Firstly, let me publicly thank you for your contributions. The last several days (maybe weeks by now) I have been spending whatever free time I have going over your material. Really excellent stuff!
Regarding your last paragraph quoted above: How true, how true. I have learned this from direct experience (but not expensive experience thankfully). Many vendors just change the name of the indicator to hide it's true identity. Clearly they are better at marketing than trading. And I suspect they trade solely on indicators, so they will not be successful in the long run.
Below is some commentary related to your question. It may or may not answer it in the way you hoped for. Please ask further questions if I missed the mark.
This above reference is a copyright as opposed to a patent. If it was a patent, it would already be expired and be in the public domain. I am not familiar with the indicator but with any copyrighted material, you are not allowed to copy it exactly. You can create material with the same functionality as long as it is not a direct copy. If it is a direct copy, you can work with it for personal use but you can’t sell it as that would create damages to the copyright holder.
Revisiting patents. There are lots of lousy patents out there. The examiners sometimes don’t know what they are reading but since they can’t find a direct piece of prior art, they award the patent. I have responded to office actions on some of my patents where it was clear the examiner didn't even know what was being claimed. There are many reasons for this but it doesn't matter as much as you think. This is because most people have the wrong idea about what a patent really is. One of the most important aspects of a patent is that is gives you the right to use your own invention. A producer of some widget will seek a patent on the widget so that they can go to market and recoup their investment by selling the widget. They also have protection against gross infringement should they decide to seek it. Prosecuting patents is complicated and expensive (like $10M per side for a fairly basic case). Recouping legal costs in a patent dispute is not obvious. I have been involved in these situations. In fact, sometimes, a patent holder may be forced to protect the patent because they have licensed it to several third parties who wouldn't be paying the licensing fees unless the holder was actually enforcing the claims. This is important: A patent is about the claims – not the specification. So you may look at a patent and think it covers something but you would likely be wrong. You have to look at the independent claims to determine what the patent actually protects. In the application process of a patent, you can get into a situation (almost always you will) where the claims are progressively narrowed until the claims are allowed. This makes the patent pretty useless because narrow claims are easy to work around. In the case of an indicator, someone might make a claim for the indicator using some very specific steps. Should you produce the indicator using different steps, you are not infringing on the patent even though the functionality is similar or the same.
Now, in the case of a lousy patent, there really isn't a problem because if it is improper, it will fail on the first challenge - either in court or through a challenge at the patent office. So people can (and will) file crap and get it. Fine. They are spending money, time and resources to do that. But it's a problem for them because if it's crap, it will be challenged and they will lose it and all their efforts and expenses will be for nothing. Some companies will even send prior art to the patent office to inform the examiners before the patent is issued (this is often done during the period between allowance and issuance - which is why that period of time exits).
OK, there is a lot more to be said but this is getting pretty long. Let’s cut to the chase – prosecution.
In order for someone to prosecute, they must be able to show damages. This also implies discoverability. Some companies won’t file software patents that are algorithms because of discoverability. If you can’t prove (discover) that someone who is creating damages against you is using your algorithm, then you won’t prosecute. You could get a court order to examine source code but a lot of other stuff happens before anyone gets to that stage. So you can engineer an indicator with the same functionality and use it personally without fear of prosecution. The reason is that you are creating an original work, you are not creating damages by selling someone else’s work and furthermore, discoverability is still a problem for the party wanting to prosecute (by this I mean that if you use it just personally, it is never discoverable). So the only people who are at risk of a problem are those vendors who steal someone’s work and then sells it thereby creating damages to the original author (unless that author releases it into the public domain without restriction).
And here is a common mistake for you to think about. Who decides who is infringing on a patent? Not you, your friends or some person on a forum. Infringement is determined only in a court of law. I have been involved in projects where engineers told me they thought they couldn't develop such-and-such because someone has a patent. I tell them to keep working because they are not qualified to make that statement. In fact, in every case, when I ask them what claim they are referring to, they have no idea. Even in the case of infringement, there are business solutions through fair and equitable licensing or through creative business deals.
So be creative and not fearful when innovating. And keep innovating!
(Sorry for the long post. I could write pages on this stuff because there is so much of it…)
Last edited by DoctorGM; March 19th, 2013 at 09:48 PM.
