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Do Patents Still Work?
"Here is my real question: What if we stopped issuing new patents in the United States: would 'the progress of science and useful arts' suffer? Prior to the advent of the Internet and the success of the Open Source movement, I would have said yes. Now I am not so certain. What do you think?"
Of course, these days, patents are used to prevent innovation more than anything else. I find this rather ironic.
More hilarous than ironic, this gem from Forge illustrates what can happen when the Patent system gets slightly out of control: "Hyperspace communications has been patented and is now my nominee for strangest patent. According to this story on the Register someone has not only "invented" hyperspace but has also figured out how to use it for transmitting data faster than light. My question is, does a fictional work count as "prior art"? To add to this concept Arthur C. Clarke is widely credited with having invented the communications satellite. The infamous band of space in which geostationary satellites orbit is known as "the Clarke Belt" in his honor. However he once said in an interview that he might have patented the idea if it had occurred to him that someone might actually build such devices such a short time after his story."
The big question here is how can you patent something that hasn't been invented yet? It seems that I can conjure up any flight of fancy that might just have a passing chance at becoming truth, patent it and make that idea mine forevermore?
const submitted a question that offers a potential solution: "I'm interested whether the patent madness may be stopped by restricting the number of patents in addition to shortening their time. If only 100 patents will be granted each year for the computing industry, only significant advances will be patented and things like the now infamous one-click patent will not get through the jury of experts in the field. The progressive scheme may be like the following: 1 patent - 10 years; 10 patents - 3 years; 100 patents - 1 year." which would make getting patents more of a competition between implementations, and to compete for the protections offered by patents sounds like a fair way to "promote the progress" in any given market.
Why is this an "Ask Slashdot"? It should be an "Ask Amazon.com" instead.
Has anyone tried a legal challenge to the patent law extensions based upon the argument that they don't promote advancement?
"The legitimate powers of government extend only to such acts as are injurious to others." Thomas Jefferson.
Okay, this is a joke. But it illustrates what is wrong with patents today, everybody tries to patent everything, even obvious things. This results in the slowdown of progress because anybody who tries to innovate stumbles over a dozen patents from people who are not interested in innovation but just money.
Grtz, Jeroen
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Actually, I think this issue has already come up. In Heinlein's book "Stranger in a Strange Land" mention is made of a "hydraulic bed". From the description, this bed contains water and is used to gently float a patient to lessen chance of bed sores and cause less pain to burn victims. This book was published in the late 1950's before waterbeds (which is clearly what the hydraulic bed is) were invented.
I'm going to need someone to help out with the story from this point on, though because it's hazy in my mind. All I can remember is that someone tried to patent "The Valentine Michael Smith Water Nest" or something like that, and Heinlein won some kind of legal challenge against it. What I don't remember was whether this was based on the prior art aspect of the waterbed itself, or some kind of copyright on the name.
--
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as how we define them. Patents have been defined far too broadly in the courts as of late. The whole idea of intellectual property and the fact that the courts have effectively ignored the fact that many patents are just blatant attempts to capitalize on the obvious.
For truly revolutionary and unique ideas, patents are an important protection for the people who create new technologies and industries. However, trying to patent ideas that are or would quickly become obvious to the whole of mankind is counterproductive and harmful to the population and industry as a whole.
Patents are a logical protection under the law for creators, inventors and people of imagination that want to profit from their creation. However, when the law is interpeted too broadly we are stuck in a situation where idiot companies like Amazon can patent technology that is obvious to anyone who is not completely ignorant of the same said technology. Either the patent department needs to catch a clue or the whole set of laws surrounded patents need to be revised on a Federal level. However, ditching the laws wholesale is counterproductive.
Maybe I am too conservative and not reactionary enough for some but the whole idea of throwing babies out with their bathwater is narrowsighted to me.
ACK
The thing about patents is that there are an awful lot of them around (see patents.ibm.com), but that the /. community only ever gets exposed to those which are bad in their view. After all, it doesn't make much sense for Rob and co. to put a story up saying "Company X gets patent for invention they put time and money into", not when they want controversy in order to generate more ad revenue. In this sense, /. has become the Linux zealot's equivalent of the tabloids, which is a pity.
Patents do work, and they work well for a lot of things which /.ers never come into contact with or never think about. They have a valid use in allowing someone to gain the benefits of something they've done, and it is only knee-jerk /. anti-patent opinions that seem to prevent people here from realising this. Sure, there have been a couple of "bad" patents perhaps, but the system works and has worked for a very long time.
Let's face it, the issue is more complicated than the typical narrow /. worldview, in which open source rules supreme and "gurus" like RNS espouse psuedo-socialist hacker ethics to the adoration of the community. The fact is that patents do work for 99% of people, and that the issue requires far more thought than /.ers seem capable of.
If patents are not intended to bestow upon the inventors any of the qualites of material property, how then do they encourage innovation? Isn't it precisely because they bestow the ability to control and profit from an inovation that they encourage inovations?
The question them becomes, does extending the strength and length of a patent beyond some arbitrary parameters actualy provide more encouragement? Will you spend more time or effort inovating and progressing if you know that you'll control your invention for 75 years rather than, say, 20?
Finally, doesn't protecting uninovative and unprogressive items have the opposite effect? Aren't you likely to put more time and effort into research if you need to show true originality in your concept than if you can patent every flight of fancy which comes your way?
"The legitimate powers of government extend only to such acts as are injurious to others." Thomas Jefferson.
LZW is patented, so there is a move towards other compression algorithms, many of which are better in a general case. This suggests that progress was promoted. This is of course not how it was meant to work. The purpose is to allow other people to produce works based on the patented technology. This doesn't seem to be happening.
It seems that the patent holder has too much control over how their patents are used. In the past this didn't matter so much. Producing a machine costs money. A small surcharge from the inventor of the machine wouldn't affect this significantly. If the inventor asks for a fair price then everybody's happy.
The system breaks down when the patent owner uses the patent to prevent competition. Either by refusing to let anyone use the technology, or by charging too much to allow certain groups to use it. Because software can be produced on a shoestring budget, the latter is often unintentionally the case.
Was this overrated???????? It was at 1 that is the default for loged in users!!!!!
And I was only answering his question.....
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Due to my research, I've looked at patents where they actually make sense; chemicals and chemical processing, in which the patent usually revolves around the composition of the catalyst used. Some of these are very narrow, but some cover huge numbers of possible compositions, as well as large numbers of possible elements to use. (Such as up to 20 metals as catalyst promotors.) This would be all well and good if their provided enough examples of these, but in most cases, only 2 to 3 examples are given, covering only a tiny amount of their 'composition space'. Sure, I know that one can extroplate that if platinum (a noble metal) works, then most likely other noble metals such as palladium will also work, but most of the metal selections don't have rhyme or reason-- they just take as many as possible.
This is part of what needs to de done: the reviewing of the patent. Often I read that the patent office is swapped, and they have to push patents through as fast as possible to achieve their required quota, and furthermore, especially for computer-based patents, the expertise is not there. One solution is to throw more money at the problem and get more patent people in place with more viable skills with newer patents, but that's only half the problem.
The other is the time factor. Earlier this century, when the speed of information transfer was limited to snail mail, telegraph, and the telephone, the disclosure of ideas would take a long time, and thus long times for the delays of patents was necessary. However, as we've got to television, satillite communications, the internet, and whatnot, information moves much much faster, and the same time that was required 100 yrs ago is not really needed. However, one must still considered that there are a considerable number of patents that come out on tangible, real, processes (such as chemical production); if the patent office was to shorten up the time scale too much, a competiting company can design and build a facility (which can take a few years) that uses a patents but turning it on the day after the patent lapses, and benefit from the findings of the other company without paying for it, which is highly uncompetitive to the entire field.
So the time of patents does need to be shorted but not too much; 17 yrs is currently too long for the e-commerce patents, but 5 yrs is too short for process patents. Furthermore, you cannot just catagorize patents into "short term" and "long term" ones; while you could easily seperate the patents of today into those two areas, how can you know that in the next few years someone will have a patent that could fall into both because of the thinning of the real and virtual worlds? The nature of the patent should grant it no special privaleges.
At this point I would argue 7 to 10 years for patents. It should be long enough for the patents that were truly put in place to be protected, but fast enough for the new types of patents to disappear quickly. But of course, if combine this with patent reform and a tightening of the review process, few "bogus" patents would be issued, and we would not have to wait 7 to 10 years for that bogus patent to elapse.
