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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."
Not really a lot I can say, but seeing as I seem to be first(ish) here, I'll say some stuff anyway :)
It is nice to see this kind of coverage in the popular media. It no longer seems as ridiculas as it did to imagine a general shake-up of patents, which is good. The article also describes the problem well, with good examples (as opposed to some of the more usually used stupid examples).
I don't think we should get rid of patents, I don't even think "software patents" are a bad thing (if anyone tries quoting the 'all software is produced by a turing machine, so is all obvious argument, I'll hit them!), but hopefully we can reach a sensible system!
Combination - fun iPhone puzzling
I think to a certain degree software should be patentable. If you go out and develop new, innovative, and suddenly popular software - you should have a time when you don't have to worry about being deluged with copycats. That being said, a more intelligent idea might be to have time limits with variance per the item being copyrighted.
Software (methodology) patents could be what, a few years, and business methods perhaps one. It allows the creator to enjoy the fruits of his/her labour for awhile, while still allowing competition to foster and innovation to flourish in later years.
Oh yes, and you should not be allowed to patent something that already exists in a previous medium (online XYZ based on real XYZ).
Abolition of patents is a simple-minded, reactionary solution, and if you think it hasn't been brought up plenty of times, you apparently haven't been reading this board for long.
Patents serve a valuable purpose to spur development through economic incentives while ensuring ultimate constributions to the public domain. That they've been abused and overextended is not a reason to throw them away. I agree we need massive changes in how patents are granted, but I've yet to hear a single compelling argument for their abolition that wasn't tinged with drool...
Trouble making decisions? Just flip for it.
At the same time, I think there are pitfalls. Take Netflix for example: the idea of renting DVDs over the Internet does not seem unique to me. As a matter of fact, I thought of the very same thing in 1997 but couldn't get capital.
The more I reply to these topics, the more I realize that there is no clear answer, so I begin to wonder why I reply at all.
But in July, 1998, the U.S. Court of Appeals for the Federal Circuit did away with that principle.
I wonder if this case (or a similar one) ever made its way to the Supreme Court. It might help matters, and it would be much more likely than waiting for Congress to do something about the situation. Any action in Congress limiting these kinds of patents would certainly be opposed by entrenched corporations (which might not control Congress yet, but do have substantial influence in it).
This is the real signature
(Beats those shadows on the cave wall, don't it?)
For all you people who think that McD's came up with everything, remember that the first fast food place to come up with the drive-thru window was Wendy's. May seem obvious now, but back then it was huge that you could get your food in less then 10 minutes.
Who knows how long we wouldn't have the drive-thru had McD's stifled all the Wendy's and Burger Kings out there from making their own innovations.
What if this was the case years ago, and hence every sorting algorithm other than bubble-sort was patented. Yeah, that would be fantastic.
The idea that patents help the individual inventor is a myth.
The best resource I know is Don Lancaster's "The Case Against Patents": Don Lancaster is a old-school hardware/AppleII hacker. On his website he lists a lot of alternatives to patenting that are actually helpful to the individual inventor.
You have a good point. If you don't like the system, find a way to change it. That takes active participation. Bitching about the political system in an online forum does NOTHING to change it. Getting off your lazy ass and getting down to the voting booth, or working for a political party takes guts, but it gets YOUR agenda taken into account.
Regardless of what I think of the people running for office, I STILL VOTE, even if it's for NONE OF THE ABOVE.
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Congress is where the change has to come from because our court system normally avoids deciding cases based on broad public policy concerns where narrower issues can decide matters. Also, the Court of Appeals defers to their precendents and is rarely inclined to overturn them.
Unfortunately, the patent system is based more on who gets there first with an application for an idea rather than who invents first - although that still is an important factor. As a result, while a method idea may be applicable in many different areas, i.e. algorithms can be used to model financial transactions as well as used in code, he who files first wins. And applications are filed with claims designed to provide as broad protection as possible.
Patent applications are published after 18 months from the filing date or on the date they are granted, whichever comes first. With a publication before the grant, a party can file an interference with the PTO but they have to KNOW about the filing. Most small concerns do not have time or the money to do this.
Furthermore, with the way that Congress has extended the terms for copyrights in the last 10 or 15 years something tells me that enacting such legislation would be an uphill fight.
Alas, if you have what you believe is a novel method or process, write it down, date it, have it notarized, and protect it as soon as you can.
The product, method, or buisiness plan is only the beginning. I feel like the patent process almost makes this the goal. There are a slew of other things that need to happen to implement a product/method/plan and make it successful. If you create something unique, great. Now do something with it. Owners shouldn't be the only ones who are able to do/make it if they suck at doing/making it.
OK, you right-wing nuts out there, jump on me. Go ahead. You can't refute the facts... like, Bush, et al would like to get rid of the EPA (and the republicans almost succeeded in gutting their budget a few years ago). Why? Too much government interference in corporate profits. Damn those toxic waste dumping rules!! They could make so much money if they didn't have to cart that crap off to Mexico...
Regarding dramatically smaller government, read this. It's written by a life-long republican, lest you nuts raise the spector of the "liberal media".
If someone had patented the process of Flint Knapping, we, as a species, would never have made it INTO the Stone Age. Let alone, to the Information Age. It's all about the Information - and if it remains free, we progress. If it's contained, we, as a species are contained.
These are my friends, See how they glisten. See this one shine, how he smiles in the light.
n addition to what's in the article, I have my own observation: the default action now for companies is to run out and get a business method patent - not because they believe it will make them money, but to prevent others from getting the same frivolous patent and suing them. It's become necessary as a means of survival under the current interpretation of the laws. My guess is that's why netflix.com got their patent on DVD rentals. They saw what was happening to Ebay, etc, and didn't want to get buried under that kind of litigation. Pretty sad. I think the law is broken and that ruling needs to be overturned or superceded.
