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Bryar Takes On Patents And Their Friends
Jack Bryar's column over at Andover News comes out swinging; not at software patent holders themselves, but at the convoluted, corruptable machine of the USPTO. Bryar points out, among other things, that "the time available to Patent Office employees to process, review and approve a patent application -- an application which may run to hundreds of pages and be highly technical in nature -- has been reduced to less than eight man-hours." (Raise your hand if you think that's adequate.) Interesting, and mostly unflattering, information, too, about Patent Office head Todd Dickenson, and the changes which he's ushered in, or ignored.
I saw a video about something similar to this today in an econ. class. Basically, granting patents supa-quick like is neccesary to the health of the economy...it allows companys to inovate and recieve credit for said inovation at a pace that desperatly tries to keep up with biotech, software, and other hi-tech industries. Once the Patent Office slows down and starts actually READING the patents they issue, businesses don't have quite the same incentive to file them in the first place. If a business can't get an answer/turnaround quickly in the modern world, they'll just drop it...Now, I'm not saying this is RIGHT, but it's how the system works. Why not just increase the size of the patent office to keep pace? require at least a full week of coverage for all worthy patents (ie: those that are more than a single page, or do anything more complex than exercising a cat )?
Eight man-hours per patent? I understand patents can be very technical and involved compared to a simple trademark. The trademark process takes from 9 months (min) to 14 months (if there are no revisions). I would guess the USPTO takes LESS than 8 hours per trademark, so the delays are unwarranted for such cursory review. As a filer, you lose with the delays and as the public you lose by the rubberstamp mentality that ultimately lets trivial ideas to become patents.
Slashdot == new info for patent reviewers . . .
Maybe the Open Source community, with its highly experienced, capable, and authoritative body of professionals,
The free software community does indeed include a hell of a lot of sharp people -- but none of them waste any time on Slashdot. The fact that Slashbots idolize people like Stallman, Gailly, Torvalds, et al. does not mean that Slashbots are equivalent to Stallman, Gailly, Torvalds, et al.
On the very, very rare occasions when anything intelligent is said on Slashdot, it gets drowned out by noise.
(Why am I still here, you ask? Two reasons! (a) Though I consider myself a lot sharper than the average Slashbot, I certainly don't pretend to be in the same leage as the big names above; (b) The vast quantity, subnormal mentality, and infinite vanity of Slashbots makes Slashdot a paradise for trolls
Sure, the patent system is imperfect. It allows people to claim exclusive right to business models, and even the idea of transaction over the web (see the references to Open Market in the article). It is run by incompetents using silly management techniques, subject to graft and outside influence. Who gives a shit?
/.), but it isn't winning hearts or minds.
I've said it before, and I'll say it again: until the programmers, engineers, scientists, etc. get involved in the process, they will never see their dreams of open idea bazarres. Forget it. Writing widely circulated essays may get you press (at least on
The public finds the debate about intellectual property about as interesting as rotting fish. Even your congressvarmint, whom allegedly is reading all your letters about the eeeevil Bezos, doesn't give a crap. He wants to know who's going to fund his next campaign.
This is your meal-ticket, if you get off your duff, go outside, and do something with it.
Bezos can spend millions on patent laws, lobbying for and defending his interests. You, hapless geek, are lucky to have time and money to afford a $.33 stamp. Who is going to win this debate?
Open Market et al. can spend time and money schmoozing the press, presenting their side in suits, ties, and posh corporate offices. You probably don't have a tie, and there's no story in an irate geek unless he's shot someone. Who is going to win the public?
Not you, little hacker minion.
I predict two things, not necessarily in any order. 1) Congress will pass a law/reform that looks like it "levels the playing field," "helps the children," "protects our interests" and so on. Just like all other reforms, this will not affect what patents are taken out. They will make appearances and no more.
2) I predict that the major consequence of this action will be the ultimate downfall of patents as an enforceable commodity. Already, squashing pirates is too expensive. The system will punish a few big hackers/pirates/patent infringers to make a splash in the press (ala their past record) and convince the public (and the shareholders) that something is going on. In reality, this will just make those infringing the patents/copyrights more circumspect. Eventually, a massive gray market will be born, with people trafficking in ideas.
The lawyers, politicos, and shareholders will profit. You, little hacker minion, will not.
Sooner or later, no one will give infringing patents a second thought. Until then, be careful that you don't find yourself among those carried into the kangaroo courts.
We already have this in place. It's known as obtaining a license on an existing patent. This is the whole reason that patents exist: to send profits to the holder, through licenses and exclusive use.
If an idea is bad, no one applies for a license. The people who took out the patent lose court costs and application fees. The idea is thus considered a failure. This system already exists.
And, if using 1-click is as good an idea as Amazon thinks (and others, obviously, since they value it enough to scream at Bezos about it), people will pay for use of the idea.
Your solution is already in place. It's the reason so many are upset.
Wow, dude. What rapier like sarcasm. I'll bet you're lots of fun at parties, too.
Since over 90% of all patents are approved, this must tell us something about you.
Why don't they count lines of code. No, wait, they aren't programmers. How do you objectively quantify anybody's work?
In a suprising turn of events today USPTO head Todd Dickinson was awarded 2 new patents.
The first, on 'Stupid Patent Use' should bring him a tidy sum considering current patent law. Todd is expected to file suit against Amazon and others by weeks end.
The second is on 'Granting Moronic Patents'. Todd has already filed against the USPTO in this instance and he is expected to win without much of a fight.
Last, but not least, Todd has been sued by one Slashdot Anonymous Coward after said A.C. received a patent on 'How To Really Fsck Up the USPTO'. Sources were unable to determine Todd's reaction to being sued, but strategists suggest he may countersue using his 'Stupid Patent Use' patent as a defense.
More to follow as news breaks. ThankYou.
And ya'll think this is a joke right??
Moderators, this is what is known as a troll. Hot grits and Natalie Portman references do not make a troll. The hallmark of a good troll is a lot of "You just don't get it" responses.
| Why don't they count lines of code. No, wait, | they aren't programmers. How do you objectively | quantify anybody's work? While 100% objectivity is impossible, a first-order approximation is by having truly qualified people evaluate applications solely by merit, not time constraints. Time-based evaluations are as useful as multiple-choice final exams. What more-often-than-not passes for a software patent is reprehensible, and I question the qualifications of those evaluating SW issues. -AC
Interesting ... I built an analogue calculator from op-amps recently. How do you plan to get around signal degradation? My calculator was only going to three significant figures, and even then the difference was noticable (usually about +/- 2 in the least significant digit) This is, of course, one of the main reasons why analogue comps never came into widespread use.
