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Too Many Patents as Bad as Too Few
NonSoftAntiCurve writes "Forbes.com has an interesting article about how too many patents are as bad as too few when it comes to incentives for innovation. 'The tension between the patent as a way to stimulate invention and the patent as a weapon against legitimate competition is inherent in the system.' There is a scary example of how this plays out in practice."
If you do not have enough laws, you would end up with chaos. If you have too many, then you are oppressing the people.
All in moderation, as one smart person said.. but I'm too dumb to remember who said it.
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If God had meant for us to be naked, we would have been born that way.
A multitude of laws is a sign of a sick nation.
So it is that a multitude of patents is a sign of a sick economy, IMHO.
I know of a medical researcher making great progress on a wonderful device that might eventually be implanted in many people. He notes that there is one problem he needs to solve, a problem with the body rejecting one of his materials. Someone else has solved the problem, but they've got a patent on using the material that they use, so he's got to find a different one that works almost as well or better. Would be a shame if many people wound up walking around with a second-best material inside of them.
Last year in a show of how easy it was to disrupt and abuse the patent process by registering a common, every-day idea a Melbourne lawyer patented a "circular transportation facilitation device" with more info on the story here, here(pdf file), and here
Obviously it's too easy to get things patented these days, especially in areas of high technology as few if any patent officer workers are well versed in the areas of technology. Most of the patent office stampers would have little inclination as to how an intigrated circuit works or if an item of software recently designed is any different or unique from any other piece of similar software.
Sure, it's nice to be able to patent and protect your inventions and innovations, but when most of today's patent holders are larger corporations, it's hardly meant to protect the garage inventor anymore.
Duris MUD - The best pkill MUD. Ever.
Nothing in this article is news except for the source.
This isn't RMS, it's a patent attorney writing in Forbes.
I think I'll stay in tonight. Surely, there are pigs flying about.
It certainly appears from this Supreme Court opinion, written over a century ago, that the US patent office was already out of control. Sad to say, things have only gotten worse. Thanks largely to the League for Programming Freedom (yes, I'm a member), software patents have gotten at least some of the notoriety they deserve. But the more patents I read, the more I come to the conclusion that things are just as bad in the more traditional hardware areas. It seems that every day somebody finds a patent that just makes everyone's jaws drop open in utter astonishment. Here's one I just discovered: US patent 5,443,036 covers the use of a laser pointer in playing with a cat. Check it out; this is not a joke, unless you consider (as I do) the entire US patent system to be one very sick joke.
To their credit, in 1994 the Patent Office put out a call for comments on "obviousness" standards for patents, asking if perhaps they have been inappropriately lowered. (Is the Pope Polish? Are your taxes too high? Does a bear...well, you know.) Here are the comments I filed in response. Naturally, they were ignored.
Recently a Slashdot reader hit on a brilliant analogy that ties it all together for me, and I'm not even a bearded linux hippie: patents, he said, are merely a form of industrial pollution. After all, both pollution and patents are economic externalities that can enrich individuals or companies at the expense of society as a whole. And both are often defended as economic necessities. At one time, society celebrated the belching black clouds of smoke and soot from steam locomotives, power plants and steel mills as signs of progress and economic prosperity, but this changed. I fervently hope that I live to see a similar sea change in public attitudes toward the patent system.
The theory of relativity doesn't work right in Arkansas.
According to the article, this is no longer the case because the nature of the USPTO has changed in the past couple of decades. If that is the case, fine. Reform the patent office.
But what if that is not the only factor? What if technology has gotten too advanced for any practical patent system to work anymore? What if genuinely new ideas can only be separated from the mass of old obvious ideas by the experts in the fields? It used to be that someone with a B.S. degree had a good chance of deciding whether or not a patent should be granted. If a doctorate is needed, can the USPTO sustain that? There is no way they could hire enough good people for every field. The people they would need are the people who should be out inventing. Maybe patents on IP have become impossible. Now there is a brave new world for you. I'm no rabid slashdot IP ranter either (you can be the judge though). I support a good patent system. But this article got me wondering if it is possible anymore.
Explain to me how a company with programmers on its payrool, and that supports open source can protect itself against code/ideas thieves if they don't patent their ideas? I just try really hard to understand what is the right balance between using open source to free users from proprietary software and still being able to have some ways of making a buck or two by protecting ideas. Very curious about you guys's answers.
PPA, the girl next door.
-- I feel better now. Thanks for asking.
Isn't this always the problem? I mean, every problem? We can't live without something, but we can't have too much of it: Patents, seratonin, oxygen, laws, protein, etc, etc, etc. Hell, probably half of the discussions on Slashdot could be resolved by realizing that a middle ground equalibrium point needs to be reached.