Reason: Corrected spelling and removed redundant phrase.
The following 3 users say Thank You to DoctorGM for this post:
I going to jump in with an additional short comment about patents. This is something I wanted to say in my previous post.
It is this: patents are published for a reason. That reason is to teach. The purpose behind a country publishing a patent is so that others (commonly referred to one who is skilled in the art) can replicate and then build on the work. This is how innovation happens and is beneficial for the well-being and progress of the country. The deal you get for teaching the world is that you have rights and protection to sell your invention for a limited time (17-20 years). So it is expected that others will copy patented work and either improve upon it or discover other methods (which they can patent themselves).
So go ahead and work with other people's ideas. Build on them. Teach. Just don't take someone else's work verbatim and sell it as your own. Besides being of dubious ethics, it's a violation of copyright.
The following user says Thank You to DoctorGM for this post:
I can understand the relationship between publication of research and teaching but not patents and teaching.
Patents are created in order to protect the investment made by those that registered the patent. This was probably the intention of those that invented the copyright laws. But in some domains this seems to do more harm than anything, especially in the software business where patents became legal weapons specially designed for making money and choking creativity.
I simply wonder if copyright is not a rest of an industrial era that seems to be ending. Maybe in favor of new models like open business models (open source, creative commons, etc…).
Here is an interesting video of Larry Lessig: Laws that choke creativity | Video on TED.com
-- The rest is silence
Last edited by wwwingman; March 20th, 2013 at 12:32 PM.
Thanks Dr. GM,
I created some software a while ago that I got the inspiration from Al Brooks ,actually people in his group. So I made the indicator and found out that even more people use the same concept and infact a school was already teaching this to it's students. As the past 3-4 years have now past, I was thinking about patenting it and trying to make it secure. However, as you said as soon as you patent it you basically give away the code for others to use and grow. Copyright seems pretty much useless as well. I like that idea, but there are so many out there that will basically just undercut you for nothing. I have a hard time with that as I have countless hours in development as well as learn and adapting to new programming languages that someone else would just grab, steal, and sell which has stopped me from posting a lot on futures.io (formerly BMT), but that's another issue.
We have a very corrupt society where corporations that can buy the politicians will make it illegal for you the little guy to do anything like what you propose, not to mention write a crazy complex tax code so they can pay 0%, again another issue. However, looking at the tech companies out there like Google and Apple and seeing all kinds of phones, tablets, and mp3 players out there all with the the same basic stuff yet totally different branding. It makes me think that patents have to be pretty easy to go around or those big corporations are not protecting themselves. Anyway just my 2 cents
I just did a search and could not find where you've shared any indicator or tool on futures.io (formerly BMT). So I am not sure what you are referring to about not posting on futures.io (formerly BMT) since you've never shared anything?
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Myth 1: Nobody would invent anything if they couldnít patent it.
Fact: People invent for a lot of reasons. Some people invent because they can. In this, they share a strong drive with artists. But focusing on the commercial innovation, nobody invents because they can patent the innovation. They invent because they can make money on it.
In practically all industries, this money is made from selling products and services relating to or incorporating the innovation. Patents do not sell products and are, for the most part, granted long after the related product is so old it is obsolete and no longer generating money.
If companies did not innovate, they would lose the ability to sell products, and therefore lose the ability to make money. This is much more relevant than the ability to patent something.
Myth 2: Patents drive innovation.
Fact: Patents do not drive innovation, they ban innovation. A patent is, by its very definition, something that bans the entire world except the patent holder from building and improving on a particular innovative step. If patents are driving innovation, which is claimed, then this outright ban must be shown to have side effects that somehow drive innovation to a larger extent than the extent to which the direct ban destroys it. No such side effects have turned out to exist.
To the contrary, patents are being used by incumbent industries to shut down disruptive competition. Rather than competing with better products and services, the current kings-of-the-hill are finding it more cost efficient competing with more expensive lawyers. This does neither drive innovation nor a healthy competitive market.
Myth 3: Nobody would invest in startups that donít have patents.
Fact: The seasoned startup investors absolutely hate patents and the entire patent system. They compare it to a cancer in the economy. As soon as a company has any money at all, it will be sued for patent infringement on pure speculation. These purely speculative patent threats have been estimated to burn about 10% of all investment capital today.
