Lincoln's Patent

One-hundred and seventy years ago today, the USPTO issued US Patent 6469 to Abraham Lincoln. He was the only president to ever have a US patent, the 6,469th issued by the USPTO.


Linoln's patent, which he wrote himself, covers a method of bouying boats through shallow water, using internal inflation devices. The invention was never built-I guess he was busy with other pursuits.


The first patent was issued in 1790, and signed by George Washington. Do a little math, and you will find that patents were issuing at a rate of just under one a month for the first sixty years. That rate is significantly less than today. In 2013, the USPTO issued 302,948 patents, over 25,000 a month.


Besides the bit of trivia regarding Lincoln, I think it is interesting to note how long the US patent system has been operating. The basis of which is in Article I, Section 8 of the Constitution. "The Congress shall have Power To... promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries..."


Check out Lincoln's patent. I hope you enjoyed the history lesson.







A Case for BitTorrent

I'm going to come right out and say it, BitTorrent is a tool of massive copyright infringement.

But so was the VCR, and the cassette recorder. Even the Kodak Brownie, the first popular consumer camera, was ridiculed for copyright infringement, as well as privacy concerns.

But the reason the above technologies survived, and flourished, was not due to their copyright infringing abilities. It was due to their usefulness within the law.

BitTorrent is extremely useful, and more so every day. It is a decentralized way to store and transmit large files. A user downloads a small seed file that identifies the target file. The user then runs an open source BitTorrent client, which searches across the Internet for other peers, other users operating the client and possessing the seed file. As peers are identified, the target file is copied and transferred to the user from each peer. But the whole target file is not transferred from any one user to another. The large file is broken up into tiny chunks, or bits. This way, a small portion of the file is transferred from each peer, until all the bits comprising the entire target file are downloaded by the user.

Upon first glance, this may seem like an overly complicated way to transfer files. How could this possibly be useful?

Here are two reasons. The first is that the traffic load is distributed across peers. Since the file is coming from multiple peers across the globe, it is only relying on a relatively small amount of data from each peer. This lessens the burden on each user's system and internet connection. Additionally, since the load is distributed, if one of the peers goes off line, or the internet connection is lost, those bits can come from other peers. Once the target file is downloaded, the user may become a peer for others to acquire the file.

This is what the Internet was designed to do. The original application of the Internet was a command and control system created by the Defense Advanced Research Projects Agency (DARPA) for the US Department of Defense. It was intended to be the controls for launching nuclear weapons, and a safe guard against nuclear attack. If one of the command centers was hit by a bomb, the others would maintain their connection to each other and the weapons.

This is how the internet works for most communication. Each transfer of data, in the form of a packet of bits, is sent through one of several routes in the network. The web page you are looking at now may have come through dozens of different routes to get to your browser, all originating from the data center in San Francisco where this site is hosted. The difference is that BitTorrent files are coming from multiple hosting sites, adding another dimension of reliability to the transmission.

The second reason BitTorrent is useful is because it delivers high quality content. When a user selects a seed file, the number of peers is often estimated. By selecting a seed file with a larger number of peers, a user can be more confident of the quality of the file. Peers are virtually anonymous. It is possible that some peers would share corrupted files, on accident or on purpose, but it is much less likely that a large number of peers would. If a user downloads a file through BitTorrent and discovers its corrupt or inferior, the likely reaction is to delete the file, not to share it with others. When there are a large number of peers seeding the same file, the user knows that multiple anonymous people have all downloaded and found that file useful. This is distributed anonymous quality control.

Technology is always ahead of the law, and plaintiffs have not consistently and successfully prosecuted copyright infringers using BitTorrent, but there are several examples out there. The predominant legal tactic is to gather IP addresses from peers seeding a copyright protected file, subpoena the Internet providers associated with the IP addresses for customer names, and then sue the individuals. Some defendants have successfully removed the cases on various grounds, but may of them settle out of court for a few thousand dollars.

I do not condone the use of BitTorrent for illegal purposes. Similarly, I do not condone the use of any other legal technology for illegal purposes. Don't speed in your car either.

But I do encourage you to check out BitTorrent, learn what it is about and use it for legal purposes. What are the available legal purposes? The transfer of large files by the copyright holder, or in the public domain. Click this link and this link for information about legal BitTorrent sites.





Negative Rights and Blocking Patents

In philosophy and legal theory, rights can be broken down into positive rights and negative rights. But since philosophers and jurists are involved, the distinction is muddled and the debate takes on more importance than the actual definition. In my mind, the distinction is clear. Positive rights oblige others to act, and negative rights oblige others not to act.