Sadly every time a new subject is broached, two factions arise with the same redundant "yes but" arguments. And you always have the brave few trying to reconcile everything. But it's always pointless. After a point all the damn DeCSS/MPAA/RIAA/DMCA topics look the same.
The core of the problem: there is no concrete value of optimality that can be stated that is true in all infinite cases.
Examples:
How many patents should we allow?
How much protein should we eat a day?
How many rights does a corporation have?
What is music when you despise all sound?
Actually, too many patents are **WORSE** than too few. Especially if they are broadly interpreted. Especially if they are expensive in time and money to challenge.
Most of the patents that I've encountered recently seem to be of the sort that violate the basics of patent law. Prior art, trivially obvious, etc. But nobody can challenge them because it's too expensive. It can tie you up for YEARS, even if you can afford it (and we're talking millions here, when you count the appeals and all).
Plus, of course, you don't know *when* they will decide to drop the shoe on you. And when they do, if they win they'll be able to collect all of your profits, and then some, as damages. Unless you devote the time and effort to fight them at a time of their choosing, and frequently in a court of their choosing (though that's a bit limited).
The patent system is so broken that we would be far better off without any patents at all. It needs to be started from scratch, and not have *ANY* of the patent lawyers or members of patent cartels be allowed to take part in the redrafting of the laws. (Yeah, fat chance, I know. But that's what's needed.)
I think we've pushed this "anyone can grow up to be president" thing too far.
The first part of the answer is: most companies with programmers on the payroll don't make any money selling the software or enforcing patents. Most software is developed for in house use or to solve a particular problem for a specific customer. So only the minority of companies need to worry about this at all.
If you're releasing under the GPL, your competitors will be unlikely to take your source. If they do, they either have to release their source back to you so you can take their improvements, or they're infringing copyright and you can sue them.
As for "stealing ideas," an even smaller number of companies develop any ideas worth patenting. Most software which is sold uses well understood, non-patentable techniques.
As for stealing your ideas, so what? Companies like Cygnus and Red Hat managed to do alot of business selling a product that wasn't patented. Only recently did Red Hat start getting defensive patents. There are other things to sell beyond a monopoly on an idea. Most notably, if you had the idea first and developed it to fruition first. Who is going to be able to have the first to market advantage? You. Who is going to be in the best position to push the idea to its limits and maintain the cutting edge? You.
Will the elimination of software patents reduce the profitability of some software companies? Certainly. But it will be a very small number of companies. Those companies will still have some advantages in the market. And if the market grows and competition increases as a result, maybe it's a good idea.
IMHO, the biggest (perhaps the only?) problem with patents, is that the duration is not a function of the development cost. If a company really does spent a gazillion dollars developing something, then maybe a 20 year monopoly makes sense. Or maybe 40 years. Or maybe one year. But that's not how the system works.
And that's reason software guys, in particular, bitch about patents so much. (And it's not just Free Software guys. Commercial developers of less-than-megacorp size are going to tend to hate patents as well.) We happen to work in a realm where development is so ridiculously cheap, that the arbitrary hard-coded duration is completely inappropriate and senseless.
As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.
While the slashcode wouldnb't let me post the transcript...go HERE and get the whole text!
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http://www.intriguing.com/mp/_scripts/peasant.t
Before coming to my senses, I was a patent attorney. The story described in the article where IBM was on a shakedown mission rings true. I have seen both IBM and Lucent use exactly this technique many times (including with clients of mine).
They don't really mind when you show them that your client doesn't infringe. They are perfectly willing to go get another bunch of patents and make you go through those. Understand what is going on here: the patent attorneys take a lot of time going through all these patents to show that they don't apply. Lawyers are expensive -- eventually the client realizes that IBM or Lucent isn't going away, and they pay up. Mind you, in all of the cases I have direct knowledge of, there was never any reason to believe that any of the patents were infringed. They seemed to be a random assortment that were generally in the same technical field as the victim company. But the result is always the same -- a payoff to the 800 pound gorilla.
It is sick, but true.
By the way, the author of the article used to work at the firm where I got my start (Fenwick & West). He got booted for being too much of an asshole -- and among lawyers, that is saying a lot. Wired did a cover story on him back around '97.
-Steve
Democracy is a poor substitute for liberty.
Reading the article, it occurred to me that this might be a self-correcting problem; but then I thought a bit more and decided it wasn't.
.gif files) was filed in the mid-eighties, and will be expiring in another couple of years.
My reasoning went like this: IIRC, patents granted in the U.S. provide protection from competition for 11 years, and may be renewed, but not indefinitely; hence the Unisys patent on LZW compression (used in
Once a patent has expired, that's it -- you can't re-patent it, and neither can anyone else. So logically, if people are currently filing zillions of frivolous patents now, that means in twenty years it will become considerably more difficult to file frivolous patents.