His ideas do not prevent the very thing wrong with his patents... First shorting the time a patent is held does nothing to prevent a bad patent, and may even encourage more bad patents because its less controversial (businesses like Amazon do not have to worry about bad publicity because they will say its only for a short period of time)... Using Amazon as an example, how long has it been since they recieved their patent and have used their patent, was it over 3 years? No, so how does that prevent companies like Amazon from doing this...
The best idea for patent reform, is to only except applicants whom publish public educational information about what they are exactly patenting, as it stands today most patents are written in a cryptic manner that both laywers and engineers would have a lot of effort to fully understand. If its worth patenting, its worth educating others of what exactly you are patenting. This would in effect reduce the amount of patent applicants (better then shortening the time period, 3 to 5 years is still a lot of damage in the technology world by a bad patent), and could be used to turn away patent applicants until they can better describe what they are patenting. This will give the patent office more time to do research to see if there are others in the field developing the same thing, more time for prior art to be found, or if the idea is not obvious enough. Another way to do this is to also require a prototype or similation of what the patent is meant for, and updates to its status. So that while people have ideas, they are not just idea/IP squating. This is more or less where Bezos plan of having a lower amount of time can come in (obviously it does not apply to Bezos bussiness and this is where Bezo would be afraid of). But I do not think Bezos plan is that good since it does not acount for many things. RCA did not invent the television, it was originally created by an individual who patented his work, this happened during the war and the individual could not come after RCA for patent infringement and by the time the war was over lost his patent and lost any money he was owed. Obviously patents will have varying amounts of time allowed but shrinking them might not be good thing, and should not be necesary IF the patent system actually worked. Shorting the amount of time allowed is like a small solution (like increasing the amount prisons as oposed to reducing crime). The other aspect of this is that, patent holders should not be allowed to assign their patent to one companies interest. Remember the original reason patents were created was to protect the intelectual, not to be used for companies to squabble over who owns what ideas. So somehow an intelectual must provide a general priced license for use of his patented idea, obviously if the guy who owns the patent works for you he has an edge and better knowledge and will have contacts with other companies and know how his patent being used, this could be a problem too, but it may not be much of a problem as long as lawyers don't have to jump out of the wood work like ninjas and attack your business for patent infringement. LN
Thalia: I looked at 35 USC 103 and I have to disagree with you. Also Bruce Latham may have been head ofthe USPTO prior to Mr Dickinson, BUT Mr Dickinson was in charge of the Patent office during that period and HE owns the mess that has resulted. Also -- Dickinson's old job is still VACANT, so there's no one to clean up since the boss moved upstairs. It would also be cool to mention your position at the USPTO. -- would have been nice. OH WELL.... J Bryar
You may have been an examiner (although you don't seem smart enough) but those numbers are quite a bit lower than the software examination quota averages out to. GS-11 would get more than 20 hours per filing. So why the BS?
Yes, there are many good, challenging jobs available there. Thank you.
If the techno-elite only take high-paying corporate jobs, then the working stiffs in the patent office will be techno-proles. It is an unfortunate, but tautological, fact of life. If you REALLY want to affect the patent system, there is only one link to follow: http://www.uspto.gov/web/offices/ac/ahrpa/ohr/jobs /jobs.htm
This effects you because, in the course of a normal day, you may infringe on dozens of patents which never should have been granted in the first place -- and not even know that you are doing it! Some day your ass may be on the line, and years of your work may suddenly be invalidated by the threat of a lawsuit that you never saw coming. Remember LZW?
The complete article is at:
? 533
http://www.andovernews.com/cgi-bin/news_column.pl
Why doesn't this story carry the article link rather than a link to the top of "Andover News"? That isn't the normal approach for articles at Yahoo, NYTimes, etc.
Surf on over to www.tinaja.com and check out engineer Don Lancaster's articles on patent avoidance. On his page at http://www.tinaja.com/patnt01.html, he says: "For most individuals and small scale startups, patents are virtually certain to result in a net loss of time, energy, money, and sanity. One reason for this is the outrageously wrong urban lore involving patents and patenting. A second involves the outright scams which inevitably surround "inventions" and "inventing". A third is that the economic breakeven needed to recover patent costs is something between $12,000,000.00 and $40,000,000 in gross sales. It is ludicrously absurd to try and patent a million dollar idea." It looks like he has a whole book on how to avoid patents, see "The Case Against Patents" (http://www.tinaja.com/glib/casagpat.pdf). This seems to be a collection of patent horror stories and info on how to bust someone else's patents.
That said, of course you are also right that the patent system is equally screwed. The problem would be improved by work on either end, corporate abuses or patent insanities. I sincerely hope people don't decide to just push for patent reform and let corporations go on, answerable to no law, entities vastly overwhelming the individuals (even those that make up the corporation). On the other hand, I certainly hope nobody guns for the corporations and ignores the patent office!
They need some sort of objective metric, after all.
How about using the person's height? It's about as good a benchmark for evaluating their work...
Ooh, a sarcasm detector. Oh, that's a real useful invention.
Sorry if I'm horning in here, but If I remember my op amp theory right, noise buildup has a lot to do with good impedance matching, even where FET devices are involved. Noise current density is the term I seem to recall (it's been YEARS!) .02.
Current-differencing amplifiers, tweaked and biased properly, null out a lot of that noise, IIRC. High quality (film) resistors , tantalum caps for bypassing the chip power leads, careful choice of freq response of your signal-carrying caps (polyester or mylar - NEVER ceramic or electrolytic!) and good quality wire and solder, if that's what you're using for interconnects, can help too.
Just my
Brak: What's THAT?
Thundercleese: A light switch.. of TOTAL DEVASTATION!
Actually, save yourself the stamp and just call. Every representative except Senators likely answer their own phones. The benefit over a letter is that the call becomes Q&A rather than just a rant, and you're guaranteed a captive audience. Just make sure you know the issue in some depth.
I once called my rep to ask him to support a bill to add slot machines to the local racetrack, only to find that he authored the damn bill. Still, he liked hearing that people supported his bill, and he told me so once he'd stopped laughing.
