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The New Yorker on Business Process Patents
caledon writes "The New Yorker has a clear, concise, nontechnical essay by its finance columnist James Surowiecki criticizing business process patents: Patent Bending.
'Although we have always had a vibrant patent system, we've managed to strike a balance between the need to encourage innovation and the need to foster competition. As Benjamin Day, Henry Ford, and Sam Walton might attest, American corporations have thrived on innovative ideas and new business methods, without owning them, for two centuries. In the past decade, the balance has been upset.' Makes the argument persuasively."
I wouldn't abolish them altogether, but they should be restricted to physical devices that must be built from components. Not chemicals, not software, and most certainly not business methods!!
-uso.
Dreams, dreams, don't doubt dreams, dreaming children's dreaming dreams. Sailor Moon SS
Let's not throw out the baby with the bathwater. The total lack of patents would put the indivual inventor out of business, because he/she would never be able to compete with large corporations.
Now technology has struck again--people are inventing new ways to make money. Instead of applauding their innovations and acknowledging their right of first use on ideas they made up, we are demanding that they share them with us. Instead of being free market, laisez-faire capitalists, we (by which I mean you, I don't subscribe to this) have turned into whiny littly communists. "It's too hard to make money when the other guy has a shiny new business model. Mommy, make him share!" Bah.
Previously, there were checks and balances placed in society to prevent the atrocities of the Industrial Revolution from happening again. And life was good.
As more and more people forgot about the conditions of labor which were impressed upon the workforce, these checks and balances were overlooked and neglected, and big business took over. Like a kid in a candy store, these entities destroyed the system which fostered competition, and made it a tool to oppress the people. Big Business became Government, and further cemented the position as our overlords.
The current patent system is just a tool used for this purpose.
"As Benjamin Day, Henry Ford, and Sam Walton might attest, American corporations have thrived on innovative ideas and new business methods, without owning them, for two centuries."
Yes, and now every idiot who went through business school wants to get in a piece of the action, despite frequent majoring in "Business" is more like highschool++ rather than serious post-secondary education for many. I'd have a lot more respect for "businessmen" if several of the small businesses that I've worked for didn't ignore their employees when it came time to make technical decisions, and would consider long term effects. These people even have a financial stake in what they're doing, compared to those that control other peoples' money, and they still are screwups. I don't see why we should let any company or business person patent a business plan, when they think that one good idea without heavy technical implementation should be something that they can solely profit on.
Besides, most of the actually successful business people that I have met don't feel a need to patent business ideas or processes. Of course, these generally are people who liked working in a field and started their own companies because of that, and knew the tech and work, not simply how a spreadsheet worked.
Do not look into laser with remaining eye.
You have time automatically, software doesn't just suddenly "appear" -- it takes time to write, lot's of time, even if you're trying to copy the workings of someone else -- especially so if how the software works is very novel. If someone could just clone it in a year or two then its implementation wasn't very special after all.
You're talking about implementation, right? Patenting "concepts" is just to scary for me to think about.
Whatever happened to simply being the best and levering being the first one to be on the top?
Belief is the currency of delusion.
I've devised many algorithms that could save companies many man hours by speeding up their applications by Olog(n) however I refuse to use them unless I can be certain that they won't simply take the algorithm and use it elsewhere. I'm not talking about reverse engineering code mind you, I'm talking about the actual ideas that go into the code. For instance lets say, hypothetically, that I devise a sort routine that works anywhere from 35 - 40% faster than the quick sort in with all datasets. I would have to be a fool to just give this away after spending months of research on it when my time and my intelligence are the only things I have that I can charge for.
I think the patent system is pure capitalism at it's best and may the best and brightest and first to market be the guy who wins. Patents are as American as Apple Pie and Baseball as far as I'm concerned.
Wagner LLC Consulting Co. - Getting it right the first time
I have to take issue with your suggestion that chemicals should be non-patentable. Given the commercial exploitability, R&D costs, and relative ease of copying once the R&D heavy lifting has been done, chemical compounds are exactly the sort of thing that patents should protect. Why would companies sink millions into R&D for potentially useful compounds (say, enzymes to metabolize oil spills, or self-repairing fabrics) if anyone could exploit that R&D latterly?