"Pinky, you've left the lens cap of your mind on again." - P&TB
"I can see my house from here!" - ST:
The patenting system was basically put together in it's infancy to stop big corporations from stealing ideas from the shed-in-the-bottom-of-the-garden type inventors, and to ensure that they could profit from their ideas.
These days, the garden shed inventor is a dying breed, and corporations are filing all the patents.
Certainly, in the computing industry, the amount of time it takes for patents to expire is incorrect.
I'd say 10 years is enough for any patent to survive for in any technology involved with data communications and computing machines.
The problem is, all of the corporations have large wads of cash to throw at legislators. And that is the biggest obstacle to reform.
Strong data typing is for those with weak minds.
Strong data typing is for those with weak minds.
1) The solution requires that the patent office select the "best" patents. The current US patent problem is mainly due to the fact the the patent office has no clue.
2) Say I submit an application for a patent this year and 99 have been granted already. If you're the patent office do you grant me the patent, thereby barring all further patent applications this year, or do you reject? A sensible decision would require you to know all of the patnet applications you haven't received yet. You're not going to be able to tell.
Imagine the horror of Patent Rush on 1st January each year!
I hate the current patent system as much as anybody, but patents are useful. There are some things that would not get invented were it not for patents.
I always like to look at the pharmaceutical industry for an example. They have to spend millions of dollars developing a drug and bringing it to market. Guys in their homes on their computers can't invent drugs for the hell of it like we can software. It is an incredibily long and expensive process. The only way they will get invented is if pharmacetucial company who invested the large amount of money into it can get a very large return. The only way for that to happen is to give them exclusive rights to their invention for a given amount of time (ie. through patents).
I would like to repeat, I do believe that the current system is broken at a fundemental level, but that dosen't mean IP is bad all around, or even not necessary.
Jordan Bettis
``Wherever you go, there's another stupid sigfile quote.''Patents protect in the case of software the process, in the case of software it protects the algorythm. Copyrights (the other protection) actually protects the work itself, in software that means the source and binaries.
--
Hephaestus_Lee
"[Y]our wise men don't know how it feels to be thick as a brick." -- Ian Anderson
Lately, I'm often confused about the entire war over "intellectual property", as it applies to things from newsgroup postings to open-source code to an idea you talked about with your wife over coffee.
As I see it, patents are there so that an inventor can design something new and unique, and not have to worry about getting the credit for his work stolen.
For the world of media, we have copyright and trademark laws. Patents, however, are slightly different as I understand them. To get a patent, you need to have something physical, not just an idea.
Apparently now, if I take an idea I have for, say, a flying car - I design it, I build a prototype, and I want to sell it to people. However, I know that Ford Motors can produce and sell it more efficiently, and use my own ideas to put me out of business. So I take my prototype to the patent office, and I patent it. That way, if Ford DOES come out with flying cars based off my design, I can say "Ahem, look. I patented this, it's legal and official, let's have our lawyers talk."
I'm not certain if that's exactly how the letter of the law reads, but I'm pretty sure it's the gist of it.
ObTechie: If I have a wondrous idea on how to make firewall software more efficient and successful, and I post it on alt.tech-support - then some company goes and releases a "New-and-improved" firewall program that uses my concepts, have I been robbed?
Perhaps by the concept of "intellectual property", yes I have. But morally and ethically, no. If I had a plan for this program, but didn't do anything with it (copyright it, trademark it, or patent it - whichever applies to software), and I told everyone about it, then it's my screw-up for giving away the secret.
It's just like finding a gold mine on unowned land. You'd better buy the mineral rights to the land before going to the bar and bragging about your discovery.
Personally, in this day of new technology popping up left and right, and especially in the cutthroat market we have, more people need to understand the patent system, and the rights they have to their inventions.
Just my 2 pesos. Return with interest.
~Matt
"So, I'll put down my LART, and you'll put down your StUd1yK@pz, and we'll access UseNet like civilized people?" -The D
Patents are only supposed to be good for a limited time (currently 17 years). Back in the indudstrial age, you needed that time for basic R&D and getting your product to market. By the time you got your product out and in use by people, the patent would be close to expiring. These days the product development timeframe is much shorter, especially with software. Any changes in patents should reflect this.
---
How am I supposed to fit a pithy, relevant quote into 120 characters?
I have said this before on Slashdot, but I'll say it again. The patent system is a funding model - a way of funnelling money for the purpose of scientific research.
There are many possible ways of funding research - public money, charity-type organizations, etc. However, the patent system overwhelms other funding models we might try because it creates the potential for such astronomical returns on investment. Other models can't compete.
Here is my alternative: set up a patent tax. It works just like a national sales tax. Any product that makes use of a patent has the patent tax applied to it. the proceeds from the patent tax go to the holder of the patent. In addition, NO ONE is restricted in any way from using patent technology. The patent tax could vary with each patent - that's detail that could be worked out in interesting ways.
I'll give an example of how this works - take the Amazon 1-click patent. If Amazon patents this under this patent tax, then any user who choses to use 1-click must pay the patent tax, whereas if they choose to order normally, they wouldn't. You can see how easily the market would determine the value of this patent - nobody would do it. The only thing Amazon has succeeded in doing by patenting 1-click is ensuring that no one will use 1-click. So, they probably would not have made such a ridiculous patent under this system.
Another example: Someone invents a pill that cures breast cancer. They patent the pill. Now, any company can manufacture the pill and sell it, so it's likely to be cheap, right off the bat, but there's the patent tax, of, say 100%. So, the patent holder makes a lot of money - even though others are allowed to sell their product. It probably makes economic sense for the patent holder NOT to make their own product, as they would make as much money off of others, without having to be a manufacturer.
In any case, I think we could get rid of patents, and we'd, as a society, just have to come up with different funding models. I think we could do that.
First, make it work, then make it right, then make it fast, then, make it bloated!
How about a more significant cost for commercial patents, say 1 million pounds, while some sort of non-commercial patent is free (with suitable definition for commercial and non-commercial). This would stop it being worthwhile for patenting ideas that dont directly make money, allowing anyone to use them.
Or is this directly against what we (the open-source movement) are about.
We, as a community, tend to look at "patent" and see "software patent." A better question, when we talk about patent reform, is whether patents work in general. Yeah, they tend to be a bad idea when it comes to software, but in general, are they a bad idea?
We, as a community, need to take off the rose-colored Open Source glasses, and look at patents in a broader scope. Most of the patents that are issued every year have nothing to do with software. Many of them are not even related to technology. Before we start "reforming" patent law, maybe we should look at other areas that have a lot of patent activity.
I don't intend this as a flame! We hear about software patents all the time but there is definitely more to the patent picture.
darren
Cthulhu for President!
(darren)
The spirit of the patent law is that, If there's something useful that someone created, make sure we all get it. But to be sure that it would be shared, make it worth the innovator's while to share it.
But the spirit of corporate litiganous patents is that, we get patents for as many things as we could create, and then get patents for as many things that we could patent that we couldn't create, and then we patent things that our competitors will potentially want to patent, and sit back as we watch them fall into our trap.
Regardless of the influence of lawyers and corporatism, the patent laws are still functioning as they need to, which is, as raised earlier, to promote and encourage innovation so that we can all benefit from such innovation.
Of course, we now have patents that cover fictional inventions that we don't even have the capability to implement yet. But that's ok. Because if it's too far beyond the current capabilities of anyone to make the invention a reality, then it just won't happen, not within the time that the patent covers to protect the so called 'innovator'. In that case, it's just as well for all of us, because now we have the ideas that we can work on (if they are not impossible to implement), and by the time we accomplish them, they'll be royalty free.
Lawyers write the laws. Admittedly, there are areas that are much worse than patents (take a look at the tax laws sometime), but patents are pretty bad.
That said, the biggest problem with the patent system seems to be the extreme overload of the system from gazillions of applications, plus the lack of patent examiners who are remotely familiar with the fields they're working with. "Prior art" nowadays seems to mean looking in the patent system database and nowhere else.
We definately need some new laws to tighten up the requirements for "novelty" and "usefulness". We also need a way of getting the real experts in the fields involved to look at patent applications. Could an "open source" arrangement work? Publish applications on the Web and let everybody make comments? (I rather suspect not; there are just too many applications.)
One reform that the US patent system needs is to move from the "first to invent" system used only in the US to the "first to file" system used everywhere else. "First to file" is trivial to determine -- just look at the postmark on the application. "First to invent" is just another playground for lawyers.