It's interesting .. the media really helped take the message of free software and open source to the masses (in a suitably diluted, palatable form); now they're going after the Patents Office.
This is good news ... having journalists crawling all over you is the next worst thing to hordes of enraged lawyers smelling blood.
--
So the key is really to lower the impedance in the circuit. Best way I can figure is to use silver encased in something that prevents it from coming in contact with the atmosphere. Less important (but still a major issue) is to make sure you don't switch metal types. But there's problems with that (as you're no doubt aware).. Anyway, that's only if you want to stick with circuits that need to stay near room temperature.. you can throw that requirement in the trash if you can lower your circuit's temperature to below 300 degrees. I already have word from a few aerospace gearheads I know that think that using a pneumatic drill to get the required pressure to liquify air would work perfectly for this. We can even fit it inside a conventional computer case with alittle bit of engineering muscle. Of course, then you have the problem of temperature differences.. agh. Anyway, it's possible, but right now it isn't plausible. If I had about 5 million dollars I know exactly who I'd hire to build it though. ;)
After that, signal degredation becomes a non-issue (no resistance, muwhahaha!) and your op amps operate pretty damn close to their theoretical limits.
I think the bigger benefit will be in making the 'core' of the processor asyncronous. I think something alittle like transmeta's idea for code morphing combined with an async architecture would yield a helluva improvement.
But of course, it's all talk and no circuits.. and I'm atleast 2 years away from even being able to tell you how I'd accomplish this. But, the idea is pretty damn cool - if you have a completely analog core, massive massive massive parallelism becomes possible. I was discussing with a friend of mine how one might go about making the 'state' of the core available to any I/O subsystem in the entire system and we arrived at the conclusion that it would take fiber optics (and courtesy of those nice little lasers recently invented that operate in the fem??? second range) to move that kind of information around inside the case. Aggggghhh.
Great ideas.. but no practical plan to get to them yet. That's what I'm working on.. :/ You can see why I'm going slowly insane.
We're discussing this like a couple of lawyers would enthusiastically discuss their latest injunctions over a cup of hot joe in the morning. I'm not a lawyer.. infact I hate the law and try to avoid it whenever possible. My hobby/job/most-enjoyable-recreational-activity is to put servers together, network them, and then make them do nifty stuff for me. The fact that somebody patented technology for using wormholes or one-click shopping is completely irrelevant to me. Let the lawyers go bash it out - but leave me alone!
Please explain to me why we're getting so worked up about it. Open Source / Free Software does NOT need patents. We design a program/device and release it to the public. If somebody goes off and patents it after that point, we just point to our reference model and say 2 magic words: "prior art", and the problem disappears. Is it also not true that we as a community in general work around patented stupidities on a daily basis without much ado?
Patents are dead and useless... who cares if Amazon patents the one-click shopping model? I'll just use java-script to create a hover-over-this-button shopping setup. Somebody patents the knife and fork? I'll use chopsticks then. Somebody patents the CPU? I'll grab my soldering gun and make an analog computer out of op amps and transistors with a level of parallelism unknown previous to this. The point is that we can move so fast and so far forward that by the time they can say a program this community created is in violation of patent X we've already likely devised a completely new system that makes that system antiquidated!
Stop worrying about the world of patents and just hack code - eventually they won't have any money left because they'll have spent it all purchasing and defending antiquidated patents. Let the system die of it's own excesses.
You can use this script instead.
----
Stop worrying about the risks of nuclear power and start worrying about the risks of not using nuclear power.
There's just one big problem with that: way the f*** too much prior art
Veteran, Bermuda Triangle Expeditionary Force, 1992-1951
Mark me down for off-topic if you like, but there are already too many people who post without reading up on the issue at hand...
I can see the fnords!
God forbid their managers should have to evaluate their work and use judgement.
Bite the hand.
Quite the opposite, it generally takes a year for mine to get looked at, then 90% are returned with office actions. Which typically are patents with the same relevant keywords, and no similarity. Each patent has to be reviewed by the applicant and countered. The patent is then resubmitted for further review. If there is a rush to process patents, it's in favor of rejection. Do a couple, you'll see... heh!
After almost a year of being owned by Andover, Slashdot finally links to a story on Andover News, one of the most underrated tech news sites on the web. I've read fascinating articles (and some duds along the way, too, of course) there for the last several years, yet few (if any) of them have been linked here. Granted, there's the apprehension associated with giving the appearance of being "taken over by Andover" or "pandering to your own ad sales department" with putting too many links up, but really -- most of the columns written by Andover's "three Bs" (Bryar, Bresnick, and Blankenhorn) are substantially better than what usually runs in the "Features" section here otherwise :) Yet they typically get seen by a much, much smaller audience....
In a more "on-topic" light, I'm glad that Bryar had the guts to point out that the number one thing wrong with the patent system today is that the inmates have effectively taken over the asylum; it makes you long for the days when the nation's entire body of patent examiners were three members of the Cabinet who met a couple times a year. If I were to propose a fix for what's broken with the patent system, it would go something like: (1) Only legitimate innovation is patentable. Patent inspectors have to either deny a patent, or produce (and attach to the patent) a written description of why the patent is valid. and (2) Patents are valid for exactly TWO product lifecycles within a particular industry. Thus, software patents might last three years, while the term for pharmaceutical patents might be extended out to seventy. Yes, I know this second part is basically what Jeff Bezos said in his reply to Tim O'Reilly -- he was right. You can't abolish software patents entirely, there really is legitimate innovation (new techniques in wavelet compression, anyone?) in software that is and should remain patentable.
This is my opinion and my opinion only. Incidentally, IANAL.
MOO;IANAL.
There used to be a picture linked here.
How about using the system against itself? :)
Let's patent the business method "Patent something obvious and/or ridiculous and sue anyone who dares doing the same thing" (we'll probably need to formulate it in a little less obvious way or it'll be rejected
Then, we'll wait for a company like Amazon to sue someone over a ridiculous patent and sue them. Since "There is no defense based on the notion that a so-called patent is absurd or covers an obvious activity or business practice," how could Amazon defend its case?
If the defendant successfully invalidates our patent, it should be a precedent for invaliding their owns patents.