In general, patents and IP are a more complicated issue than can be dealt with in the sort of single-sentence answers (like "Ban patents!" or "Ban patents on chemicals, software, and business methods!") that are popular here on /.
This is such a tough issue for me. On the one hand, this post makes a very valid point - businesses with new methods have thrived without the help of patents. But these days, there are so many more businesses where the business model essentially is the product, so why not have some sort of protection? Look at NetFlix. Nobody (including them) could make a go of online rentals, until they came up with a new method. Now if they have no protection, they can be wiped out in a matter of months by a corporate behemoth that has the resources to basically take their business out from under them once they're sure it will work.
Before you slam me for defending business model patents, understand that I'm just voicing the other side of the coin - and I don't mean that big companies should be protected - this can protect the little guy that can only become big with at least some temporary protection. I agree that there are massive abuses in all areas of patent law, but I don't think wiping out certain types or all of them is the answer. While big corporations may have perverted the patent system into being its bitch, if it's obliterated completely, then only the largest companies with the most resources will profit from innovation, and when that happens, there will be far fewer innovators.
666-607: 6th floor apartment of the beast
Makes the argument persuasively.
I'm not so sure there's anything persuasive in the article. All it really asks you to do is agree that patentability of fast food is ludicrous.
You can make a short persuasive analysis and reach the same conclusion, just by hitting those same sort of historic ideals: a patent system was created to 'promote the useful arts' with (among others) limited monopoly justified by getting ideas clearly into the public domain sooner and allowing for further innovation. The first steam engines were patented, from there you get internal combustion.
A patent for selling auction items at a fixed price, or many of the business method patents we see, however, are dead ends. (Oooh, I know, I'll sell fixed price items at a fixed price!!) By failing to promote further steps on a technological ladder, business method patents don't give back to the public what the patent system was created to do.
Perhaps in the beginning such radical ideas weren't even considered for patenting because they were so radical who ever thought they'd work out so well.
And afterwards it was too late.
Most people trying to make a radical idea work are usually too busy to think about patents.
"It's the height of ridiculousness to say for those 9 lines you get hundreds of millions."
Using your example, if you've implemented your new process properly, you should have a BIG leg up on the competition -- even if they do copy your innovation. While you're selling your cheaper-to-produce widget (either undercutting your competition, or reaping higher margins), they are scrambling to work the new business process into their existing assembly lines, figuring out how to pay for it, etc.
You say that "the idea of renting DVDs over the Internet does not seem unique to me" -- to which I say, a streamlines manufacturing process to produce widgets does not seem unique to me. You're still producing the exact same widget as your competitor, albeit at a lower cost.
I could see patenting a method of creating a widget with the same functionality, but using different components. But I'd have to drink an awful lot to be convinced of the merits of patents on business processes.
Black and white solutions rarely work as well as was intended, but this is one place where I think a gray area may be a killer.
The parent post wasn't about copyright laws...so what are you talking about?
One big problem I see with patenting business products is how do you ever prove you came up with it? In a competitive industry all the businesses will constantly be looking for ways to streamline their procedures to lower expenses. So what gives you the right to patent something everybody in your industry is working on at the same time? Who gets the patent - the guy who first thought of it, the manager who first approved it, or the company who first implemented it? And if my company has written the procedures and plans to implement them next Monday, can you get a patent because you did it first on Friday?
It is too messy. With a physical invention you can make the object, construct diagrams of it, and prove you are the first to invent it. In business processes it is way too "mushy" to define when a process is invented and when it is just a idea in somebody's head.
My motto is: Never give up - unless it's harder than you want it to be.
Best comeback to that inane crap is "Turing thought the brain was a Turing machine - therefore, all innovation of any kind is obvious and unpatentable." See how they like that.
-Looking for a job as a materials chemist or multivariat
The biggest problem is that business patents essentially open up patenting ideas, which you are not supposed to be able to. Over a hundred years ago, you actually needed to build one of your gadgets and bring it to the patent office to be able to patent it. This became unpractical and the USPTO allowed diagrams instead. But now I can walk up to the patent office and patent the idea of using computers for selling sex services over the internet and it would get a green light as a 'business method' patent.
In reality the hard part of selling sex over the net is coming up with the actual mechanical interface (ick!). That is what is worthy of patent protection.