Another reform would be to tighten up the time between publication of an idea and filing for a patent. This is one of the problems with the LZW patents used in GIFs. Unisys filed the patent well after the article describing LZW compression was published. None of the authors of the paper, BTW, had any connection with Unisys. At the very least, any publication of the idea should contain an "intent to file" statement.
But it won't happen. The lawyers in Congress aren't going to do anything that would cut down on their colleagues' incomes, and the Big Money likes things confusing. Neither Congress nor Big Business cares squat about "promoting the progress of science and useful arts".
Welcome to the Turing Tarpit, where everything is possible but nothing interesting is easy.
But these problems should be seen as part of a larger challenge facing intellectual property protections. The Napster and DMCA and DeCSS problems are all related to copyright - another form of intellectual property protection, which is challenged by our new information technologies' ease of dissemination.
Some people have called for major revisions to our copyright laws, and others (like Jeff Bezos and the people in the introduction above) have suggested that the patent system should face strict reforms.
These are sometimes extremely good suggestions, but we would do well to keep in mind the following:
2. We cannot just tinker with these systems, but must treat them with profound respect (even if they are broken) because huge amounts of money and acclaim could end up going to people who don't deserve them, while innovators who do deserve them could get screwed.
3. If we think of copyright and patent problems as parts of a larger set of intellectual property issues that need consideration, it will actually help avoid confusion -- and we will be more likely to convince others (read: legislators) that these issues deserve attention.
For more background on the patent problem, see James Gleick's superb piece, Patently Absurd (NY Times, 12 Mar 00).
A. Keiper
The Center for the Study of Technology and Society
Washington, D.C.
What was I thinking of? Moderators with a sense of humour?...
Strong data typing is for those with weak minds.
Strong data typing is for those with weak minds.
ah.. the joys of moderation...strange though how unrated things can be overrated..
//rdj
No one can understand the truth until he drinks of coffee's frothy goodness.
--Sheikh Abd-Al-Kadir, 1587
Building on this, technological development has had other effects.
As noted, communications developments from the telegraph onwards have greatly accelerated the flow of information. This permits much quicker commercial exploitation of novel ideas and products.
But there are other changes. The market is much larger, increasing the rewards of new ideas. There are also many more potential inventors, so the cost of "first to file" is much higher. The likelihood that something would remain uninvented with weaker patents is much lower. Even 5 years is not likely to slow innovation. It would slow filings.
This applies in most areas, but not all. Pharmaceuticals are extremely expensive to develop, and slow to market due to government action (FDA). Some process patents (Unipol for plastics) take a long time (3 years) to build a plant, and need some time to pay back. 17 years might remain apporpriate for them.
Even stranger, the 'overrated' just vanished again. I think somebody has been pushing the wrong buttons....
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Oh, of course, lots of people (the racketeers that make money with patents, and their lackeys), will tell you that all research would stop without patents. As if research had ever waited for patents so as to begin! Yeah, some people even pretended that without a monopoly, there would be no trade between Europe, Asia, and America; but their tea ended in the sea near Boston.
Patents have ALWAYS been a way to STIFFLE, not ENCOURAGE, coopetitive creation. Witness these Quotes from the LPF.
Free Software! Free Information!
-- Faré @ TUNES.org
-- Faré @ TUNES.org
Reflection & Cybernet
As a soon to be patent holder I am somewhat
concerned that my ideas/technology will be
taken from me, even with the patent.
As we all have seen in the recent past, a patent
is only as good as the amount of money you can
throw at it defending your "property" rights
in court. Many corporations peruse the patent
lists looking for good ideas to rip-off. And if
a corporation, say Micro$oft, was to produce a
product that clearly is "supposed" to be protected
by a patent, there would be no way for a garage-inventor
to back a long-term legal action
against such a giant. The corporation in question
could tie up the whole proceedings in court indefinitely
while making $$ off of the original
idea.
Patents may be nothing more than a good way to
get to see a judge in person. But then again.....
If Congress (through the delagation of powers to the Patent Office) allows patents to be granted that promote neither science nor useful arts, wouldn't this be unconstitutional? (i.e., a case of the Patent Office abusing its powers)
If a corporation uses its patents solely for the purposes of bullying other people and corporations around, wouldn't that be evidence of the non-positive nature of the patent?
I'm sure that LZW compression (of GIF fame) would have been invented whether or not the incentive of temporary monolopy was present. (The remainder of the GIF spec cannot possibly be considered innovative by even the daftest of morons. If anything, animated GIFs are the scourge of the bandwidth-challenged.)
Donny
1. The battles over intellectual property protection have been at least this intense before (even if patent applications have not be so prolific before), and the system survived.
The article cited does a good job of putting forth the argument that "The patent system has been broken for a long time, and survived". Just because it was broken 100 years ago, and is still broken today does not mean that it doesn't need reform. It's never too late to improve our situation.
--Bob
No, patents do not work.
The guy who patented (or at least 'invented' the process) the referenced 'hyperspace communication' was actually at one time the bassist for Iron Butterfly. The knowledge drove him insane.
It allegedly worked by bending gravity-waves. Since they don't actually travel, it was instantaneous.
Like I said, just thinking about this drove him crazy. Then one day he disappeared while going to pick up a business associate at an airport. There was all kinds of speculation, the russians kidnapped him (like tesla), aliens, roscotarians, you name it.
There was even an America's Most Wanted segment on it (although it wasn't as good as Unsolved Mysteries recreation of Rollin's best friend getting shot)
Last year they found his van at the bottom of a cliff. His body was in it. He probably killed himself.
P.S. Random 'quotes' make anything 'sound' like a 'conspiracy'
- My password is slashdot
Couldn't /. patent trolling. Ban AC's, and it'll be one more troll and I'm gonna sue. Now that would be progress...
Seems like intellectual property is coming up a lot here. Just last week I posted this. Here goes again: For those wanting to find out more about the economics of intellectual property, I recommend this analysis. The piece is about standards, but the first two sections give a very helpful discussion about the economic rationale for and meaning of IP law.
I believe there was a story about penecillin being delayed as a commercial drug because it wasn't patented. The problem is that drugs are expensive and slow to start producing because they need to be tested. Tests take a lot of time, cost a lot of money, and the drug is quite likely to be banned before production even starts. If it is found to be safe, and a company has no patent protection, then a rival can easily produce an identical product at no cost. Patents could only safely be revoked for drugs if there was a means of making the tests free. This argument doesn't apply to all other patentable inventions though. Especially software. Software can be released as soon as it is written. For a rival to use identical algorithms, they would not be able to use your code because of copyright laws, so they would have to produce the software from scratch. This would take several months for any non-trivial algorithm, and by this time, the rival should already have a good head start.
If we understand an "advance in the art of computer software" to be an expansion in the set of problem instances that can be solved using existing computer hardware, then computational complexity theory supplies the necessary organizing principle for software patent law. For details, see my recent law review article, "Computational Complexity and the Scope of Software Patents," which appeared in the American Bar Association's JURIMETRICS journal.
The article is now online at http://democracyweb.com/law/software.htm.
How many of you are patent attorneys? Even better, how many of you are lawyers? It must be pretty easy to sit and bitch about the problem when you have no idea what your talking about. Patents have never aided the progress of the arts and sciences?!? You have to be kidding. There may be problems with the system, but it sounds like many people are just pissed beacuse they want to just be able to TAKE the things they want. Sorry, but that's not how it works. People have a right to protect ideas they create and prevent them from being taken just like people have a right to sell the software they create as opposed to having it ripped off/given away. Open Source/Free Software may work well as a solution for some problems, but how much progress will be promoted if all software is free and no one is making money on it? Lots of progress when everyone is out of work, huh?
17 years for patents in this rapidly evolving industry is way too long. Why not measure them in net-years. A patent could last 3-5 years and copyrights could last 10 to 20. Companies would still make back their investments if they use their patents correctly and we'd see much less of the patent cruft that's currently building up.
I'm trying to teach myself to set people on fire with my mind... Is it hot in here?
When the foundation was laid for our current patent system, we were an agrarian society. Patents allowed inventors to communicate their inventions to others who had the means to bring those inventions to market. Today, we are an industrial society where most inventors are employed by corporations. These inventors don't stand to gain directly from their inventions since their patents will most likely be filed by or through the corporation and the invention will be owned by or licensed at little or no cost to the corporation.