Either way, we win :)
Just my 0.02 Euro
I was a patent examiner, and hated it. Yeah it is great to see the new tech that is in dev, but there s no time to savor anything. I should mention that the amount of time that you have to work on your applications goes down as you go up in grade and get promoted. When I was a GS7 I had about 16 hours per application, and when I got promoted to GS9 I had about 12 to 14. I know that some people there were happy about remaining a particular grade as that was all they could handle.
The USPTO is one of the few goverment agencies that has quotas, that are that strict. They are also one of the few that actually make a profit, like the post office. Your taxes do not pay for a patent examiners income, it is payed through the patent application fees and patent maintenance fees. It can cost one thousands to get a patent.
I personally think that the only solution is to privitize the USPTO and make it gov regulated. One of the current problems they have is that they do not have enough examiners and Billy Clinton boy decidede that he would take money from teh USPTO to help balance the budget. Several millions of dollars that could have gone back into the USPTO to better train some of there examiners.
One last thing. Some of the examiners do a search if they find something great if they do not they allow it and figure that they can get soreted out in court. It is a screwed up system that desperately needs repair.
send flames > /dev/null
Only 'flamers' flame!
This is to be expected. The initial reaction of the market to VA's IPO could only have been described as (with apologies to Greenspan) irrational exuberance. The only reason they had such a huge first day run-up was because the market thinks Linux is nifty. After it starts to occur to people that in a lot of ways, VA looks suspicously like any other OEM, they'll start to wonder why they threw all that money at it in the first place.
Try here http://www.patents.ibm.com/ibm.html This is the IBM intellectual property network
-Master Switch, one more element in the machine
No argument here that the US Patent Office is broken and needs to be fixed. The real problem is the companies that are taking unfair advantage of the broken patent system, and then have the gall to try to deflect attention from them by saying "the system is broke, don't blame us".
Just more newspeak BS from the bandits of internet and technology.
Steve's Computer Service, Hobbs, NM
The problem is not that the USPTO (or any patent organization) gives too little time to review software patents. The problem is the choice by the USPTO to allow software patents in the first place.
Bruce Lehman.
Lehman was the USPTO head at the time, took some heat for the decision, and even held public hearings (one on each US coast) to 'discuss' whether software patents should be allowed.
What a sham.
By the time I arrived to present at the west coast hearing (one day affair), it was clear that Lehman had already made his decision to allow them (even though he supposedly was there to hear both sides of the issue). What a considerate and professional fella.
Oh, he and his fellow lawyers.
There were no non-lawyers on the panel. The audience was roughly half lawyers (left hand side of the room) and software professional (right hand side of the room). That was about the break down of the audience.
The lawyers smelled deep pockets of money (Lehman included), career mother lode as it were.
The software professionals wanted the freedom to write and think unfettered and unencumbered by software patents (and any system of governmentally institutionalized artificial monopoly). Software is about writing and thinking. If you can't patent writing (that's what copyright is for) and you certainly shouldn't be able to patent thinking (right? though that's what software patents essentially do!), then you certainly shouldn't be able to patent software.
Nevertheless, Lehman decided in favor of the software industry subsidizing the legal profession involuntarily through software patents.
I remember some of the convoluted and conflicting remarks Lehman made while I was waiting to present (the USPTO in their consummate professionalism and organizational prowess had forgotten to schedule my presentation, so I went last). At one point Lehman suggested that the USPTO would not be weakening the software industry by taking the best and the brightest but only those from about the 90th (if I recall correctly) percentile. Therefore, according to him, the intellectual cost to the software industry would be negligible.
No kidding! Why would anyone with half a creative iota of software design work for the USPTO?
On the other hand, Lehman claimed that the USPTO would certainly understand what to patent and what not to patent as unique. However, when queried about how to check patent validity, Lehman would have no answer (unsolvable, unautomatable problem).
Everything about software patents was and is a catch-22.
The (perhaps ill-conceived) notion of patents was to provide a method for an inventor to maintain a property of his idea until finding a means to produce the idea for profit. Monopolies are illegal, but patents were supposed to provide incentive enough for innovation to outweigh the evils inherent in monopolies (that was the idea anyway).
Where's the difficulty in manufacturing (copying) software?
There is no difficulty. Software does not even approach the model where inventors don't have the means to produce their product ideas (remember, patents were invented in the 18th century, before the industrial revolution, so manufacturing capability was scarce). If you can copy a diskette (or download off the internet), you know how to manufacture software on your computer.
So, just the idea of software patents is wrong.
Lehman was told so. His lawyer panel was told so. His half lawyer (cheerleaders) were told so. He decide to bolster his legal industry's "customer base" (think: tax base) anyhow. Lehman was either phenomenally unclear on the concept (which I prefer to think) or very keen on expanding his profession's market base (which the cynic in me suspects was the case even if Lehman wasn't bright enough to know what he was doing).
The real answer should be to purge software patents from the legal and software industies.
-=-
To be clear, Lehman was in charge of the USPTO (US Patent and *Trademark* Office) at the very time when trademark domain names (i.e., squatter properties) were all the rage. Now that's an issue that the USPTO could and should have responded to immediately and with prejudice.
Instead, Lehman did nothing on the obvious (trademark violations) but created a whole new morass of patent law (software patents).
Congress did not create software patents. Lehman created software patents by rubber stamping the idea and setting precedent. He didn't do his job on trademarks (the USPTO didn't address this issue until nearly a decade later, I believe) but went out of his way to create an infinitely growing bureacracy.
The bottom line: Bruce Lehman may be bad, the new guy may be worse, but the person who hired/appointed them truly lacked leadership.
My nagging question is how does one become head of the USPTO (appointed? elected? random lottery from ladder climbing lawyers?)? The person hiring these people is unclear on the concept of making society healthy and productive. They have hired incredibly pig-headed and self-serving bureacrats. Lehman may be bad, but the person who hired him is truly a culprit as well.
The blind leading the blind.
I wish I had more good things to say about software patents, but I don't. Once they became official with Lehman's very public and official rubber stamp, they have and will only become worse.
Caveat emptor.
The sooner they're purged, the better.
= Joe =
http://www.andovernews.com/cgi-bin/news_column.pl? 533
Secondly, I would suggest that every US voter sends the above URL to every politician that he votes for, with a suggestion that his rep read the story. End your polite message with, "I shall be watching your response to this situation with some interest."
Votes are what count to an office holder. It's the best way for an individual to influence a politician.
This little screed is exactly the reason I have pretty much given up on slashdot...poor reporting.