But then I sat back and thought "No, in twenty years they'll be filing a whole new set of frivolous patents on technologies that don't yet exist; and nobody will care about all those frivolous patents that they filed way-back-when."
A problem like this -- too many patents filed -- would be self correcting in an era with a more stable technological basis. When the innovation rate is slow it's a lot easier to make a patenting system work well; incremental changes are a whole lot easier to evaluate for patentability. This is why the USPTO did so well for its first couple of hundred years; innovation was definitely going on, and fairly rapidly compared to historical levels (eg the Middle Ages), but it was still occurring at a manageable pace. The car fulfills the same function as a cart; light bulbs are a light source, just like candles or lanterns. The technologies seen in the first couple of centuries of American history were, for the most part, logical extensions of and replacements for pre-existing devices.
But all that began to change when the pace of innovation really picked up. It's hard to assign a date, but for convenience you might pick the last years of World War II as the beginning of the rapid increase in the pace of innovation. Even then, it wasn't so bad at first. But as the rate of innovation picked up, two factors were greatly exacerbated: 1) the complexity of new devices, and 2) the increasing prevalence of new devices with little or no ancestral devices. Television, for example: a television is not only considerably more complex than it closest pre-existing analogue, the radio, but also performs a previously unknown function -- the transmission of images over distance. Evaluating the originality of the first TV is not hard; but what about all the subsidiary patents that soon follow? Patents on improved antennae and cathode ray tubes, channel selectors and so on. To seriously evaluate all of those, you basically need to be an electrical engineer, with lots of time to study each new application.
But when you're getting dozens of patents a day, and you have the same size staff as you had before, and the applications you get increasingly arcane, your ability to fairly evaluate each new app goes down the drain under the workload.
The current pace of innovation cannot be sustained indefinitely; eventually our tech base will settle down again. In the meantime, we need two things: more specialists at the USPTO charged with evaluating patents in a particular field, and stricter standards for what is patentable. Business methods should not be patentable, nor should software -- or compression algorithms like the LZW one mentiond above.
Unfortunately, these reforms are going to be difficult to implement. Stricter patent standards will not be practical until we have more specialists to fairly evaluate the influx of arcane high-tech patents. Unfortunately, those specialists are mostly the ones applying for patents. You can make a heck of a lot more money by getting patents than by granting them. In order to attract the specialists it needs, the USPTO is going to have to offer competitive salaries; and that, I think is going to take an act of God. Chances are slim to none that Congress would raise their budget without a pressing political reason, and the only other source of cash are the application fees and maintenance fees. Increasing the budget by soliciting and granting more patents would simply worsen the problem we're trying to avoid in the first place.
I sure hope this gets worked out, but I predict that the USPTO will continue more or less as it has been for the forseeable future.
I'm currently studying film history, and it's interesting to see how similar patent issues that effect the technology were causing problems on the technology use during the early days of cinema.
By 1907, Edison and his Vitascope (which BTW he did NOT invent, but licensed with Thomas Arnat et al) had alot of patents on movie camera & projector technology, including the crucial "latham loop" that relieved tension in the film. Since 1897, Edison had sought to force competitors out of business using these patents. One company, American Mutoscope & Biograph (AM&B) refused to cooperate, and won against Edison in 1908. Edison, refusing to give up, continued to sue AM&B based on the latham loop. The 2 parties negotiated a settlement, forming the Motion Picture Patents Company (MPPC) in 1908, headed by Edison, AM&B, and a number of other smaller movie companies. The purpose of the MPPC was two-fold. First, to prevent the entry to market of new competitors to the field, and second, to limit encroachment of foreign films on the US market. It was collusive protectionism all the way -- the formation of a self-perpetuating oligopoly. With the patents the MPPC held, anyone who picked up a camera to make a film had to pay them or be sued. Ditto for exhibitors, 'cause the MPPC had patents on projectors as well.
Once they'd solidified their hold on projection & filming, they went for distribution, forming the General Film Company (GFC) in 1910. The GFC was the sole contractor for all MPPC companies' films. With this move, the only place to go for movies was the MPPC/GFC, controlled by the oligopolists.
In 1912 the US gov't finally began going after the MPPC as an illegal trust. They won in 1915 & broke it up, invalidating a number of the patents in the process, with the resulting companies devolving into the number of smaller movie studios we know from the 20's through the middle of the century. In the end, what was lost? Nothing less than all of the innovation small players could have brought to the technical end of the movie industry in its infancy. That's the problem with such tight patent restrictions in nascent technology -- the first out of the gate, not the best, tends to win.
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Let's face it, new tech both pays off faster - if it's any good - and needs to be supplanted faster. So let's cut in half the patent term for computer-related patents with each Moore iteration. Boy will that be a spur to innovation! Get it out this year 'cause next year you won't own it for as long, if you don't file 'til then.
"with their freedom lost all virtue lose" - Milton