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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.
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.
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!
Try here http://www.patents.ibm.com/ibm.html This is the IBM intellectual property network
-Master Switch, one more element in the machine
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 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=-
I think you're missing the point. This is the first article, out of hundreds I've seen recently on the patent problem, that actually addresses the "real problem", which IS the PTO. You can't blame corporations for greed, or for taking advantage of whatever corruption they can find. One can even argue that they're required to do so by law - officers of publicly traded corporations must operate with the best interests of their stockholders in mind.
Try this thought experiment: if no law enforcement agency in the country arrested or prosecuted anyone for murder, would you say that "the real problem is all these murderers"?? Or would you say the real problem is that the government is not doing its job?? It would be the latter of course, and it's the same with patents.
It's ironic that the patent system has become so corrupted that it has exactly the opposite of its intended effect. Not only is the inventor no longer protected by the system, she has actually become a victim of it, by being forced to defend her true innovation from the feeding frenzy of IP lawyers and their spurious patents. 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 is why Linux IPOs are a good thing - so companies like Red Hat and VA Linux can hire patent attorneys to defend open source when necessary. OTOH, they also present a target for patent sharks to attack. One of the best defenses against a patent lawsuit is not having any money!
Of course, the real inventors these days have all signed over their entire brains to the companies they work for... but once in a rare while, they are actually rewarded for their effort. Usually not though, especially in Silicon Valley, where the vulture capitalists and the lawyers have perfected the art of the screw. The SF Chronicle ran a pretty good series on that topic recently.
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