When an inventor is granted a patent, he is given a negative right. He now has the power to prevent others from doing certain things, specifically making, using, or selling his invention. If another decides to make and sell the protected invention, the inventor has the option of suing for infringement and getting an injunction to prevent the infringer from acting. Whether to exercise that right is up to the inventor.


An inventor with a patent does not have the right to make his own invention, only the right to prevent others from doing so. Yes, you read that right.


“Blocking patents” are a common occurrence, and demonstrate when an inventor is prevented from making his own invention. This is a situation where one invention (Invention B) is an improvement over an earlier invention (Invention A), and a separate inventor owns each invention. Invention B cannot be made without also making Invention A, thus Inventor A has a negative right preventing Inventor B from making his own Invention B.


But it works both ways. Inventor B also has a negative right preventing Inventor A from making Invention B. If Invention B’s improvement is so great that it makes Invention A irrelevant, the patents are blocking each other from making the optimal product. In an ideal world, the two inventors reach an agreement to cross-license the blocking patents, allowing each to make Invention B.


The example above highlights the importance of performing a prior art search before pursuing a patent. But it is also demonstrates how patent rights actually work. Patents don’t guarantee the right to produce an invention, but they do give the inventor the right to prevent others from doing so.







The Apache License, Version 2.0 and the Anti-Patent Treachery Clause

Apache software helped build the web. Beginning in the mid-nineties a decentralized group of programmers built a free and open source web server that anyone could download and use. They were not the first programmers to offer FOSS, but their product was, and still is, hugely successful, demonstrating the power of open source software. It is estimated that more than half of all websites use an Apache server.

As part of their effort, Apache created a software license, which spells out the terms and conditions of using their software, and basically what the people of the Apache Software Foundation consider optimal from a development and public policy point of view.

Any programmer may also use this license to designate the terms of using their software, whether it is related to Apache products or completely independent. All you need to do is insert the following text in the comments at the top of your source code.


Copyright [yyyy] [name of copyright owner]  

Licensed under the Apache License, Version 2.0 (the "License"); you may not use this file except in compliance with the License. You may obtain a copy of the License at

Unless required by applicable law or agreed to in writing, software distributed under the License is distributed on an "AS IS" BASIS, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, either express or implied. See the License for the specific language governing permissions and limitations under the License.


If you go to the link and read Section 3, you will see the anti-patent treachery clause. It is not called “patent treachery” in the text of the license, but it is sometimes referred as such by third parties, and it was probably the hook that got you to read this far.

The clause does two things. First, it licenses all patents related to the Apache-licensed software, owned by any contributor, to everyone. Second, it creates a disincentive for any contributor to sue for patent infringement over Apache-licensed software. If a contributor sues, he forfeits his patent licenses from other contributors spelled out in the first sentence of the clause.

What is the effect? I assume the intended effect is to limit software patent law infringement law suits. But I’m not sure that this is the case.
Basically, if a contributor sues for patent infringement, he will effectively be barred from using any Apache-licensed software, under threat of patent infringement from other contributors.

It gets confusing here. If a second contributor sues the first aggressor, will the second contributor also lose all patent licenses granted under the clause? (Notice that all “cross-claims and counterclaims” are included.) Also, what incentive will a plaintiff have in suing the first aggressor for patent infringement? Remember, the proposed plaintiff would be suing over software that he contributed with the intention of sharing it with the world, and is likely not interested in litigating.

I don’t think the clause will directly prevent any software patent litigation. The majority of plaintiffs are either non-practicing entities (trolls), or large corporations that produce proprietary software. The trolls will not be affected, as they don’t actually create software and thus do not use Apache-licensed code. The large corporations are sophisticated and wealthy enough to avoid the issue. They can develop or license commercial software that performs similarly to the Apache-licensed software.

The real impact of the clause is as an affirmation of open source culture. It notifies all who use the Apache-licensed code that software patents are an issue, which inhibit the development of open source platforms. When a programmer licenses his software under the Apache license, he is clearly standing in opposition to software patents.






Bare Bones Trademark Registration Guide

This is what you need to do to get the simplest form of trademark.

1.    Choose a mark,
2.    Use the mark in connection with an inter-state commercial transaction, and
3.    Pay $275 to the USPTO when filing an application.

It doesn’t need to be a name. It could be anything that distinguishes a product or service, including a word, phrase, logo, symbol, design, or even a composite of all of them. For the simplest trademark, a standard character word is used. This means the word or words may be spelled in any font.

You will need a unique word or combination of words, and not all words are equally valuable. Some words are generic, and don’t really identify the product. As a trademark applicant, you should strive to find a mark that will immediately inform a potential consumer about the origin of the product or service. This is called the distinctiveness of the mark.

