generating more patents and therefore has expanded what is patentable and I used to live in China I would say this with love for China be very skeptical of numbers you see coming out of China When it is numbers reflecting a national priority I wouldn't use it as a real hard and fast metric and for the question about you know when you are in trouble There's a lot of there's a lot of doctrine around contributory liability in copyright So not you know sort of making stuff available and things like that that actually doesn't exist as much in patent The threshold for for what you were when you were doing something that is wrong is much higher in patent So it goes back to what the actual protectability of those things that you are actually hosting is and that's a Kind of an issue by issue or an object by object analysis So it's 5 p.m. I'm parched. I hope you are too There is DIY beer out there and in their interim, please join me in thanking these panelists for this wonderful conversation