1) State Street said there is no absolute reason why a method can't be patented. This wasn't shocking. It was well reasoned and thought ought---barring the implications. The court might have thought that the patent office would continue to offer the same level of scrutiny, and everything would have been ok. Not the epitome of Solomnic wisdom, but not bad.
2) Many lawyers (most I have spoken to) hate the excessive patents. They have to do what their clients want. That is why they are hired.
3) Go read up on Howard Coble. He has tried to make copyright protection of databases work well for businesses and consumers. Databases will need some sort of protection. After all, If I set my computer to download the entire LEXIS database, and then offer it for free, why would useful information aggregators exist.
4) Absurdity (or obviousness) are defenses, always. No new rule would add it because it is already there. Uggh
5) Saying "everyone says" is not acceptable journalism. At least quote someone, as there are obviously lots of them out there.
I agree with teh idea--there are problems. This, however, is not the way to fix them.
Also, I think everyone needs to realize that many of the changes being considered are required because of the WTO. I like the WTO, and I would prefer free trade worldwide, but the European patent system is horrid--easy for lawayers, but bad for everyone else. Many of the proposed changes are there to mesh our system with teh worldwide agreements, and these are mostly bad ideas. It would be nice to read this somewhere, and discuss the relevant advantages and disadvantages. Maybe even talk about what a patent system should be, and how it should work.
ps. go look up what declaratory judgement means. Research is tricky, I know, but really, it will be worth your while. I want to become rich, then get a law degree and go after everyone in the business with declaratory judgements. Who's with me?
You say the patent tax would go to the owner of the patent. That would be Amazon. That would be pointless.
You might mean a tax, so that every patented item gets taxed extra. Well, the point of patents is to encourage innovation, not discourage it.
So what you advocate is, in short, no patents. It has been tried, and failed miserably. Look up the history of drug development in India.
Finally, you can improve a patented idea. That is why patents require disclosure. THAT IS WHY THERE ARE PATENTS.
1. Microsoft patents obvious idea
2. Microsoft uses obvious idea in killer app
3. Enthusiasts create open-source clone of killer app for Linux.
4. Microsoft sues enthusiasts into smoking crater
5. More enthusiasts create open-source version of killer app that does not use patented idea and is, therefore, not interoperable with Microsoft version.
6. Only enthusiats use it, and it withers on the vine.
(There are some differences, of course. Under the OPL, companies and programmers never have to pay a per-program or per-unit royalty, although they may be required to submit some of their own patents, as well as IP that acts similarly to patents--User-interface copyrights, some trade dress protections, not restrict reverse engineering, etc.--I'd like the license to help solve some potential UCITA and DMCA problems too. Also, I've separated out the requirements on submitting IP via Options of the license from using IP from the Pools of the license, which makes things easier to understand even with 7 Options and 7 Pools. For instance, there's the for-free-software-use "Pool F", and the for-proprietary-use you-can-use-these-patents-if-you-license-all-your software-patents-too "Pool 3".)
For those of you who missed it, the NY Times Magazine on Sunday (march 12th 2000), had an article very critical of the handling of software patents. It talked about how the process was designed for a much slower, less litigous, and more tangeble technological world, and how the inspecters are not allowed to consult anthing other than the patent database when looking for prior art. Worth the read, if anybody has a URL to the online version, please do post it.
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Play Six Pack Man. I
Open source inventors are especially vulnerable, because participating in the patent process in any way will cost you six or seven figures, which open source developers rarely have.
This guy is writing from the "making it up as he goes" department. The truth is far more interesting.
Unless you are counting in Yen, the answer is never -- not in any jurisdiction. A patent application (including search and opinion) typically costs between $2,500 and $15,000 depending upon the art and the lawyer drafting the app. In an extraordinary case (or genetics-related invention), perhaps as much as $25,000. Now that's steep bread indeed, but this guy clearly has never priced or paid for a patent in his life.
. . . an examiner gets the same credit for a final rejection that he gets for an allowance. And during quality reviews, gets seriously dunned for poor allowances.
. . . is that they get just as much credit for a final rejection as for a second action allowance. And, they don't risk getting downgraded for poor allowances on quality reviews.
If I were to propose a fix for what's broken with the patent system, it would go something like: (1) Only legitimate innovation is patentable. Patent inspectors have to either deny a patent, or produce (and attach to the patent) a written description of why the patent is valid
In view of recent case law, examiners must now write up reasons for allowance to accompany a notice of allowability.
However, soundbites like the one in the teaser for this article, can really misstate the situation. An application may run to hundreds of pages. Maybe most are only 10! Does anyone know the average? Patent Office employees get 8 hours to process, review, and approve a patent application. I bet you'd get really good at it after the first few thousand. I've seen bio papers peer reviewed in about that time.
The vast majority of patents are under 10 pages printed (including drawing sheets). Typically this is approximately 15-25 pages of double-spaced text. The 8 hours is an average figure, while the multi-hundred page application is an extraordinary case. Most ultra-long applications comprise repetive claim structures, claiming the same invention in ten or so different ways.
In short, he exaggerates ridiculously.
The letter of this clause should invalidate patents when prior art can be demonstrated. To the extent that that does not happen, the intent "To promote the Progress of Science and useful Arts" is violated.
I don't disagree with this proposition as a "shoulda'" argument. See my proposal for patent reform based upon the presumption of validity when a defendant raises new art not considered by an examiner.
That being said, the Constitutional argument is hopeless. On Article I, Section 8 cases, courts defer so long as Congress can proffer a "rational basis" for the statute's constitutionality. Further, even if the bill were unauthorized by the Patent and Copyright Clause, Congress can always rely on the Commerce Clause (also in Article I, Section 8), which grants plenary rights to regulate interstate commerce.
Cool idea, but its probably losing.
It would cost about $400.00 per application. Probably too expensive to effectively flood things. Also, each application must be accompanied by an oath sworn under threat of perjury that the applicant is the inventor. Thus, a fair amount of original thought and effort needs to go into each application, or the Solicitor might start fighting back with threats of criminal action.
It has never been the case that an average examination was less than seven or eight hours. Never. For an examination fee of a few hundred bucks, the most that can be hoped for is what is called in the trade a "novelty" or "patentability" search (as opposed to a validity search). In most art areas, this is reasonably adequate.