Ditto for one-click purchase. This is trivial. What is not trivial is coming and should be patentable is a specific method for tracking state using a cookie with enough security features to make it fool proof.
There are no individual inventors tinkering in their garages without corporate sponsorship anymore, except maybe Dean Kamen.
The vast majority of patents are held by coroporations. The inventions of individual inventors are owned by corporations because of an employment agreement or are sold to a corporation for a pittance for fear that the corporation will win any legal battle owing to their superior financial resources, regardless of the merit of their claims.
Individual inventors already are out of business. Make patents non-transferrable and make ip agreements that assign ownership invention to corporations illegal and they'll be back in business.
microsoftword.mp3 - it doesn't care that they're not words...
call your representatives, amass a constituency who is educated on the issue and bring it up. VOTE out people who aren't responsive and VOTE in people who are.
/. don't even vote. i mean, what's great vote turnout anymore? 40%?
heck, run for office and get the thing on the agenda.
you can't complain about litigation if you don't get involved in the process.
odds are a staggering percentage of people who read
(those who participate are exempted from my rant).
// "Can't clowns and pirates just -try- to get along?"
The article clearly points out that the problem is in patenting business procedures, rather than true inventions.
If you review the history, there were two changes in the recent interpretation of patent law.
The problems are related to granting patents for things that are a) not specific solutions, merely statement of problems, and b) obvious.
So I believe we need to restore the orignal presumption that a proposed patent is not sufficiently innovative. The other thing that has changed since when the patent system was mostly considered to be working is that the world has sped up. A 17 year period may have made sense in the 19th century, it is way too long for the 21st.
But none of those are arguments against the inherent ideas of patents. Citing the current abuses of the patent system as an arguments against patents in general is like citing Windows 95 as an argument against having an OS.
So what you are saying is that Ford is the only company that should be allowed to use the production line? I am sorry but these are things that need to be shared in order for capitalism to thrive. This promotes competition by bringing companies on equal footing. If everything had a price one company with the money would end up owning everything.
Or how about the idea of digitally compressing music using a computer program to result in much smaller file sizes with minimal loss of quality, and then refused to license the patent for use. (Note: Macrovision has done something similiar when they patented all the ways they could think of to beat their system, and refuse to permit their use.)
I believe no one should be allowed to patent something in order to prevent its use. Compulsary licensing under fair terms should be enforced, or we all will be worse -- not better -- off from this system intended to foster inovation.
"It's the height of ridiculousness to say for those 9 lines you get hundreds of millions."
"Makes the argument persuasively"
Sure, since you almost certainly already believed that business process patents were bad, it was persuasive to you. The real test will be if it convinces anyone who currently does not think that way. Then it can be correctly described as persuasive.
... right after someone patents a legal procedure as a business method. As it is right now, lawyers have a vested interest in more stuff being patentable - more patents means more searches, more filing fees, and more lawsuits, hence more money for lawyers.
When lawyers have to have their documents scanned for patent violations before filing them, they'll begin to get a taste of what the rest of us have to put up with, and maybe they'll work to prune it back a bit.
To a Lisp hacker, XML is S-expressions in drag.
The first written evidence of a patent was probably around Aristotle's time (Aristotle's Politics). Here, Hippodamus calls for a system that rewards people who discover useful things for the STATE (whic Aristotle condemns, saying that law should not change so quickly). Honor the creator of a useful thing and we will recieve more usefull things.
The first "real" patent system probably came about in Venice in the 1400's for corn mill designs, and to Brunelleschi for a marble transportation barge.
The Venetian law reduces to writing the basics of the modern patent law:
1. Devices
2. Registered with and agency
3. new and useful
4. not previously made
5. reduced to perfection
6. 10 year term
However, it did give Venetian rebublic the rights to use any invention without paying the inventor.
Of course you don't. That's the point though. Everybody wants to get patents, it protects them. I remember the good old days when companies had to worry about industrial espionage to protect their production methods which were better than the competiton. Those days, you kept your better widget production method secret, and you stay ahead of the competition until they figure out how to better their system on their own. What you want is an unfair business practice that gives you the advantage...that's what everyone wants for themselves.