In those days, patents were issued mostly on machines. In order to get the patent, the inventor would send blueprints describing his invention to the patent office. These blueprints provided enough information for a potential investor to instantiate the inventor's ideas. Software patents are issued against what amounts to a program specification which describes what the program does in theoretical terms. The description that accompanies the patent does not include enough information to create a working instantiation of the idea. Writing the specification is only a small part of a working implementation. An analog to mechanical blueprints would be submitting the source code to a working implementation of an idea but this isn't done.
People who invent machines need a lot of capital to bring their ideas to market. They need to invest in manufacturing equipment and space. They need to purchase materials from which to make products. They need to pay someone to ship completed products to market. Software developers only need a small office (which could be in their home), a relatively inexpensive PC and some development software (which could be found for free thanks to the FSF and other free software and open source suppliers) to produce code. These are one time costs that don't need to be incurred again if the developer writes another program. Distribution is also less costly as the finished product can be distributed and advertised on the internet.
People who invent machines have no other means of protection besides patents. In some cases, it may be possible to rely on trade secret status but usually a piece of hardware can be dismantled to see how it works. Software source can be protected by copyright or trade secret status. Although it is possible to disassemble a program, this results in machine code which is not equivalent to the original sources. The usual means of reverse engineering software is to examine what a program does and write a new program that attempts to mimic its behaviour. This is a costly and time consuming process when applied to a program of any complexity.
Although software companies are making record profits, they continue to seek new ways to protect their investments. They have outgrown copyright and trade secret status. They won't sell you a product but will only give you a license to use it. Those license terms continue to get more strict. They lobby congress to extend copyright status for longer periods of time and to enact laws enforcing consumer unfriendly licensing terms. They patent every aspect of their programs possible so they can sue any and all competition.
Imagine where the software industry would be today if Xerox PARC had patented their groundwork on graphical user interfaces or if Lotus had patented ideas used in their spreadsheet. Entire industries have been built around these ideas that would not exist today or at least would not be nearly as expansive had these ideas been considered patentable.
It is not possible to copyright or patent the theme or plot of a book. It should also not be possible to patent the ideas and concepts of a computer program.
Attempting to base modern society off of 18th century pre-industrial laws is like _so_ dated it's carbon dated! This is the new economy, baby- with the new rules to match! Talking about fusty old documents like that is even funnier than trying to apply 19th century antitrust laws to modern info e-dot-commerce company! Like, get real!
Patents are the modern, high tech way to deal with monopolies- make everyone a monopoly! For example, I myself have patented the word "the"- and am rolling out plans to charge a $3 licensing fee for every use of the word the. You may even have heard about my forth comming IPO- the dot com. "It's _the_ place to invest!" It'll be the biggest IPO to hit since Redhat's prehistoric IPO! It'll make billions! It'll make Sagans! (Billyuns and Billyuns)
And any insinuation that I, rightfull patent holder of the word the, might not be in the best interest of the society as a whole, is obviously instigating a communist plot to topple the markets, bankrupt millions of daytraders, encourage the illegal international piracy of the word the, cast the whole of civilization down into the depths of dispare and poverty and maybe even rend the fabric of this most noble country called The(tm) United States of America. For beautiful and sacred lies, for never ending gain... Opps, sorry, little flash back there.
Where was I? Oh, yeah, Natalie Portman- Naked and Petrified...
I think they are right.
However, I think the patent system worked, not because it encouraged progress by protecting a person's ability to commercially exploit an idea, but, by promoting the sharing of ideas. IMHO, the important bit that patents do is to force the exposure of secrets, to avoid the loss of knowledge that history tells us sometimes happens (anyone know how to build a pyramid, with stone-age tools?)
The commercial exploitation of ideas certainly was responsible for booming business. However, the air of inventiveness that was characteristic of 19th century America I think was due to getting the secrets published.
If we want to change the patent system, I think we should keep in mind that publication gives us intangible benefits, and so, any patent process, however flawed, has usefulness.
How to fix? In discussions with friends over the years I came up with the idea that patents have two purposes. 1) To promote the spread of ideas, and 2) to give the inventors a chance to recoup the costs of creating the invention. I know this isn't quite in line with the current ideas of what patents are for, but, that may be an improvement over where we are currently.
I think that a person or company should keep track of their costs in creating a particular idea. They patent the idea, publishing both their idea and the costs. For anyone to exploit this idea commercially, they would have to share the `cost' of developing that idea. The first `share-ee' would pay half to the original person/company, the second would pay 1/3 to be appropriately distributed between the first two, so that all three groups would pay the same fraction, etc.
In essence, the usage fees would be paid to the entire group of current `share-ee's making each of their costs less. As ideas become well used, the development costs would be spread over so many groups as to be unimportant. This fact alone should help stop the useless exploitation of `harrassment patents' You can only recover your costs in developing ideas. If your costs in developing the idea were very low, the sharing fee will be tiny, and so, people will be happy to pay it.
New good ideas would supplant existing ones with true innovation - otherwise, you would continue to use the existing, `cheap to license' technique.
With the above method, we loose the litigating sharks, we cover development costs (although very good accounting practices need to be adopted) and we publish lots of interesting ideas.
A comment overheard in a corn field `If you have better ideas, lets hear them. I am all ears.'
the /. community only ever gets exposed to those [patents] which are bad in their view. After all, it doesn't make much sense for Rob and co. to put a story up saying "Company X gets patent for invention they put time and money into", not when they want controversy in order to generate more ad revenue. In this sense, /. has become the Linux zealot's equivalent of the tabloids, which is a pity. Not true. Slashdot is a narrowly-focussed forum, devoted mostly to software. What's one area where the USPTO has just been forced to grant patents, and has neither a lot of expertise nor the body of prior art (usually defined as previously patented ideas) with which to judge applications? Software. It isn't at all wrong for Slashdot to be reacting to the rash of bad patents which come from this state of affairs, and the appropriate response is overwhelmingly negative. Which isn't to say that patents in other areas meet the standards either. There's a company which makes electronic compasses for cars which patented a location for the field sensor; nobody else is allowed to build a compass with the field sensor in an overhead console without paying them a royalty. This is so glaringly obvious to anyone who thinks about it for two seconds that there's no way it should have been granted a patent, but the USPTO did and at least one VERY large auto company refused to fight it. This does restrict innovation, and if I am asked to testify I will swear to it in court.
--
Time is Nature's way of keeping everything from happening at once... the bitch.
One of my co-workers points out that with out patents there is no driving force for research. At least for the little guy. Joe Blow working out of his basement creates an invention, only to find that three months later megacorp is producing his product. Joe Blow gets screwed. ...Of cource my co-worker also thinks Microsoft deserves to have have it's Monopoly, so take it with a grain of salt.
I will point out that even in our current system the megacorp will always win. I've personally worked at smaller companies that have had valid patents that were infrindged on by very large companies. All that happens is a bunch of lawyers sit in a meeting room and basically say "Yeah, we're pissing on your Patents, but we've looked at your finacials and you do not have the backing to sue us. Don't let the door hit you in the ass on the way out."
When you are a large company and have lawyers on staff it isn't hard to wage a patent war. If you're a small company you will be sucked dry by the lawyers.
It doesn't matter if you scrap the current system or keep using it. Money speaks in judicial system.
It is worth pointing out that the current patent and copyright system bares almost no resemblence to that which existed after the founding of the Republic.
In the 1700s, only a handful of patents were granted each year. The bestowing of a government monopoly was considered such an exceptional event that the Secretary of State personally approved each patent application.
As well, copyrights lasted for a relatively brief period of time, had to be registered by depositing an archival copy of the work, and had to be renewed or the copyright would expire.
So, it seems to me that there's a actually a good argument in the text of the constitution to say that the Congress' retroactive extending of copyright is unconstitutional. Last year, in the "Sonny Bono Copyright Act," Congress extended copyright to 95(!!) years, primarily in response to lobbying from Disney and other media companies.
The problem is that extending copyright retroactively doesn't encourage the arts -- the work has already been produced, quite often by somebody who is already dead! And, since the constitution allows Congress to institute copyright to encourage the arts, retroactive copyright extension doesn't do it.
Important for things like project Gutenburg.
