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On Patenting Music and Patent Hypocrisy

Tags Legal SystemInterventionismMonopoly and Competition

In a recent issue of Greg Aharonian’s PatNews newsletter, he points out that it may be possible for patent law to be stretched to cover things like music, which have traditionally been held to be non-patentable. I reprint the entire entry below. In it, Aharonian fumes that patent attorneys don’t fulfill their “ethical” obligation to speak out on how far patent law can be extended. It bugs him that they are “silent”.

I noted to him that he and other advocates of the patent system are also silent when it is pointed out to them that if they advocate a patent system on wealth-maximization grounds, it is incumbent on them to demonstrate that the patent system is a net benefit–and that no study to date has done so (as noted in There’s No Such Thing as a Free Patent).Since I don’t expect a serious reply from him, I’ll just reprint a version of the letter to him here:


I find your comments here interesting–when you criticize patent lawyers for their “silence” on the isuse of how far principles of patent law can/should be stretched to cover traditionally non-patentable subject matter such as music. You write, “when your arguments address such fundamental issues, you are obligated to write about the implications of your argument.” and “Here are two questions. If you can’t answer them, you shouldn’t be practising IP law….” and “It is unethical for patent and copyright lawyers to ignore the growing overlap, and growing clashes, of their two fields of law. It betrays both the progress of science and their clients’ interests.”

Now, I am not sure I agree with your views of ethics and obligations: you give no rationale to support your contention that these types of ethical duties exist; you merely assert it, as if it is obvious. An argument that there is such a duty would be interesting to read–I’d be curious to see you attempt it.

But in any event, what I’m writing you about is it seems to me there is some inconsistency on your part. You recently posted about the study that “software patents have NO NO NO bad effect on industry”; I emailed you that this is a weak defense of patents–they don’t do much damage. I noted that “Even if this is true it does nost showpatents are worth the cost–or that there are no costs.”

Now, you replied:

“True, but in general. I am glad to argue with you whether or not all patents are worth the cost (across industries), or that there are no costs associated with patents (across industries). Because of the sparse data for a complicated econometrics questions (and the lack of data of business without patents), these questions are legitimate.”

You said you were glad to argue this–yet you refuse to really do so. Aren’t you doing something as bad as the patent bar you accuse above, when you refuse to accept the implications of your views, or to accept the burden of attempting to provide a justification for something that you support? In particular, let me ask you: First, don’t you agree that most people who argue in favor of patents do so on at least implicit ground that the patent system is “worth it,” that is, that we get benefits from it (increased innovation and disclosure, etc.) that are greater than the costs of the system? Second, don’t you think the burden of proof is on them to show that there is some kind of net benefit? Third, don’t you agree that this has not been done? Show me some study showing the magnitude of the benefits, and costs. You admit above that my questions are legitimate, and that there is “sparse data for a complicated econometrics questions (and the lack of data of business without patents)”.

So do you agree with this? So where is the argument put forth by the defenders of the patent system (such as you) that the patent system is worth it? Where is a genuine effort to even point to some study that purports to show this? Is it even possible to show it? After al, the costs are clearly large and non-trivial; the benefits are unknown and not clearly demonstrable. So if you claim the system is justified on the basis of a net benefit–wealth generation–and if it has not been shown, and maybe cannot be shown… doesn’t this imply we should not have the system until this can be shown?

Why the silence from advocates of the patent system when this is pointed out?

(Recently, patent attorney Dennis Crouch pointed out some example of a “patent success story”; when I pointed out that for it to be a success, it would have to be shown that the benefits he notes are greater than the costs, he basically conceded this point. (See my discussion of this in “A Patent Success Story?”). Further, as I noted in my post Miracle–An Honest Patent Attorney!, I had a letter in IP Today, in which I responded to the comments of a patent attorney to the effect that “the patent system is necessary for there to be invention and innovation.” I explained in the letter that

“There is … no conclusive evidence showing that the purported benefits of the patent system–extra innovation induced by the potential to profit from a patent; earlier-than-otherwise public disclosure of innovation–exceeds the significant and undeniable costs of the patent system…. Is the patent system “worth it”? Who knows? Apparently no one does. It seems to follow that we patent attorneys ought not pretend that we do.” I received in response an email from a respected patent attorney, a senior partner in the patent department of a major national law firm, who conceded my point:

Your letter responding to Joe Hosteny’s comments on Patent Trolls nicely states what I came to realize several years ago, namely, it is unclear that the U.S. Patent System, as currently implemented, necessarily benefits society as a whole. Certainly, it has benefited [Hostey] and his [partners] and several of their prominent clients, and has put Marshall, Texas on the map; but you really have to wonder if the “tax” placed on industry by the System (and its use of juries or lay judges to make the call on often highly complex technical issues that the parties’ technical experts cannot agree on) is really worth it. Of course, anyone can point to a few start-up companies that, arguably, owe their successes to their patent portfolios; but over the last 35 years, I have observed what would appear to be an ever increasing number of meritless patents, issued by an understaffed and talent-challenged PTO examining group, being used to extract tribute from whole industries. I have had this discussion with a number of clients, including Asian clients, who have been forced to accept our Patent System and the “taxes” it imposes on them as the cost of doing business in the USA. I wish I had the “answer”. I don’t. )

So, Greg, let me ask you: why are you silent? Why are patent attorneys silent when, after making the robotic claim that we need a patent system to encourage innovation, someone points out to them this means they need to show a *net* benefit, and that this has not been done? Don’t you think your criticism of patent attorneys for being silent about the patentability of music also applies to you and to any other advocate of IP who refuses to seriously engage on the very justification he implicitly appeals to?

August 8, 2006 PatNews:

!20060808 More bad art/physics law at the PTO/IPO – In re Nuijten

The Intellectual Property Owners (IPO) just filed an amicus brief to the Court of Appeals of the Federal Circuit (CAFC) in a case, In re Nuijten. Nuijten is an engineer working for Philips (the assignee) trying to patent a new type of watermarked signal. One of the claims is to the signal itself, which the PTO examiner and his colleagues, and then the PTO Board of Appeals, rejected, because signals are intangible manufactures, not physical, and therefore not patentable.

This is such total nonsense physics that everyone at the PTO associated with this decision should be fired immediately for such an idiotic betrayal of science. Anything that satisfies Maxwell’s Equations is physical. I am sick and tired of such blatant ignorance of physics at the PTO.

Which is what IPO nicely argues in its amicus brief to the CAFC. In a brief just posted to the IPO Web site (www.ipo.org), IPO argues first that manufactures don’t have to be tangible in the first place, so it doesn’t matter whether signals are physical or not. They then argue that even if the law required this, it is very very very very basic physics that signals are physical and thus tangible. I excerpt some of their arguments below. Their brief is a very nice read, …. except.

Except that everyone at IPO involved with writing this brief should be reduced to associate level for inept thinking. The brief was written by IPO President Marc Adler, IPO Amicus Brief Committee chair Richard Phillips, and two lawyers from Covington and Burling – Roderick McKelvie and Peter Swanson. Why should they all be demoted for ineptness?

While the PTO in its ignorance betrays science, these four lawyers in their ineptness betray art, which like it or not, is for the most part is patentable in all aspects.


Music is fundamentally one type of signal. At a minimum, there are the acoustical physics aspects of music signals, and more interestingly, there are the neurophysical aspects of music signals. Music is a music signal. If IPO truly believes what it wrote in the brief, then IPO fully supports the patenting of music (assuming one can describe music in accordance with 35 USC 112).

Flash News!!!! IPO fully supports the patenting of music.

IPO wisely cites Stephen Kunin’s great article on the patentability of signals, which I mentioned some time ago in PATNEWS. Yet like Stephen, IPO is silent on patenting MUSIC signals. Why this fear of discussing such an interesting concept – patenting music signals? For if music signals are patentable, this practice will greatly affect many of the clients of these lawyers. Are music signals – signals?

For example, some of the board of directors of IPO listed on the amicus brief are Q. Todd Dickinson of GE (which has an entertainment division), Bart Eppenauer of Microsoft (heavily involved with entertainment), Jack Haken of Philips (involved with entertainment) who is also the appellate lawyer in this case, and Richard Lutton of Apple Computer (which is trying to redefine the music marketplace).

Did it not occur to any of these highly paid lawyers to consider that for IPO to make this argument in this brief is for IPO to also agree that music is patentable, which would affect all of their businesses if the CAFC rules in favor of Nuitjen? I mean, many of these people get PATNEWS, and I have addressed this issue in the past – the growing patentability of music and movies after Lundgren (www.bustpatents.com/sec101/musicelr.pdf). Briefs such as IPO’s in this case just further reinforce my arguments and this new trend.

So why the silence from all of these lawyers? It makes no sense. Now I know that lawyers will say – you only argue the specific issues of the case (except if you are writing briefs for IBM), but when your arguments address such fundamental issues, you are obligated to write about the implications of your argument.