A validity search typically requires far more resources, on the order of $10K-$50K or more. In litigation scenarios, a six figure search bill is not suprisingly uncommon. Since the corpus of prior art is virtually infinite in scope, one can spend as much as you want and still not have considered all the relevant art.
Congress made a determination to balance the quality of a patent search against the cost of access to the patent system. And for most art areas, this balancing is adequate.
Now as to the rhetoric. While an average eight hours are spent on examination, this does not mean that eight hours only will be spent on a multi-hundred page document. The number of huge applications are a small fraction, and even for large applications (at least in the software arts), they are large because of the multiplicity of claims (most of which are similar, and the patterns to which are obvious) filed as a result of recent case law. His remark that they are highly technical ignores that examiners only review applications in their particular area of expertise.
In short, it is perhaps most polite simply to note that Bryar was using his statistics improvidently.
Now, that being said, I for one acknowledge and agree that a novelty search is inadequate for certain art areas, in particular the software arts and methods of doing business. Too many patents are issuing when the best art had not been considered.
The real harm from this is that once the stamp is impressed on the deed, the claims are cloaked in a virtually impossible to overcome presumption of validity, even when killer art is available. The jury is instructed that unless "clear and convincing evidence" of invalidity is offered, they must find for the plaintiff. In practice, juries always find some doubt, and find the patent valid.
This is wrong and unjust, particularly when a defendant raised art that: (i) was not considered by the examiner; and (ii) which raises a substantial new question of patentability.
I have a proposal for legislation presently being considered in various fora, which I think may adequately strike more fairly the balance between keeping the scope and costs of examination in check, while protecting the marketplace. For prior art that fits the preceding two criteria, reduce the standard of evidence to that of a mere preponderance of the evidence. If the art is new, let the court consider it without enhanced evidentiary requirements, and thus let the plaintiff go to court at his or her own risk.
For more detail on the proposed reforms, check out this memorandum.
Although I don't disagree with Mr. Bryar that the USPTO has some problems, he does have some credibility issues.
For example, he says that "Over the last couple of years the US patent system has been managed by Todd Dickinson," and blames much of the mismanagement on Dickinson. Now, according to the USPTO site, Todd Dickinson was confirmed as Commissioner November 1999, a mere four months ago. Dickinson worked at the PTO since 1998, but only as a deputy commissioner. Before that, it was Bruce Lehman who was screwing up the patent office.
Mr. Bryar states that "the time available to Patent Office employees to process, review and approve a patent application -- an application which may run to hundreds of pages and be highly technical in nature -- has been reduced to less than eight man-hours." As has been pointed out, the eight hour examination time applies only to experienced Examiners (who have been at the PTO 5+ years). As has also been pointed out, most patent applications are not hundreds of pages, but rather tens. Plus, Examiners examine patents in a narrow area, and are generally quite familiar with the art in the area. They generally can look at the figures, glance through the specification, and read the claims. I do agree that eight hours is low, and there should be a factor for patent complexity.
Mr. Bryar also states that "Among these are a new type of patent, not for traditional inventions, but for new "business models." In 1998 the Patent Office and the Clinton Administration bungled their response to a lawsuit brought by State Street Bank, which decided to extend its patent claims against Signature Financial to include State Street's "business methods." But if you actually bother to read the State Street case, you will find that business methods have always been patentable. And, not only that, but Amazon's famed 1-Click patent is a SOFTWARE patent, not a business method patent. After all, Amazon describes a software method, with execution steps. This is not a business method. So, blaming all the problems on business method patents is disingenuous.
Mr. Bryar further states that "But last year's legislation, the so-called Inventors Protection Act, made matters worse. The act contained nothing to restrain spurious "business model" patents" If he had read the act, he would have noticed that there is a new defense to Business Method patents, that of First to Invent. If the person being sued invented first, he or she is protected from the patent. Admittedly not a very strong protection, but it exists.
The assertion that "As amended, Section 155 now provides companies with an almost unchecked ability to claim protection on unsubstantiated, unapproved "provisional" patents and to tie up other firms in court with compensation claims." Is simply incorrect as well. First, you can only sue when the patent has already issued, not when it's still provisional or unapproved. Second, you can only collect for the time when the patent was pending if your claims are virtually identical to those published. This is highly unlikely in the real word.
Then, Mr. Bryar states that "I went through the act line by line. There is no defense based on the notion that a so-called patent is absurd or covers an obvious activity or business practice." Of course, I expect even Mr. Bryar is aware of that "obviousness" is a bar to obtaining a patent, under 35 U.S.C. 103. I think this is supposed to be hyperbole. A patent that is absurd can be obtained, of course. But then, back in the 1950's the transistor was thought to be quite absurd... as was the mouse when it was first shown.
I agree that we have to address the issues in the Patent Office, primarily by hiring more competent people, who know software. A better resource of prior art software would also be helpful. But Mr. Bryar's sweeping statements that are on their face incorrect do not help his mission.
Votes are what count to an office holder. It's the best way for an individual to influence a politician.
I agree, forward the news item to your US Senator and US Congressmember. And, please include your name, address, and phone, or their spam-screening software will ignore it.
Remember, they work for you, and this whole patent mess is their job to fix.
Will in Seattle
"There is no defense based on the notion that a so-called patent is absurd or covers an obvious activity or business practice."
And therein, my friends, lies the rub. As much as we cry and scream and wail about the lack of fairness in the distribution of patents, there is nothing currently in place that restricts these companies from filing for patents for the most stupid of things. I knew that rock bottom had been hit when I looked at my phone bill and it read "patent pending" at the bottom.
And why should companies restrict themselves? Isn't capitalism all about dog eat dog, and who can screw the opposition out of the most money? So why should they care about who will be affected when they apply for a patent for using red text on their billing form instead of blue?
And at this point, isn't it a little redundant to say that there are some serious issues in how things are run down at the patent office? I mean, seriously, what did they think would happen when they began rewarding employess for the number of patents they processed?
I guess one question is what will happen to the idiotic patents that have already been processed? Will there be some massive review, or will there be a long cleansing period where patents are reviewed as the time limit on them expires?
Wet.Mosaic
I've been considering the idea of instituting a patent tax. Registering a patent under this idea doesn't prevent anyone from using that technology. However, every product sold that falls under a patent will have an additional "patent tax", the proceeds of which go directly to the patent holder.
This would allow the market forces to determine the value of the product, as well as the value of the patent.