The most distinctive name in my opinion is Kodak. Many people also site Xerox. These are excellent names because they are invented words that have no other meaning than identifying the associated company. Invented words are considered “fanciful” in trademark law and are the most protected.

The next highest level of distinctiveness is “arbitrary”. These marks contain a word that has nothing to do with the associated goods or services. The most prevalent example is Apple, used in the sale of computers.

“Suggestive” marks hint at the product being sold, but requires imagination, thought and perception to figure out the connection. An example of a suggestive mark is 7-Eleven, as the convenience stores provide services from 7 AM to 11 PM. Another example is Greyhound buses. Supposedly Greyhound offers transportation services similar to the speed of a racing dog.

“Descriptive” marks merely describe the goods or services associated. I have worked on dozens of trademark applications, and this is the most common issue. Entrepreneurs have trouble here because they want to choose a name that lets customers know what they are offering, but at the same time they are inadvertently weakening their potential trademark.

There are a couple ways to get descriptive marks registered for protection at the USPTO. One way is to establish secondary meaning. This basically means that the public has come to identify the mark with a particular company over time. IBM stands for International Business Machines, and merely describes the products that helped start the company, typewriters and adding machines. Over time, people began to identify the name solely with products created by IBM.

Finally, there are “generic” marks. The USPTO does not allow these. Generic means the mark is the common descriptive name of the product. You are not allowed to register a trademark for Bicycles, and try to prevent everyone else from using the mark in the sale of bicycles.


Inter-state Commerce
USPTO Trademark law is federal, and requires an inter-state transaction. There are also many state trademark laws, but federal trademarks are much more prevalent.

You cannot register a trademark that you have not used in commerce. Otherwise, wealthy companies would register marks for every word in the dictionary and prevent new companies from using the marks. There are some nuances to this rule, but the inter-state sale is most common.

You may apply for a mark before use, if you want to reserve the name for later, but you will need to actually use it before it becomes registered.


This may seem obvious, but you must apply for the mark at the USPTO. This includes a $275 fee for online filing for each Class, one of forty-five different categories of goods and services. The applicant must choose one or multiple classes, and also describe the goods or services more specifically within that class.

The application also requires a specimen, which is an image of the mark in use. A picture of a mark on a box, receipt, or web site is often sufficient.

Applications take several months to process for various reasons. The USPTO may issue office actions requiring amendments, or may issue rejections that must be overcome with arguments. Also, other interested parties may interfere with the application. Typically, if there are no issues with the application, you will have a mark within six months of filing.








A patent is not a lottery ticket, it is an insurance policy.

Media coverage regarding patents usually involves the sale of portfolios or the winning of infringement suits for several million or even billions of dollars. Yes, some patents are worth millions, but most of them are worth very little, and will never be used.


If one wants a patent, because they think it will make them rich, then they are sorely mistaken. A patent is just a piece of paper. Its value comes form the right it grants the owner, and how the inventor exercises those rights.


The purpose of a patent is to give an inventor the right to prevent others from making and selling the invention. The patent itself does not generate any income. A patent is basically useful in two situations. The first is when an inventor has developed a product and another copies it. The patent gives the inventor the right to sue the infringer, getting them to stop, getting damages, or both.


The second situation is when an inventor convinces another that the patent has market value, and the inventor assigns or licenses the right to make the invention to another.


Both of these scenarios require the inventor to achieve a certain level of market success. It is unlikely that another will infringe an invention if the invention is not proving successful, and it is also unlikely that another will pay a licensing fee or purchase the patent without a certain amount of proven marketability.


Inventors should ask themselves why they want a patent. It takes a long time, around three years, to get one issued. And even that is only a fifty-fifty proposition.


Success is determined not by owning a patent, but by developing, manufacturing, and marketing a product that is valuable to consumers. A great idea is worth very little without the abilities to make it a reality.


The patent is secondary. In the first situation, described above, the patent is something that the inventor usually hopes they never have to actually use. I like to think of them as insurance policies. They are an up front cost to deal with a potential situation in the future.














How long does a trademark last?

The short answer is forever.


Trademarks as well as service, collective, collective membership, and certification marks all last as long as the owner keeps using the mark, and keeps paying renewal fees.


When a mark is first registered, it will live for ten years from the registration date. A renewal fee and affidavit of use is needed to keep the mark alive. If the renewal is not submitted upon the tenth anniversary, the mark is declared dead, but may be revived within six months for a surcharge.


Marks are eligible for renewals every ten years, indefinitely.