Of course, patents are still necessary. If you create an invention, and then a big company with lots of capital copies your idea, and sells the same thing for much cheaper than you possibly could, that's not competition, that's hanging you and using your own idea as the rope. The line must be drawn between patenting a product and an idea though, just like it used to be. There must also be a *short* limit on the time you're allowed to sell your invention without any competition, basically enough time to let you be established in the business, so that by the time the other companies can join in, you can hold your own. I'll leave it to people more intelligent than I to figure out what's a reasonable time, but I'll go ahead and say that this time should definitely be different depending on what it is you're patenting...it should be decided in an individual basis.
Warning: Opinions known to be heavily biased.
"A great democracy must be progressive or it will soon cease to be a great democracy." --Theodore Roosevelt
I think the basic problem is the patent system is not designed to handle software or business method patents. It was set up from day one to handle physical objects and processes, and it does that tolerably well. It's possible to look at two processes or objects and make a reasonable determination whether they are the same. The equivalent is not really possible for software or business method patents.
Remember one of the purposes of patents was not to lock up entire ideas, but lock up one implementation, encouraging others to create other implementations to stimulate market competition. Since the patent system is fundamentally unsound in this domain, and has no reasonable way to determine if two things are the same, the patent system has "defaulted" to the broadest possible interpretation of "same" (as opposed to the narrowest possible, in which case it would be virtually impossible to violate a patent, patents would be nearly worthless, and by extension, the Patent Office would be nearly worthless and powerless, which is the Number One Anathema to a beauracracy). As a result it's not possible to create alternate implementations without automatically infringing.
Patents do not belong in this domain, they are downright oxymoronic.
There are lots of comments about software patents, but that is really a seperate issue. The issue here is with patenting "ideas". Imagine you want to create a service that uses Apache and MySQL to serve some sort of content based on user form input. I'll bet you a quarter you'll find patents describing this process, granted to people who had nothing to do with either software program. Could it be more insane to grant a patent to someone who describes a way to use software? We're not talking about the developer, we're talking about using the software - in essence, these patent whores inhibit the adoption of existing works that they did not create. That's BS.
And say all you want about prior art invalidating the patent. That's only valid if the small-business person can afford the fight.
What changed under Obama? Nothing Good
First, I would need to see why this is necessary at all. I understand businesses and some individuals desire it and are now getting used to having software patents, but history shows most of the history of computer software development went along without these patents (or without them being exploited, depending on the timeframe). To me that says we don't really need them. Also, there are instances of organizations not being able to provide computer users with a lively competitive arena for computer software (including through cross-licensing which kills the competition-exclusion nature of patents). To me this says they are not victimless.
I want to encourage a lot of individuals, organizations, and small businesses to make and distribute software. And I want them to be able to compete with larger firms like IBM, HP, and Microsoft (each holds a lot of patents and licenses to deal in other patents). So I favor completely ceasing issuing or renewing any more software patents and letting all current ones expire (I'm not aware of any being renewed, but I wouldn't want to let any organization think they can continue to keep old software patents in force). Thus businesses will be minimally disrupted for the software patents they've acquired, and the field of software development can return to the time where there was fierce competition on features.
Furthermore, I think it's fine to depend on copyright law (with a reasonable term of copyright, but that's a different discussion).
Digital Citizen
With modern hardware there is no difference. A "hardware" implementation performs a sequence of logical operations that have been arranged in an innovative way to produce a valuable result. A software implementation does the same thing.
In either case, the essential innovation of having researched a method of sequencing and controlling the individual steps can be easily stolen and given a totally new representation. Copyright is clearly not suitable protection.
The emphasis has to be on ensuring that it is the innovative cominbation that is being patented, not the valuable result, and that it is indeed innovative.
Removing the need to prove true innovation makes the patent game a race to file a claim.
And as any /. reader should know, the "first post"
seldom contributes to the process.
This model does not apply to software, of course. You might say that it's because the "time to re-tool" advantage of being first to market is gone. No, in fact it's because software is just math made concrete, and math, like other "laws of nature," cannot be patented. (You can copyright your expression of the law or theorem, but not the law or theorem itself. No RSA patent, no LZW patent; no MP3 patent. No one can copy your code without your permission, but they can derive their own expressions of the law or theorem, i.e. write an MP3 encoder and a GIF reader.) Megabucks are only made by building a better widget, and/or by providing a service that other people want.
Unlimited growth == Cancer.