Unfortunately the cause for copyright reform seems to have suffered a setback. Eldred v Reno which challenged the constitutionality of retroactively extending the limited time for copyright protection seems to have been lost. I don't know if it has been appealed. The core of the issue for all intellectual property protection remains: The creator is granted something "ownership" that they would not otherwise have, for a limited time, in exchange for this the public learns of the creation immediately and further the creator's newly granted rights expire and the creation returns to the public domain. Background: http://www.boston.com/globe/magazine/8-29/features tory1.shtml Discussion: http://cyber.law.harvard.edu/eldredvreno/legal.htm l Decision: http://techlawjournal.com/courts/eldritch/19991027 .htm
Personally, I think someone should sue Amazon for making it too easy to buy something. Picture the poor old 80 year old naive internet user tricked into buying something on Amazon. "I accidentally clicked the mouse ... once and they sent me a book" How can the average consumer expect to be safe from this aggressive sales tactic. Some consumer protection group should insist that Amazon add a confirmation page to every single click purchase so the consumer has a chance at "second sober thought" and doesn't buy something they don't want. We need additional legislation which kicks in if you purchase any product with a single click - a 24 hr "change your mind" rule like they have for door to door sales. I'm going to patent the "confirmation" click (one or more extra clicks) which cites the 1-click patent and adds a new level of "safety" to online purchases.
Because they're all (or many of them) into free as in beer software. Since patents generally cost money to be licensed, it prevents them from using the same technologies as proprietary software. That's at least what I think it is.
Your plan, like many, sounds fine in theory. The inventors get "rewarded" for their efforts. Whoopie. However, you are ignoring the very important relationship of risk and return. Just because you provide "some return" to the risk taker, the inventor, does not mean he will continue to take risk. These so-called monopolies happen to be a very efficient way to provide a high degree of return. Perhaps it is sometimes too high, but to propose that the government sets what is "fair" begs for the creation of a far less efficient system.
...but many proposals are unrealistic. There is always going to be disagreements and flaws in any system you create, that is human nature...] Many slashdot users simply fail to understand that not everything can be created like Linux (e.g., people working part-time in ragtag fashion). They seem to think that some panel of "experts", is a better decider of "value" than the market. Yet, if you talk to most any proven entreprenuer/inventor, they scoff at the idea of academics deciding value.... I've known numerous entreprenuers with proven track records to go in front of these "alternative sources of financing" boards (e.g., NIH, NSF, etc.) with great and truely usefull ideas, only to be rejected [or given peanuts] (not even for financial reasons, the money went to far less worthy projects)...only to be ultimately proven right. Lastly, one need look no further than the massive amounts spent by large and small companies alike to conclude that the _actual_ IP system works decently.
Furthermore, the mere fact that the government grants a "monopoly" on the idea for 17 years, does not mean the holder enjoys any such protection. In the vast majority of cases, competitors come out with equivelent products without having to go through the patent. So, if the effective life of the patent is only 5 years (actually quite high in many areas), it is all that much more important that the inventor ramp up his profits at the outset. To provide a smooth (or flat) "patent tax" tax, or one that is set arbitrarily by the government, might prove harmfull in two ways. If reward (read: tax x usage) are too low at the outset, this will lower the incentive for the inventor. Second, if it is too low, it may discourage the competing companies from trying to come up with unique alternative solutions of their own. Instead, they just "license" it as your "reasonable" fee. All in all, it would create a pretty apathetic system...perhaps not quite as bad as no IP, but significantly worse than what we have now.
In closing, the patent system is more necessary than it ever was. Sure, there are some abuses, but it is blown out of proportion by slashdot users. Slashdot confuses the mere existence of a patent, with the ability to profit and enjoy that protection. The patent office has been flawed for years, but the test is not the patent office, it is the courts. In other words, the granting of a patent does not mean it holds up in the real world, so to blow a few odd patents up as proof that "innovation" is now impossible is simply not true. [Yes, I agree the patent office has serious flaws,
In my plant case, it was using the assumption that patent times were harshly shortened (as many people would want for computer patents). As it stands currently, you're absolutely right; the guy that waits 20 yrs to benefit from public domain is losing 20 years of profit. On the other hand, if patents were only 5 years, there might be an advantage to waiting to turn on the system and make money without licensing fees compared with starting right away but paying it.
"Pinky, you've left the lens cap of your mind on again." - P&TB
"I can see my house from here!" - ST:
Okay, how about a couple of new moderations like "Me too"
There's already one: "Redundant"
"First post" "Not that goddamn Kevin Mtnick film guy again" "Not that goatse.cx guy again" "Grits" "portman"
"Offtopic"
"Insulting CmdrTaco"
"Offensive"
"Karma whore"
Possibly "Overrated" if at 3 or higher already.
Summary: If the text of a post does not relate to the article, the post is Offtopic and should be moderated as such. At least that's how I see it.
Will I retire or break 10K?
Now, I'm rabidly clueless about the requirements for something to qualify as Prior Art, so this idea could be entirely unworkable. But it's my general understanding that to invalidate a patent on grounds of prior art, you just need proof that someone thought of the idea before the person seeking the patent, not that they implemented it or even carried out the design to the degree of detail necessary to secure a patent.
Thus, my idea is this: why don't we have a website (priorart.org?) where you can go whenever you have a cool idea that you don't have the time, money, inclination or expertise to implement, and post that idea to the public domain? That way it ought to be trivial (or as trivial as the law gets) to invalidate a patent using one of the ideas posted there: just show that the idea is the same, and that the timestamp at the website was before the date of the patent submission. By submitting your idea to the site, you'd be placing it in the public domain, but you'd have the advantage of all the other people who read the site responding to it and possibly improving on it to the point where it's actually feasible to implement. On the whole, it sounds like a way to fight the patent system that's a whole lot more broad, less time consuming and less expensive than trying to maintain a GPLed patent portfolio (although I think that's a good idea too).
Of course (and this just demonstrates my point! Sort of.) I think there's prior art on the priorart idea. Or, at least, there are 16 websites with "priorart" in their names. priorart.org is taken, but I timed out when I tried to go there; I didn't take the time to check out all the other ones, so I dunno if they're using my idea or not.
But it's a good idea, though, isn't it? Isn't it?? What do you guys think??
The problem is that we ask the question "Do patents work?" as if there is only one answer.
The question should be "How can patents work, if they should exist?"
Copyrights should be changed back to the old system, with stronger protections for the artists who create them, and Copyleft should be added to the legal definitions. Granting a Net use of a copyright should not imply a non-Net use of the copyright, for example.
Patents should be divided in a bifurcated system of Physical Patents (with the old 20 year period, non-renewable and non-extendable) and Software Patents (with a five or seven year period, non-renewable and non-extendable). If a company wants a longer period of protection, tough. It's Web Time, baby!
Will in Seattle
Note that my proposed changes are in line with the US Constitution, which is purposely vague as to the form of Patents and Copyrights.
Will in Seattle
Luckily, I'm not a patent attorney or a lawyer. Although my brother and my uncle are lawyers, doing corporate law in NYC.
We're saying that patents for software of 20 years with renew rights are nuts. Having a software program be patentable for 5 years is really stretching it, given the history of computer software and OS. Copyrights are more defensible, but 95 years is totally out to lunch.
And the bugaboo of being out of work shows that you don't grok tech - if it was true, how could Open Source be as successful as it is?
Will in Seattle
OK, I know I'm gonna get flamed big-time for this, but here goes... For the sake of my point, I am disregarding for the moment the current worst practices of patent law, such as trivial software and business method patents. I am only thinking about the theory that underlies the patent process. So please don't mention Amazon or any other current anecdotes in any flames aimed my way. Think about the theory underneath all this drek, the theory that led our founding fathers to put that clause in the Constitution in the first place. In my opinion, that theory is the same idea that underlies Open Source! If you open up technology for others to look at it, you encourage advancements that would never have happened otherwise. Clearly wonderful things like Linux could never have happened without the Open Source process. Likewise there are many inventions that have become revolutionary, and spawned many other further innovations, that would never have seen the light of day were it not for the patent process. The purpose of patent law is to act as encouragement to inventors to disclose what they have done. Without patent law in place, inventors are practically required to keep their inventions secret. If you don't, someone will steal your idea. If that someone happens to have more capital or better connections than you, you're screwed. So you keep it a trade secret and hope nobody reverse engineers what you are doing. Do I need to explain that this is a bad thing? Suppose someone invents a limitless power source that would forever solve our energy problems. Without patents, they would have to keep this a secret. Now suppose they screw up their business and go bankrupt. A priceless technology could go completely to waste, lost in the mildewing estate of a bankrupt inventor. Patents break this cycle in the same way that open source does. In fact, patents do it better than open source because they grant special rights in exchange for the disclosure. You don't get much in the way of immediate tangible benefits by open sourcing your product. But you do get an immediate, tangible benefit for a patent. By granting exclusive rights to the inventor for a limited time, patents encourage inventors to disclose what they have done. This disclosure helps other inventors innovate by adding to the published literature. And of course, once the patent expires, the invention is free for all to use, with the exact instructions on how to do so on file with the government. I find it highly ironic that some of the biggest opponents of software patents are the same folks who push open source. Because in my mind, the fundamental motivation of both of these ideas is the same thing. That is: open technology up for the good of society.