That's not the question. They might still be making money off of it, but one key benefit of the patent period is that the original inventor gets to recover their investment during the period where they have exclusive rights. You have to wonder if Tylenol would have been so willing to sink money into R&D for acetaminophen if they knew that Kroeger could exploit their work within a matter of months instead of years. And would they still have a dominant market position if they didn't have their period of exclusivity to establish themselves?
Who cares?
The GNU General Public License depends on copyright law, not "intellectual property" laws (whatever those are). Intellectual property consists of not one cohesive set of laws but a diverse and sometimes conflicting set of disparate laws that cannot be properly understood if you refer to them as a whole.
As for being in nobody's interest to share--before the GNU Project existed virtually everyone shared code and ideas freely. Richard Stallman talked about this community (which he was a part of) because it highlights the jarring change that drove him to start the GNU Project. You should listen to his talks on the subject.
Software patents (as they have come to be known) were unnecessary for most of the time people have been writing computer software. Thus we can show by existence that people do not need these patents in the field of software to innovate. I don't know about other fields of endeavor, but in computer software they are generally unwanted and they actually serve to retard innovation.
Digital Citizen
There is a very simple way to do this TODAY! Create a Website where anyone (registered voters) who is interested in this issue can pledge their votes to any candidate who public declares support for it. Once we create a simple, direct position statement (i.e. Business Method Patents should be abolished), we can start collecting signatures. If we can gain enough signatures (~100k), we can go to presidential candidates and ask for their positions on this issue. Any candidate whose position is closest to the position statement would get the votes of the group. Collecting ~100k signature would not be that hard if someone like /. would get behind it!!!
Basically I don't like the idea of business process patents. The patent system was devised in order to promote the advancement of technologies; this seems to be a poor fit to the fundamental idea and is bound to damage the patent system by dragging it into inappropriate applications.
On the other hand I could see a big advantage to the concept of a business process patent - the end of the management fad. If companies patent their processes we won't have pointy-haired bosses coming back from hunting trips with their peers full of jackass ideas based on copying what the other company is doing (neglecting that the other company is totally different). I think that maybe the world would be a much better place if this turns out to be the result of the business process patent. And this isn't as far-fetched as you might think - several years ago I heard a senior manager actually state that business processes spread so rapidly precisely because of the fact that they cannot be patented (which was true at the time).
Rapid desemination of GOOD ideas is a good thing. The question is how many of these business processes are actually good ideas and can stand the test of time in the marketplace before they are proven and deserve wide adoption?
The purpose of a patent is not to enrich individuals or corporations, but to allow them to recoup research and development costs. The classic example is a drug company that spends millions of dollars developing a pill that only costs pennies to produce. The drug company is given a legal monopoly for a period of time so that they can sell the pill with large profit margins to regain their investment. For a patent to serve its purpose, the following criteria need to be met:
1. The formula for the pill was not obvious to anyone.
2. The R&D effort was considerable.
3. Without the prospect of a patent, the drug company would not have developed the pill.
Software is altogether different. Software developers recoup their investment by selling their software. Being first to market is a huge competitive advantage. Copycat developers are still going to have to spend a comparable amount of time and money to produce a competing product. The software industry is going to thrive without patents. They are not necessary and only reduce competition.
You say that you should have time not to worry about being deluged with copycats. Can you say exactly why you think this? In the contrary position, let me point out:
(1) Copycats will still be copycats; people who aren't already tied to one of the copycaterers will tend to prefer your solution
(2) You will already have time not to worry about copycats: the development time that it takes the copycaterers to figure out your software.
(3) You already enjoy the fruits of your labor. If Microsoft, Oracle, and SCO are copycatering your work and your new sales are hurting, your obvious solution at that point is to sell out to one of them [that is, they get all your customers, but also have to work the merging of the two formats for the next version]. That way, you get your profit without further responsibility.
(4) If you think that there is some specific amount of time you should not have to worry about copycats, what exactly is that specific amount of time, and why exactly that amount? Why not a year more? Why not a year less?
(5) Patents are still not free market, and do damage the economy. They also most often make it difficult to enter the business, which keeps new jobs to a minimum.
Correct Horse Battery Staple: 72 bits of entropy. Enter "Correct H" into google. When it generates the phrase, that's
"Make patents non-transferable and make IP agreements that assign ownership invention to corporations illegal"... nice idea, but I hate to point out the "P" in your "IP" stands for "property". Intellectual property is nothing other than a legal fiction that grants the ability to dispose of an intangible in the same manner as rights associated with things.
Bit like saying we need aircraft regulations that prevent planes from leaving the ground.
Common law copyright regimes have a strange beast called "moral rights" in a work, but even those do not go nearly as far as you're proposing...
The author says I can patent a business method, to "outlaw my competition". Well, sorta. The
"legal monoply" of a patent can be argued in court (expensive for individuals, trivial for
Fortune-500) or it can be waited out for 20 years (boring)...but, okay, it makes a fine
assertive closing.
Makes me wonder, though: are business method patents more unhealthy for an industry than the
opposite situation? That is, in the author's analogy, if the novel business methods of Benjamin
Day of New York Sun fame were *immediately* copied by his competition...would there be any New York
Sun fame?
Put another way...I'm willing to bet that more entreprenaurs have been screwed by competitors
copying their novel ideas and methods, than competitors have been screwed by entreprenaurs
obtaining business method patents.