And the implication of the IPO argument is that music is patentable. Yet IPO is still too cowardly to even discuss such an implication at its meetings. Heck, I doubt IPO even has a copy of my book, Patenting Art and Entertainment (Nolo), at its headquarters.

Here are two questions. If you can’t answer them, you shouldn’t be practising IP law.

1) If signals are patentable, and music is a signal, then is music patentable as a useful article of manufacture?

IPO’s brief + the physics of music ====> YES?

2) If music is patentable as a useful article of manufacture, and useful articles are not copyrightable, then is music uncopyrightable?

IPO’s brief + the physics of music + copyright caselaw ====> YES?

It is unethical for patent and copyright lawyers to ignore the growing overlap, and growing clashes, of their two fields of law. It betrays both the progress of science and their clients’ interests.


Some excerpts from IPO’s brief:

[The PTO Board of Appeals] affirmed the rejection of the signal claims, concluding that signals per se are not patentable subject matter. Id at 7. In reaching this conclusion, the Board found that these claims are not directed to signals with physical properties, such as electrical or electromagnetic

signals. At a minimum, PTO Board activities should be suspended until it can be confirmed that ALL of the judges understand the basics of modern science. Some are too ignorant of science to be involved with any decisions involving science.

Electrical or electromagnetic signals are not physical? That is complete nonsense. Maxwell’s Equations are one of the most fundamental and beautiful physical equations in this history of mankind, and Maxwell’s Equations goven electromagnetic signals. Electromagnetic signals are not physical? Then go stick your head in a microwave oven, or your hand in a laser beam.

John Doll, you are a physicist – please take a bat and go around the PTO smacking anyone who doesn’t believe signals are physical. I am tired of some judges pretending that they understand science while making decisions involving science (which is why copyright caselaw involving 17 USC 102 mostly nonsense bullshirt). I am also tired of judges in copyright cases ignoring the basics of patent law.

In addition, the Board had found that the category of manufactures is limited to tangible articles. It then assumed that electrical signals per se are intangible energy and not tangible items.

“Intangible energy”? That is an infinitely nonsensical phrase. Hey buttheads on the PTO Board – ever hear of ….. Einstein, and his special theory of relativity, E = mc^2 and all that, which the PTO loves citing in its 101 arguments without realizing that what it means is that energy and matter, PHYSICAL matter, are the same thing. I want these Board members fired immediately, rehired, and then fired again.

IPO then starts attacking the various arguments of the Bored of Appeals. IPO first starts with a platitude it doesn’t fully believe:

As this case demonstrates, new advances in science and technology often blur once-clear boundaries, such as the line between tangible and intangible things.

Yes IPO, I agree, and one of the blurred boundaries that science and engineering are eliminating is between art and science, opening up all of the world of art to patenting, including music signals.

Now to the heart of IPO’s strong argument:

Something is tangible if it is “able to be perceived as materially existent”. Webster’s dictionary. In general, an electrical signal is a flow of electron that varies over time.

Hey IPO, electromagnetic waves are signals as well – photons are physical - don’t use the word “general” here. Also physical signals can be made of phonons, electron holes, spins, etc. IPO needs to learn some modern physics.

Electrons are physical particles that have mass, and they are both measureable and detectable. Their flow, which forms the electrical signal, is also measurable and detectable. Accordingly, an electrical signal, as a flow of electrons, meets the definition of tangible since it is able to be perceived as materially existent.

Sadly, IPO is silent on the Bored’s “intangible energy” argument, since it would have been a good opportunity to clarify the role of Special Relativity in 101 arguments – that energy and matter are the same thing. The board of directors of IPO really needs to have a physicist.

In the 21st century, PTO (and EPO) judges should not be making such stupid mistakes of physics. All members of the PTO Board of Appeals should be required to take CLE sources in the fundamentals of physics and mathematics.

And in the 21st century, IPO should not be engaged in such cowardly thinking where it argues that all signals are patentable, which should presumably include music signals. If you can’t think and make the big thought arguments, you shouldn’t be making the big bucks.

As a first step towards enlightenment, IPO should buy a copy of my book, Patenting Art and Entertainment, for all of its board of director members. So should all PATNEWS readers who already haven’t :-)

Greg Aharonian

Internet Patent News Service


Stephan Kinsella

Stephan Kinsella is an attorney in Houston, director of the Center for the Study of Innovative Freedom, and editor of Libertarian Papers.

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