Sorry for the paragraph from hell. I swear to god I previewed that post, and it had great formatting in HTML. Then for some reason the post interface threw it all away. That's the second time its done that to me.
I thought that I'd mention a fact that I'd seen that has relevance here. I think I saw it in "Isaac Asimov's Book of Facts". The source stated that it is estimated that 90% of all scientists in the course of history are alive today. In other words, scientific development is at an all-time high. Therefore, it seems to make sense that there would be many more patent applications than ever before.
Okay, I'll extend the statement above one step further: intellectual property and open source have the same goal. Copyrights, as well as patents, encourage disclosure of information by protecting the author. Seriously. Intellectual property law is supposed to promote the sharing of information by guaranteeing compensation for the author. It does so by giving the author/inventor a monopoly on certain rights related to the work. Basically, intellectual property and open source are two different attempts at solving the same problem. Intellectual property law is a capitalistic approach (guarantee them money, and they will build it). Open source takes a different approach, roughly related to "to each according to his needs, from each according to his abilities" (I'm quoting from memory, ask me if you want the source). Neither is perfect. I personally am intrigued by the idea of some form of government tax funding innovation (and yes, I am an academic researcher currently). I believe Stallman alluded to this idea.
Joe Blow working in his basement would not go for a frivolous patent because for him patents are damn expensive. Nor could he afford the cost of taking a frivolous patent to court on either side. OTOH, Joe Big Corporation will have no worries about patenting, say, printf (Excuse me: A Method Of Formatting Arbitrary Strings of Characteres in C) on the off chance that if they threaten to sue 100 people, a couple of them might settle because it's still cheaper than going to court.
I'm trying to teach myself to set people on fire with my mind... Is it hot in here?
Patents were first implemented to prevent tradesman and craftsmen from hiding their technology. Remember that from the 15th century to to the industrial revolution, trades like metalurgy kept the secrets of their trade, to prevent the common man from competing against the established brotherhood of trades. The Patent was an attempt from the government to force the technology out of the trades and into the common man's hands. A concession was made with each discovery, that the trade could own the monopoly on it for a number of years, which at the end of the term it would be become public domain. It worked very well, and was probably largely responsible for the industrial revolution. Today, with Capitalism running better and freer that ever, and the fact that no company can really keep a secret, the Patent is a legacy idea, that no longer serves us at this time, when transparency is at an all time high. The King is dead, long live the King.
Which ones?
Eldred v Reno which challenged the constitutionality of retroactively extending the limited time for copyright protection seems to have been lost. I don't know if it has been appealed. Yes, it is being appealed now in the D.C. circuit. Written briefs on both sides are being filed and oral arguments will be heard in October, then it's on to the Supreme Court. See http://cyber.law.harvard.edu/eldredvreno and add comments to the OpenLaw page. We have a good chance at winning, but we will need help in the form of amicus briefs before the Supreme Court. The core of the issue for all intellectual property protection remains: The creator is granted something "ownership" that they would not otherwise have,.... More or less correct, but the concept of "ownership" is not a good one to emphasize here. Better to say, exclusive rights as the Constitution says. "Ownership" implies too many natural rights, instead of the limited monopoly the Constitution allows. Ken is correct that the patent problem is part of the larger problem of "intellectual property" in the digital age. Some solutions could apply to both. It is also time to experiment with better ways of treating patents and copyrights.
Eldred v Reno has been appealed. The judge who heard the case wrote an extremely poorly thought out and nearly indefensible opinion. My impression on reading his decision was that he either didn't take the case seriously, or that he basically punted the case to the appeals court, possibly because he was afraid of the tremendous consequences of making even the smallest finding in favor of the plaintiffs.
The "problem" with this case is that if the judge were to accept the premise of the suit -- that retroactive extension of copyright is in and of itself unconstitutional -- then logically, ALL retroactive extensions of copyright would be also unconstitutional. Removal of all retroactive copyright extensions would place all works created prior to 1944 in the public domain, and restart the currently-stopped copyright clock, with tremendous political consequences, since the most powerful and influential corporations in the world are film studios, record companies, and especially media corporations, which obtain much of their power and income from their extensive copyright holdings.
In other words, he tossed the hot potato to the appeals court. I fully expect this case to go all the way to the Supreme Court.
Josh Lerner at Harvard Business School has studied the economic affects of patents (see http://www.people.hbs.edu/jlerner/P atintro.html and associated links. He concludes that there are many indirect costs of patents and discusses the "concern that the pattern of costly litigation--or payments to forestall litigation--are leading to reductions or distortions in innovative investments, particularly for small firms." In his study of small biotechnology firms, the trend was to protect research by trade secrets instead of patents, mostly because of the costs (it costs more than $1 million to defend a patent). Obviously, the public loses when the research is made a secret instead of openly disclosed. Nobody else can build on the work and improve it, and when the patent period expires the secret is not disclosed. Since much innovation is achieved by the small firms, this trend is disturbing. Remember, the purpose of patents according to Article I, Section 8, of the Constitution is "to promote the progress of science and the useful arts." It seems to be time to rework the patent system from the ground up, to try to achieve the original objections in a better way.
A few decades ago, only about 25% of the patents applied for were actually granted, and, even under those circumstances, Supreme Court Justices complained of such things as patents for "gadgets that obviously have had no place in the constitutional scheme of advancing scientific knowledge." These days, patents are granted about 75% of the time. The patent examiners seem completely satisfied to let the courts judge patentability only through the course of expensive infringement suits. Technical innovators in all fields are routinely advised by their lawyers to not read any patents in the areas they are working in, lest they increase the risk of being sued for willful infringement. With patents going unread by those who advance technology, how is the patent system promoting progress?
A lot of people have been repeating the theory of why patents work without providing concrete examples. It's easy to say that pharmaceutical research would suffer without patents, but it's practically impossible to prove. Have any studies been done which give us anything close to a clear idea of what the world would be like without patents?
ps - My Slashdot userinfo has my correct email address, but the link in my original question (submitted some time ago) is an old one.
Some people seem to forget that Albert Einstein was a patent officer while he developed special relativity theory.
If Einstein had paid his full attention to boring patents we wouldn't have a great new physics theory.
Therefore we should celebrate stupid patents as a sign of our talented patent officers spending increasingly more time on some really significant research. This might hurt us short-term a little bit, but long-term it will be more beneficial for humankind.
IMO, Patents are even more necessary now that they ever have been. Granted, the patent process may need some revision. Patents exist so that the "weak" can create an invention and then have a grace period during which the "strong" can't touch them. This gives the little guy a chance to develop and market his product before the big guy comes in and stomps all over him, stealing his idea and developing it/marketing it with a larger financial backing. And I think patents should apply to software that does something new. Code is just a set of gears and pullies that, when put together, preforms a task. Just because that task isn't in the "real" world doesn't change the fact that it does something through innovation. Right now, me and 6 other people are starting an internet service for the construction industry. It is unique and useful. We started the patent process several months ago on the "way of conducting business" I beleive is the catagory. We aren't doing this because we're selfish and want to push aside the little guy. We ARE the little guy. We have nothing but the free labor of the seven of us in the evenings after our "day jobs", a little bit of investment money, and one guy who is using all of his credit cards. We know this idea will work, but we're so afraid that someone with more money, equipment, programmers, advertisers, etc. is going to see our idea, jump in, start their own site, blow $50 million on the thing, before we've even sold 100 people. The big guys have that power. Isn't that why we all hate Microsoft?? For doing this kind of thing? The sad part is, Patents won't stop this... They only slow it down. The truth is, if a Microsoft or AOL saw us, and wanted to blow us out of the water, they could drain us through legal fees, general stress, buying off members of the board one by one, etc. Or at least they could try. But this isn't a new problem (see Tucker (who failed) and Edison (who didn't)), it's only gotten worse in this age where everyone is a big-corporate monopoly. Patents (should?) help the little guy get going, to hold back the wolves so the little guy has a chance. If all little guys out there knew for a fact they didn't have a chance, they would never innovate... That's how patents promote innovation.
