Slashdot Mirror
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.
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
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.
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).
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?)
"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.
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
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.
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.
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...
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.
That's what contracts between you and that company are for. You specify in the contract what rights they have with the work you provide, anything outside of that and they can be sued for damages.
In your example, if another person independently came up with the same method went to use it on his jobs (without even knowing about you) he'd be infringing on your patent and could be sued. That example has NOTHING to do with you protecting your work from companies with which you do business.
Sounds like you're looking for the goverment to protect you from your own poorly-written contracts.
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.
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."
Cert. was denied in State Street Bank in 1999.
That's why it's still good law.
The Supreme Court has smacked down CAFC on quite a few occasions when they produce completely strange opinions.
This happens because CAFC seems to have a bunch of judges who think patents are god's gift, and that everything should be patentable under the sun, and a bunch of judges who think that patents should be strictly limited and enforced.
I find myself agreeing with about half the decisions, and vehemently hating the other half.
In this case, however, you are correct, and the Supreme Court thought Congress should do something about it.
Which they did.
They passed the "Intellectual Property and Communications Omnibus Reform Act of 1999".
It contains the so-called "First Inventor Defense." This defense provides a first inventor (or "prior user") with a complete defense in patent infringement lawsuits, whenever an inventor of a business method (or prior user) uses the invention but does not patent it.
(Sumamrized from a lecture by Richard M. Stallman).
The argument against software patents is made on three grounds:
1. the products of the software industry are so large and complex (because of the lack of physical constraints) that the scale of 'invention' is hundreds times greater than in the physical world.
2. patents are expensive (10k Euro in Europe) and rarely can small businesses or individuals afford to aquire them.
3. even when people overcome point 2, they find that the large patent portfolios of large companies render their patents useless.
Conclusion: large companies purchase patents in order to protect not their inventions, but their competitive advantage. Since innovation comes from smaller teams, patents thus work against innovation.
Software patents exaggerate what is a manageable problem with physical patents, and turn it into a serious problem for smaller designers. Basically patents allow large businesses to collaborate with burocracy to create barriers against the entrance of smaller groups.
This is bad, corrupt, and economically stupid.
End of argument.
Ceci n'est pas une signature
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.
You're obviously confused over the meaning of the word communism. If we were "whiny little communists" we wouldn't have money and neither would the other guy. In fact, the state would have everything and would distribute goods to people as they needed them. Reality is that there has never been a communist government, rather they were all Marxist governments with no intention of ever progressing into communism. The unattainable goal of a "communistic society" was just a carrot used to make totalitarian rule more palatable to those they were oppressing. Marx and Engles were social idiots who probably drank way too much absinthe while in Paris to even realize that their crappy papers were based on anything but reality. Back to the subject ...
Under capitalism, the goal of the state is to promote open competition. You can reconcile this with anti-trust law since it's goal is to restore open competition. However, patent law prevents open competition. It creates state controlled monopolies whose sole purpose is to prevent free market competition. State granted monopolies are a facet of fascism, not capitalism. I don't see how you can call yourself a free market capitalist but still believe in patents.
Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws-Plato