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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.
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!
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.
You can use this script instead.
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Stop worrying about the risks of nuclear power and start worrying about the risks of not using nuclear power.
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
send flames > /dev/null
Only 'flamers' flame!
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.
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.
I'd have thought this was obvious. Do you really need it spelled out for you? Every time someone files a patent they are in essence telling you, "This thing you may not build without our consent." Sometimes that is appropriate, if, for instance, the patent holder spent a lot of time and money inventing the thing being patented, but more and more frequently the thing being patented is either bleeding obvious, or else so broad that it covers not only the patent holder's invention, but also a whole bunch of other things that he didn't invent. All of this translates to shutting you (yes, you) out of the market. (Isn't it amusing how everybody flaps their lips about how wonderful the "free market" is; yet, nobody actually wants to compete in it?)
Let's use one of your own examples:
But of course your solution is complete baloney because if your analog processor were so superior you would have invented it without having been forced into it by someone else's patent. For a company to patent their own revolutionary CPU design is reasonable; a patent that covers any CPU that someone else may invent subsequently is way out of line. And for a slightly sillier example you say:
But, what if somebody patents "the use of man made utensils to facilitate ingestion of foodstuffs"? Will you then just eat with your hands?
Burying our heads in the sand is not the answer. If we "stop worrying" and "just hack code", we could well find a cadre of lawyers at our doors telling us that we no longer have the right to hack code unless we pay up to some bozo who has gone and patented whatever we happen to work on. If that happens, far from "dying of its own excesses", the system will perpetuate itself as large companies that can afford to patent everything under the sun enjoy a legalized monopoly on writing software.
"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."
But I'm assuming you'd be pretty pissed off if MegaCorp Inc. calls you up one day and says you can no longer pursue your hobbies because they have a patent on "Putting computer equipment together".
"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."
Not everybody wants to jump on MegaCorp's command, though. I don't really want to be forced to use chopsticks or solder my own CPUs. Big Business provides a very real danger of stifling and extinguishing innovation, on the net, or wherever.
It's 10 PM. Do you know if you're un-American?
I think you fail to get the point - innovation is a path to find the BEST way to do something, not just the latest and greatest. If the "best" way suddenly becomes the private property of one commercial company, then even if you find something almost as good, you are still at a disadvantage. Amazon's "one click" patent isn't just for "one click" - they claim that ANY shopping cart method that stores the customer's details so the user can just commit their order, regardless of if they click a button, ring a bell or use voice recognition to shout "make it so!" from the other side of the room.
Overturning a patent once granted is a slow, expensive process with courts automagically giving patent-owners restraining orders on request that could completely destroy your income just when you need it to PAY the lawyers you have to hire...
What it comes down to is that patents, particularly software patents, are being given out by people with insufficient time to evaluate them, even if they HAD the skills to do so, which they don't.
--
-=DaveHowe=-
"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!
Hogwash? Did you read what I wrote? It is not what we have currently, it is very different.
Currently, companies own the rights to what they have patented. Under what I described, they own no such rights. They simply get rewarded if the technology in their patent ever gets used. However, any individual or company is free to develop products based on the patent without having to arrange a license agreement with the patent holder. Thus, all ideas are owned by the public, and market forces would determine the cost and value of any resulting products.
The patent tax would be applied like a sales tax on any products that use a patent. The money from this tax goes to the patent holder. That is the sole benefit of owning the patent.
Under today's system, companies are not forced to license their patent to others, and are free to hold onto the monopoly themselves, or worse, can simply prevent any product being developed with the patent. And companies with the monopoly can essentially charge whatever price they want for their product (unless the gov. sets price controls - ugh).
First, make it work, then make it right, then make it fast, then, make it bloated!
You say the patent tax would go to the owner of the patent. That would be Amazon. That would be pointless.
No, not pointless - that's the point.
the point of patents is to encourage innovation, not discourage it
Exactly. Thus, receiving the patent tax revenue is the incentive both to a)innovate and b)disclose your invention and patent it.
I find it odd that the "Hogwash" poster complained that my patent tax idea was no different from what we currently have (hello? There's no patent tax - there are only patent monopolies), and now you are responding saying my idea is in effect the same as having NO patents. I guess it would be too much to ask that people would actually think about what they read.
First, make it work, then make it right, then make it fast, then, make it bloated!
Err, maybe because if software is patented, you won't be able to write any other software that does exactly the same thing? Ref: Amazon against B&N.
No hacking in the US to clone products into the free software area (because of DCMA).
Why we (and this includes those of us outside the US) should worry about this:
The price of freedom is eternal vigilance.
Note, I agree that the only valid cover any software should have is copyright.
I can throw myself at the ground, and miss.
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
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.
"...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.
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