The purpose of a patent or copywrite is to protect the commercial value of an idea, invention, or written product. It does not, in an of itself, limit innovation. What it does do is insure that the innovator has the opportunity to realize some income from the idea. Not a bad concept for the individual with the idea. Not a bad concept for a corporation, such as Lucent or Intel that spends a billion dollars a year on research.
It seems to me that in some cases, a defense for the violation of a patent could be defended by saying the patent was unjust (as said in the Constitution because it did not promote progress) in the first place and so void. Second, I'd like to ask why products are constantly touted as "patent pending." While this may try to make it seem unique and innovative, it seems to me that it just makes the company patenting another stupid thing that doesn't deserve a patent.
Chris Hagar
"The price of freedom is eternal vigilance." - Thomas Jefferson
Isn't the best reason for having a very broad patent policy that, if we don't others will? Isn't the United States protecting its intellectual property by being very broad rather that allowing the furriners to get it all?
sarchasm: The gulf between the author of sarcastic wit and the person who doesn't get it.
"I will point out that even in our current system the megacorp will always win. I've personally worked at smaller companies that have had valid patents that were infrindged on by very large companies."
Did they purchase patent insurance? There are policies that the Insurance company pays all of your lawyer fees, but gets to recover their costs, plus a percentage of the damages.
It seems much less likely that the big company is going to infringe in such a situation...
LetterRip
It seems to me that the Constitution is quite vague about the power it gives Congress with respect to copyright. What is a limited time?
It doesn't explicitly give Congress the power to retroactively extend copyright terms, but it doesn't explicitly prohibit it either. You have any idea how the courts have looked at this kind of thing in the past? Doesn't it mean that the power goes to the states if it isn't specifically given to Congress by the Constitution? Or have they used the "interstate commerce" wildcard again? Btw, I've forgotten what amicus briefs are. Fill me in?
It's not enough to bash in heads, you've got to bash in minds. - Captain Hammer
2. We cannot just tinker with these systems, but must treat them with profound respect (even if they are broken) because huge amounts of money and acclaim could end up going to people who don't deserve them, while innovators who do deserve them could get screwed. You could not be further from the truth, the problem is the concept of "intellectual property" is flawed at the very core. All the other painfull side effects we see are just symptoms of that core belief. It reminds me of the people who saw that the institution of slavery as just needing minor tinkering to patch up the flaws while blatently ignoring the fact that it is inhumane and barbaric by it's very nature. Ironically, they called slavery a property right, but it wasn't - it was a controll on human behavior for the sake of maintaining status quo wealth that was unsustainable over the long term. The same is true of patents, they controll what I can do with resources I have even though nothing I do will take from other peoples resources. It might deprive others of a monopoly, but sorry that isn't a right. Patents are a lie, innovation has been progressing at a steady state for over 10000 years with and without them. And they don't take into account the naturally progressive inter-dependent nature of technology. While GM may only be days behind on a safety device, if Ford patents it first they may lock them out for 20 years while statistacally more people die in GM cars. While a pharmacutical may know of a potentially promising simple cure, the board decides to focus their research on a more risky cure with lots of harsh side-effects because it can be patented. Patents literally cause people to needlessly die. I for one, am sick and tired of discussions questioning if patents should or shouldn't exist rather than figuring out what we need to do to get rid of them. They are not a property, but a controll. They are not an incentive, but an inhibitor. As technology becomes more important, it is only a matter of time before this beast we created will rage out of controll to the point that either we ot it must die.
sorry about above. HTML formatted .....
You could not be further from the truth, the problem is the concept of "intellectual property" is flawed at the very core. All the other painfull side effects we see are just symptoms of that core belief. It reminds me of the people who saw that the institution of slavery as just needing minor tinkering to patch up the flaws while blatently ignoring the fact that it is inhumane and barbaric by it's very nature.
Ironically, they called slavery a property right, but it wasn't - it was a controll on human behavior for the sake of maintaining status quo wealth that was unsustainable over the long term. The same is true of patents, they controll what I can do with resources I have even though nothing I do will take from other peoples resources. It might deprive others of a monopoly, but sorry that isn't a right.
Patents are a lie, innovation has been progressing at a steady state for over 10000 years with and without them. And they don't take into account the naturally progressive inter-dependent nature of technology. While GM may only be days behind on a safety device, if Ford patents it first they may lock them out for 20 years while statistacally more people die in GM cars. While a pharmacutical may know of a potentially promising simple cure, the board decides to focus their research on a more risky cure with lots of harsh side-effects because it can be patented. Patents literally cause people to needlessly die.
I for one, am sick and tired of discussions questioning if patents should or shouldn't exist rather than figuring out what we need to do to get rid of them. They are not a property, but a controll. They are not an incentive, but an inhibitor. As technology becomes more important, it is only a matter of time before this beast we created will rage out of controll to the point that either we or it must die.
Patents are only supposed to be awarded for inventions that would not be obvious to an expert in the field. Doesn't that mean that every patent should be REQUIRED to be reviewed by an EXPERT in the field, as well as having a prior art check done? Seems like all they do now is a quick prior art check and then award the patent. This goes entirely against what the patent system was supposed to do for us. We're now being prohibited from using obvious techniques and business methods. This is part of what is so screwed up about the patent system.
It's not enough to bash in heads, you've got to bash in minds. - Captain Hammer
Science and arts and business will be just fine on their own now, thank you. They're all grown up and can stand on their own two feet.
The argument that "Oooh -- it costs so much to do research -- you'd better guarantee us a return" is so lame it makes me sick. I've seen how these drug companies spend their research dollars. They buy FDA officials. They buy researchers. They buy clinical results. They throw money away and then whine that their expenses are so high that they can't live without a 20 year monopoly.
When social useful end results are desired, but too expensive to be profitable, one of two things usually happen. The government does something on behalf of its citizens or the citizens organize a collective effort to accomplish that goal. Even competitors in business cooperate when the development costs are high. They form consortia. If enough companies join a consortium, there would be no significant free riders. That's what happens with standards bodies. As long as enough players play by the rules, the job gets done.
What makes this approach impossible in today's world is everyone's total lack of civic-mindedness and cooperative spirit. "Government is our enemy!!" is the rallying cry of the libertarian. People say to themselves "My God, it's a mad rush to see who can eat the most at the banquet table. I'd better gorge myself but fast!". Take all you can get. Don't worry about the next guy. In fact, do everything you can to screw the next guy up. Make his life miserable so that you can be the happiest person on the block. No one seems to want to have public anything anymore. They dismiss proposals for joint effort as "art by committee" or "sure to be inefficient, just like the rest of the bureaucracy". People think that society is just a perpetual motion machine that requires no effort at all to maintain. They whine about taxes, they whine about welfare, they whine about lawlessness. Suspicion is the most important skill. Trust no one. "Why should I contribute if I get nothing in return?" people ask. The answer is you have been freely given the ability to ask the question. That is probably more than you deserve.
Mean-spiritedness fills the air. Television celebrates wretchedness with the likes of "Who wants to be a millionaire" or "The jerry springer show". If someone wants to contribute, they should do so by all means. But don't sit there with your hand out expecting us to put you on a pedestal and provide for you just because you are a "genius" or "auteur" or "artiste". Getting paid for your time is all that anyone needs. Time is the MOST limited resource of all, and therefore the most deserving of reward.
Yeah. Patents are the wrong question.
The murkiness of the criteria makes the line very blurry. People in the patent office trying to apply it to individual patent applications must be so perplexed that they are easily swayed by factors other than the law. They are swayed by the demands of "clients" because they have no clearer limit imposed upon them.
The following is a summary of over three years of patent litigation.
.gif) which are stored on the client server. The defining specification for Web software is the HTTP specification. In that specification, there is a command called the "Conditional GET". This command causes the revision level of a graphic file to be checked and if there is no later version, the local stored version is used. The HTML, .asp, or Java Script is downloaded each time. These files cause the variable data, typically text, to be downloaded each time as well. These files also contain the mapping features that control the integration of Web page graphics and text.
1 .txt i ng/620/1999/papter.html
Understanding the Hill '490 Patent
And
The Potential Impact on the Dot Coms
By
Charles E. Hill, CEO
Charles E. Hill & Associates, Inc.