Also, the tax percentage could vary for different patents. It could be determined, within reason, by the patent holder. Consider: If Amazon patented 1-click under this system, no one would use it, because using the 1-click would mean their book would cost more. Thus we instantly see that the 1-click ordering is really of little value to the consumer (who votes most honestly and realistically with his pocketbook), and Amazon would probably have chosen not to patent such a thing under a patent tax system.
First, make it work, then make it right, then make it fast, then, make it bloated!
Mark, I believe we've exchanged these comments before, the last time patents came up. Since I like to post links to relevant sites, I have bookmarked yours this time to have them handy in the future. Obviously, you have put a great deal more thought into your proposal than I did into my off the cuff remarks, although I believe that our intentions are quite similar. I want to recommend to anyone who is interested in the idea of open source patents to check out Mark's www.openpatents.org web site and specifically his Open Patent License.
Request to moderators. Moderate up the comment I am replying to rather than my. His ideas are worthy of a wider audience.
The net will not be what we demand, but what we make it. Build it well.
The correct URL for your proposal is actually http://home.tampabay.rr.com/werdna/r eform.html. It looks like you cut and pasted too much.
The net will not be what we demand, but what we make it. Build it well.
This should look vaguely familiar to the US readers of Slashdot because I am quoting the Constitution of the United States of America. I submit that granting the exclusive right to a discovery to the first person or corporation to file a patent application without regard to a prior use of that discovery is a violation of this simple statement. Let me be blunt. The letter of this clause should invalidate patents when prior art can be demonstrated. To the extent that that does not happen, the intent "To promote the Progress of Science and useful Arts" is violated.
The people applying for such patents may be legitimately unaware of the prior art. It is a big world and people are doing a lot of interesting things. Furthermore, even if the US Patent Office dedicated a man-year to each application, some cases of prior art would get missed. I don't have a problem with that. And I don't have a problem with limiting the amount of time that is spent reviewing individual patent applications, although 8 hours seems meager at best. But when prior art is clearly demonstrated, the patent should be invalidated, or its scope reduced.
With the goal of stream-lining the patent process the Patent Office has created a necessity to file for patents. Anyone who doesn't runs the risk that their discoveries, no matter how obvious or trivial, will be patented, and they will be denied free use of them. The patent system in this country today would allow someone to rediscover today something that I am already doing, get a patent, and demand royalties from me. And proving prior art doesn't work as a defense. Why? It is expensive and unreliable. What does? Cross-licensing of patent portfolios. The costs are predictable and the results are exactly what is desired: a quid pro quo license of patents after inadvertent violation has been discovered.
I agree with Richard Stallman about the Amazon patent, but unlike him I don't place the blame on Amazon. They have done what is necessary to survive in the current legal climate. The law, and its implementation, need changing. Patents should be restricted to their original purpose.
It is high time for the free software community to try an experiment with a Free Patent. It will be licensed for free to all end-users. For free software projects the only requirement to license it is to file a notice that you are using it with the patent holder and include some boilerplate text acknowledging the patent in your license. Commercial use requires the same notices and a small fee on a per program rather than per unit basis, plus some additional terms concerning licensing of that company's patent portfolio for use in free software. This could create a system in which defensive patents are used only defensively, to prevent anyone else from patenting an idea and using the patent against you. That sounds utterly absurd.
The net will not be what we demand, but what we make it. Build it well.
...and what have you done with the real Signal 11? I get the feeling you're just trying to be contrary lately.
numb
If there isn't pressure on patent readers to process more patents, patents will become harder to obtain. Granted, some of the more bogus patents will be rejected -- but as competition increases for patent grants, the little guy might not be able to invest the time and effort necessary to compete with big corporations.
If you want to know a little bit more about Todd Dickinson's background check out:
http://www.uspto.gov/web/offi ces/com/admin/index.html.
Some of the more interesting tidbits that are there include the fact that he was the Chief Counsel for Intellectual Property and
Technology at Sun Company, as well as serving as counsel for Chevron.
...you don't live in a vacuum. Whether you believe it or not the corruption of the USPTO affects you. Additionally revoking a patent involves more than your 2 magic words, it largely consists of paying huge sums of money to lawyers. So you can wake up and start caring now, or later when you have to deal with all the lawyers and their hourly fees.
You wouldn't happen to have a website or similar such for the project, would you? (I'm useless at electronics, so wouldn't be much help. I'm just curious.)
This experimental one has a pretty good search engine interface:
http://search.uspto.gov/resp/alpha.html
[Sacrasm] Wow dude I never really new that the USPTO cared that much about Don Knotts that they would replace their "experimental" patent search engine with the "fameous" Don Knotts promotional page[/Sarcasm]
Slashdot social engineering at it's finest
I am wondering if there is a nice database for all patents so if you are bored to tears you can just start reading from 1 to 6,000,000+ or something like that?
Generally can a patent be contested in some manner? Is there a standard appeals process for unfair patents?
Slashdot social engineering at it's finest
The easiest way I've found to browse through the patents is through this page, which organizes the patents by "class" and "sub-class".
Right now I'm working through D01 - Edible Products/Miscellaneous/Knotted donut bone.
It went away. Yay, you should patent this approach!
Upon seeing the box was too small, Schrodinger's Elephant breathed a sigh of relief.
yeah, there are several jobs open at the USPTO for people to evaluate computer-oriented patents, and I mention this every time it comes up but for gods sake, don't apply for those jobs or even mention that they exist, bitch because they're not computer literate!
Yeah, and I'm highly offended by aboriginals because they don't know a lot about computers! Don't educate them, bitch!
Esperandi
GRR
yeah right. But seriously, something needs to be done about the USPTO. Amazon's going crazy with patents (I like the User Friendly cartoon on this topic), and no one seems to care about stopping them. Other companies are doing the same, although examples seem to escape me at this moment. Maybe I'll go out and patent the 1-click Reply button (unless someone else has already done that...). While I'm at it, why not patent the 1-Click Submit button as well. Just imagine how much $ I'd get from /. alone.
But seriously again, how could the patent office be fixed? There's not too many people who's dream is to read through patent submissions all day e'er' day (as Outkast would say). They need more people, less stupid patent requests, and (better?) divisions into patent areas. Now that companies are getting onto the Net at full force, it seems they're making the Net into just another arm of the corporate labyrinth.