Myth 4: Patents are good and useful as a measure of innovation.
Fact: This is the broken window fallacy. To measure innovation in terms of how many innovative steps have been stopped by legal means for the duration of a patent ó usually 20 years ó is just not dysfunctional, it deserves a whole array of psychological disorder diagnoses.
Just because you can get a number on something doesnít mean it can be used as a measure. Particularly not so if the number is a quantitative measure of bans on innovation, and you are trying to use it as a measure for innovation potential.
Myth 5: The patent system derailed just recently with the advent of the patent troll. Patents can be brought back on track if the troll problem is dealt with.
Fact: Patents have always been a brake on innovation. Lately, the pace of ideas have picked up, and so the problem has become more obvious ó but it has always been there. The Industrial Revolution was delayed 30 years because of Wattís patent on the steam engine (and people who improved it were even put in jail). The flight industry was delayed 25 years because of patent wars. Broadcast radio was delayed by ten years twice ó first when it arrived in the 1920s, and a second time when FM radio arrived.
Myth 6: Patents protect the small, poor inventor against exploitation by ruthless big corporations.
Fact: A patent is only worth as much as you can spend on a lawsuit defending it. A small, poor inventor canít even afford the application cost of Ä50,000 (average, including legal advice) for a European patent. That doesnít even grant the patent, itís just the application. Then, they will have to defend the patent in lawsuits against huge corporations, where one single patent lawsuit easily can (and typically does) run into millions of dollars in costs for each side. Itís plainly a joke that a small player can play in the patent arena, and it only offers protection for big players against small entrepreneurs.
Small and medium-sized businesses are increasingly shying away from patents, and politicians tend to see this as a problem, rather than considering the possibility that entrepreneurs have understood something that the politicians havenít.
Myth 7: Patents disclose innovations Ė the alternative would be trade secrets.
Fact: This is wrong on both accounts. First, the trade secrets and critical know-how today lie in the manufacturing process, and very rarely in the finished product, which can be patented. Second, have you ever read a patent? Its language is so convoluted that it is absolutely impossible to comprehend for a normal engineer skilled in the applicable domain. This is also what has led us to at least ten overlapping patents on common things like network plugs. Third, trade secrets are not bad. It is part of normal healthy competition to try to gain the upper hand over your competitor (and is something that the government should not interfere with).
Myth 8: Patents are good for the economy ó just look at all the licensing going on.
Fact: The entire patent system is draining resources from all corporations, if nothing else because it is a balance of terror. You need a patent portfolio for yourself in order to avoid patent lawsuits from others: you need the capability to countersue to avoid the lawsuits in the first place. Many corporations have a stated policy of never using patents offensively. The whole system has become a quagmire that sucks resources out of research and development.
When an entrepreneur chooses to pay a patent license, it has very little to do whether the patent has merit or not. Rather, it is a cynical calculation of whether it is more economical to just cave in to the demands and pay the license, or more economical to go to court and challenge the patent and claim as such. The court option is very rarely the one with the most business sense. Therefore, the system has turned into law-backed extortion. On the other side of the scale, politicians see all the licenses being paid and take this as a sign that the patent system works, when it is a result of extortion against the entrepreneurs that drive our economy.
The only group that consistently gains from the patent system are the patent lawyers. With the exception of one industry, the patent system is a net loss to every single industry.
The one exception is the pharma industry, as they use the monopoly deadweight created by the patent system to tax the public for their own gains. (In Europe, 83% of pharma revenue is tax money, on average.)
Myth 9: Patents canít be scrapped without being replaced with something else that encourages innovation.
Fact: Patents harm the economy and innovation. It is perfectly possible to remove a strong brake on innovation without needing to insert another brake of a different color. If somebody is banging you repeatedly over the head with a hammer, you have the right to ask them to just stop, without having to simultaneously give them an alternative tool to hit you with.
Myth 10: All practicalities aside, patents are morally justified. You should own what you create.
Fact: It is morally just that you can combine your own pieces of property into new kinds of property, using ideas that you get by yourself. Patents allow somebody else to ban exactly this, just because they thought of the idea independently earlier and managed to fill out some particular forms. This is independent of whether you have even heard of the patent holder. Patents are, therefore, a strong limitation on competition rights and property rights. If you have the right to own what you create, then patents need to go out the window.