6435 Castleway W. Dr., Suite #141
Indianapolis, IN 46250-1940
(317) 849-9808
Patent #5,528,490 (The Hill '490 Patent)
Patent litigation case (IP97-C-0434-M/S Charles E. Hill & Associates, Inc. vs. CompuServe, Inc.) is beginning its fourth year through the judicial system. The subject of this case is the Hill '490 patent which was filed April 10, 1992 and issued June 18, 1996.
Understanding the Time Relationships
The time line shown below is crucial to understanding how the Hill '490 patent and Web software intertwine.
1. June 12, 1991 - Tim Berners-Lee introduces his www browser at a computer seminar hosted by CERN. It is text only and links to and retrieves external text documents.
2. November 1991 - First production model using the technology of the Hill '490 patent was installed.
3. April 10, 1992 - Hill '490 patent filed.
4. August 18, 1992 - The technology of the Hill '490 patent was evaluated in CompuServe's product development laboratory at Columbus, Ohio and certified as compatible with their communications network.
5. April 1993 - Version 1 of the "Mosaic" browser from NCSA was introduced. This included the integration of text and graphics. There was no updating feature.
6. February 11, 1994 - The W3C introduced the concept of the conditional GET command and the "Last Modified" date that is being used as a revision level for HTTP. This implemented the updating feature.
7. June 18, 1996 - Hill '490 patent issued.
8. March 1997 - Patent infringement complaint filed against CompuServe, Inc.
The technology in the '490 patent was developed as a result of a requirement for distributing data sheets by USEM, a division of Emerson Electric. The unique features of the software were the division of data into subsets of "constant' and "variable" data, the updating of the "constant" data on the client server, the integration of the "constant" and "variable" data at the client server, and the use of a map to define how this integration occurs.
The division of data into subsets of "constant" and "variable" data significantly reduces bandwidth requirements. In the specification of the '490 patent it was estimated that you could expect an 80% reduction. The document "Saving Bandwidth Using the Technology of the Hill '490 Patent and the Resultant Economic Returns to the ISP" describing the network savings that CompuServe is presently benefiting from suggests a savings from 58% to 94% or over $300 million during fiscal 1999 alone. This document is available upon request by calling 1-800-805-6531.
These features are all duplicated in the Web browser and server software. The "constant" data is typically the graphics files (.jpg,
As noted from the above time lines, the original browser by Tim Berners-Lee was only capable of downloading text files. This was disclosed at a computer seminar June 12, 1991.
Marc Andreessen and associates at NCSA, and the University of Illinois added graphics and the integration of text and graphics to Tim Berners-Lee's browser in April 1993 and introduced it as "Mosaic".
It was not until February 1994 that the "Conditional GET" command was introduced by the W3C. By adding this feature, the browser software duplicated the steps of claim 1 of the '490 patent.
The Hill '490 patent, although filed in April of 1992 did not issue until June 18, 1996. By that time, Jim Clark had financed the startup of Netscape and Jim Barksdale did a brilliant job of marketing its browser, Navigator. Microsoft then developed their browser after licensing "Mosaic" technology from Spyglass, Inc. which had earlier purchased the licensing rights to "Mosaic" from the University of Illinois and NCSA. Microsoft began dominating the browser market by giving away its "Internet Explorer" with the purchase of its software.
Additional Time Lines of Interest.
1. 1994 - Spyglass purchases licensing rights to "Mosaic" from University of Illinois.
2. 1995 - Microsoft licenses "Mosaic" technology from Spyglass and uses that technology to develop Internet Explorer.
3. 1995 - 1996 - AOL and CompuServe license Microsoft's Internet Explorer and integrate it into their respective software packages.
The above time lines are factual. The Web software came after the Hill '490 patent application.
The Litigation History
During the summer of 1992, CompuServe representatives visited the Hill offices multiple times. There was interest expressed for a joint marketing effort in which CompuServe would provide the network communications and Hill would supply the electronic commerce application software.
During August 1992, CompuServe evaluated Hill's software in their Columbus, Ohio product development laboratory for compatibility with their communications network. Certification was given on August 18, 1992. Shortly thereafter, all communications were terminated.
Starting in late 1994, IBM showed an interest in the Hill technology. Several phone discussions, a demonstration during December 1994 and another demonstration during August 1995 took place. Although the IBM representative expressed a genuine interest in the technology during the August 1995 demonstration all communications were terminated shortly thereafter.
Communications with IBM and CompuServe were re-established during the period when the Hill patent was being issued. CompuServe management refused to meet for any discussions. The patent litigation complaint against CompuServe was filed during March 1997.
Discussions with IBM were eventually assigned to its legal staff. These communications ceased in September 1997 due to the litigation with CompuServe.
CompuServe filed a counter suit charging that the Hill suit was frivolous. Motions have been filed to dismiss their counter suit.
Since the June 18, 1996 issue date of the Hill '490 patent, four additional patents (#5,754,864; 5,761,649; 5,970,471; 6,029,142) have issued with others awarded and pending. Hundreds of cited references submitted by CompuServe and IBM as prior art have been reviewed by multiple patent examiners during the prosecution of these patents with none acknowledged as prior art. These additional patents add claims in the area of software piracy, updating, image overlays and data requests.
The Markman Hearing was held on January 6-7, 1999. The purpose of the Markman is to allow the Judge to determine the meaning of specific words used in the patent claims. . CompuServe's 400+ slide presentation was not allowed to be admitted as evidence during the hearing. CompuServe also failed to have an expert witness testify. Yet, CompuServe stated to the press that they won the Markman completely. Mr. Hill contends that the issues were mainly decided in his favor as a result of the preponderance of admissible evidence offered by his attorneys and his expert witness. The judge's ruling is contained in a 56-page document that is available from the court.
CompuServe has filed summary judgment and other motions, which has delayed the trial date for approximately two years. Delays of this type are common when large companies are litigating with small companies. Hill believes CompuServe has virtually no chance of winning any of its motions.
Settlement conferences ordered by the Court, were held on November 10, 1999 and March 23, 2000. The settlement discussions broke down when CompuServe was unwilling to offer damages commensurate with the network savings it is believed they are presently benefiting from as a result of the technology of the '490 patent.
The Court has recently reset the trial date from April 10, 2000 to January 22, 2001. The Court's official reason for the delay was due to various open motions. However, Hill believes the excessive delay was punishment for his refusal to accept CompuServe's offer at the March23rd settlement conference.
Information on this litigation can all be found on the Court site listed below.
http://www.insd.uscourts.gov/caseinfo.
Other Observations
1. AOL paid over $10 billion for Netscape and its technology. Netscape's technology came from NCSA and "Mosaic" which is believed to be infringing on the claims of the '490 patent and follows in time the '490 patent.
2. AOL subsequently sold and/or bartered the Netscape technology to Sun Microsystems.
3. According to press reports, Mr. Andreessen received options from AOL worth over $100 million when they purchased Netscape.
4. AOL has never reported this litigation in any of its SEC filings. In their January 14, 2000 8-K filing they specifically state that neither they nor any of their subsidiaries have any pending litigation that could materially affect their business.
5. CompuServe did not report in their original IPO prospectus that this potential patent infringement existed although Hill's legal counsel had advised them of it.
6. It is questionable whether H&R Block advised WorldCom of this litigation when they sold CompuServe to them for $1.2 billion.
7. WorldCom may not have advised AOL of any of this litigation when they swapped assets in February of 1998.
8. As reported by their respective SEC filings, AOL and CompuServe both integrated Microsoft's Internet Explorer into their respective client software.
Many leading companies such as AOL, IBM and Microsoft have been advised of the '490 patent and the possible infringement of their applications. Ultimately, the court will decide this land mark case and its potential impact on e-commerce activities.
C.E. Hill, March 31, 2000
Link to sites with information on Hill patents:
http://lpf.ai.mit.edu/Patents/ipns/ipns-1999042
http://www.cs.arizona.edu/people/collberg/Teach
http://www.udayton.edu/~lawtech/cle99-hayes.htm
The small guy has every opportunity to protect his/her intellectual rights. Take for example this patent granted last week.
http://biz.yahoo.com/bw/000413/tx_ kernel__1.html
Its for software that allows someone to obtain a patent without the need for an attorney of huge legal fees. The first patent ever granted for an invention that writes a patent!
You have the right to get a patent. Exercise it!