Eruantalon
Eruantalon
The Annals of Middle-earth
Maybe the Open Source community, with its highly experienced, capable, and authoritative body of professionals, could be a valuable resource to the Patent Office in its admitted difficulties of finding prior art and learning how the profession judges "obvious" vs. "non-obvious" (brilliant hack) ideas.
Perhaps Andover should diversify into a patent forum. Or maybe patent reviewers should just read Slashdot.
Ok, how about a software-patents mailing list run by the Patent Office? Prominent and knowledgeable people (like those guys with such an inclination for writing open letters lately) could join. The reviewers could stay informed.
Maybe lack of later suits against the patent?
(Though this one incentivizes to preferentially deny potentially valuable patents.)
This being the case... could we not say that the abuse of the patent system is merely an effort by established (old school) business to impose artificial scarcity where, in reality, there is none?
They realize that the best way to make money is by profiting from the scarcity of resources... and due to this... the Internet must be divied up and made scarce, or no one will be able to maximize profit.
Too bad their old school ways of doing things just don't quite fit in too well with the reality of the present; these actions must be stopped.
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A PC without windows is like chocolate cake with no mustard.
It must be hard to write good satire when the world constantly catches up with last year's joke...
By the way, don't tell anyone, but I own eight cats and I like to entertain them with a laser pointer; they love to chase the little dot around. Little did I know that in so doing I was violating U.S. Patent 5,443,036...
An even older story (name escapes me) involved a team that invented time travel (or something), patented it, then sat back and waited for someone else to reinvent it, commercialize it, planning on then emerging from under a rock to try and claim the income stream.
Hello - can anyone say "amazoning!"?.
"...at the USPTO (not in the software division) and I am disturbed by how their compensation and advancement structure is so quantity oriented"
Right on.
I find it fascinating that such practices still exist where *judgement* is so critical. Has everyone forgotten that Congress had a collective fit not so long ago about a similar situation at the IRS? Paying attention to production numbers caused employees to fail to discharge their duty to the public fairly. Instead, employees were busy just racking up dollars collected or taxpayers audited; fairness and insightful analysis got thrown out the window in some cases. So what happened? Public hearings, much press coverage, wailing, gnashing of teeth, and donning of hair shirts, that's what. Eventually, laws got changed and those abuses were knocked down.
The fact that most of the abuses didn't actually exist and we're now finding out that it's not good to structure the tax law so that tax collectors are afraid to collect tax is beside the point, here. The lesson where the USPTO is concerned is that only a broad-based public perception of harm to innocent individuals can produce the sort of anecdotal sound bites that get laws changed. We need to find some people whose lives have been ruined by this crap and start trotting them out in front of the evening news cameras. This may not be the intellectually honest approach we'd like to see, but since when has a reasoned explanation of the harm caused by a law, government entity, or silly regulation sufficed to get the situation changed over the objection of moneyed interests? No time I can think of.
We need poster children. Anybody have any nominations?
Please explain to me why we're getting so worked up about it. Open Source / Free Software does NOT need patents. We design a program/device and release it to the public. If somebody goes off and patents it after that point, we just point to our reference model and say 2 magic words: "prior art", and the problem disappears.
We wish this were true. But it's not. Prior art can be used to demonstrate that a patent application is not valid. To overturn an existing patent on the basis of prior art will often require time in court - simply appealing to the USPTO is not enough. How many open source developers are prepared to spend lots of money fighting off patents which have been erroneously granted? Even the EFF has limited funds - don't think that we can always leave this to the EFF to cover us.
Patent reform, and a USPTO which doesn't view numbers of patents granted as a basis for productivity payments to the patent officials, is needed, badly. Just because you believe that the wolf howling outside your window won't eat you doesn't mean you shouldn't try and shut the doors.
Cheers,
Toby Haynes
Anything I post is strictly my own thoughts and doesn't necessarily have anything to do with the opinions of IBM.
Everyones seen braveheart.. this whole scenario reminds me of a brave heart rip off
Paraphrasing.
Longshanks says if we cant kick them out we will breed them out
In essence the corporations are doing the same to us little guys. If they cannot outright take away rights they will do it slowly and erode us in many areas at once so that one day you wake up and you own and have nothing.
I have two friends that work at the USPTO (not in the software division) and I am disturbed by how their compensation and advancement structure is so quantity oriented. Basically, they are told, you must review X number of patents in a week, if you do 110% of X, you get a raise of Y%, if between 100% and 110%, then Z% if less then just 3%. My friends are very competent people, but I think that the emphasis should not be on number of patents (or rejections) turned out but on thoroughness of patent review. Of course pressures from concerned companies would influence them, but I think cutting edge industries (such as software, biotech, etc.) will suffer as individuals begin suing each other needlessly. On the other hand, it's a great big universe and I'm just one tiny speck...
Y'know you take a perfectly valid argument like this, sprinkle it with some overenthusiastic "journalism" and then soundbite it into "a patent in the hundreds of pages gets an 8 hour review" and it makes it hard for anyone to take it seriously.
I totally agree with this argument. The USPTO is overloaded and has made some high profile errors lately. One piece of good news, is that they are using technology as well as they can to streamline the patent review process. But their is no way around good old common sense being applied to these applications and that takes time. Agreed.
However, soundbites like the one in the teaser for this article, can really misstate the situation. An application may run to hundreds of pages. Maybe most are only 10! Does anyone know the average? Patent Office employees get 8 hours to process, review, and approve a patent application. I bet you'd get really good at it after the first few thousand. I've seen bio papers peer reviewed in about that time.
Anyway...most regular Slashdot readers seem to have enough critical thinking skills to ignore this kind of slanted journalism and make their own conclusions. That's what makes our moderation and rating system work. Hey...maybe you could patent it and license it back to the USPTO for patent review.
BRENT ROCKWOOD, EST'd 1975
Considering this story, it might be possible to flood the patent office with so many bogus claims, that it would effectively shut it down. If enough companies were saved from bogus law-suits - it could provide an "incentive" to offer a constant revnue stream of funding to support the process. David
How about we write up the business process (method) on filing patents. If we make it long enough and technical maybe it would be approved. Then no could file a patent without our approval.
Yeah, and i bet i can be cut to less with the proper "incentive"
"Agh. 500 pages before 4pm.. Heck, I'll just recommend this - noone will notice.. "
Scary.