When Good Patents Go Bad

will writes "The Washington Post has a good review of patents in the information age. The insanity of the US patent system has been chronicled on this site numerous times in the past (for example, an FTC report on patent policy, some patents for obvious applications such as Microsoft patenting local weather, and Amazon patenting inside book searching). The Washington Post article does a good job of overviewing IP issues today, why the current US patent systems fails in the information age, and gives an example of patent extortion. Excuse me while I patent my DNA."

Comments

What makes a bad patent?

[mgcsinc]

One aspect seems central to many of the patents which are generally accepted to be absurd or insane: they are patents on processes for selling goods or services rather than on the goods and services themselves or their means of production. There doesn't seem to be enough awareness of this discrepancy between these types of patents and ones which we consider to be reasonable. Online retailers such as Amazon, for example, may claim that they have two customer bases, book-buyers and advertisers, and that the website itself is a product for the advertisers, but in truth their real customers would seem to be the former....

Re:What makes a bad patent?

[dslbrian]

You're honestly of the impression that there is actually a sizable minority of people who would like to invent something with no guarantee to their right of exclusive production?

I work as a EE in a company and I've been in this situation myself before. I've become so disgusted with the patent process that I've decided that I'm not filing any more patents. If I was working independently as an entrepreneur I might have a different opinion - and it is my belief that that is the real justification behind patents - to protect the entrepreneur long enough to get their product to the market.

However the patent system today doesn't serve to protect individuals, its now nothing more than a corporate club for litigation against any would be competitors. Its used by companies that are already well established and are in no danger of not getting a product to market. I remember someone once telling me the way patent settlements are reached is that the lawyers all gather in a room and the companies put their stacks of patent papers side-by-side, the difference in height yields the settlement fee. More recently there has been a trend towards reviving old patents on things that are obvious or have been in use for decades (ie. Forgent's "jpeg" patent). Its nothing more than a money grab by parasites abusing the patent system.

So back to the original point, yes I've invented things before - but no I don't care if the company I work for gets exclusive rights to it. You see it takes time and effort on my part to file a patent, and what do I get for my efforts - a small wad of cash, big freaking deal. Now on the other hand if I don't patent it, I get to take that knowledge and use it again, for myself or for any other company I work for. Further as soon as the circuit I worked on gets fabricated, it becomes prior art and can no longer be patented after that. Its a selfish motive on my part (no more selfish than the patent grabbing company though), but in the end my method serves myself and everyone else better (well at least the people I work with since they get direct benefits of that prior knowledge)...

Another reason for ridiculous patents

[Brahmastra]

It's not just that it's easy to get ridiculous patents through the Patent office. There are incentives in most companies for employees filing patents such as cash, stock options, etc. This not only inspires some people to come up with good ideas, but it also inspires a lot of people to come up with crap just so that they can get some $$$ (yeah I'm one of them too).

Re:Another reason for ridiculous patents

[willtsmith]

We need to have financial incentives in place for people who defeat patents with prior art searches. Basically, you would put bounties on killing patents as a way of clearing the roles of nonsense patents. This would be the IP euivalent of selling-short (betting on stocks going down).

A challenge phase needs to be put in place so that our patent killers (as well as competitors) have a chance to savage a patent with prior art claims before it officially goes on the rolls.

Finally, we need new categories of IP that try to make things a little more clear. Copyright and Patent no longer covers the range of intellectual property out there.

Patent - Applies only to physical machines. Applies specifically to a problem and the machine that solves it.

Copyright - A written and performed work of art. Computer programs do NOT apply.

Software (4 years)- A very specific process for creating something new. Data structures may be involved, but only in conjunction with a related algorithm. Alternative methodoligies for using the same data formats (reverse engineering) is specifically allowed.

Method/Application Patents (4 years) - Protect a novel way of doing something. This may apply to a business method or a software application.

Pharma (15 years) - A chemical composition for curing a specific ailment or modifying a biological process. All Pharma patents must be vetted. That is, the research must be done showing that it actually does what it CLAIMS it does.

Pharma Use (non-exclusive 10 years) - A set of research that proves an additional use for an Pharma substance. This could apply to something as mundane as aspirin. A court could grant intellectual property rights proportional to the scope of a new use for that substance which would increase it's use. For example, proving that Aspirin helps prevent heart attacks increases the use of Aspirin.

This one sounds weird, but it encourages people to do more research on existing substances. Pharma research is EXPENSIVE. This research should be rewarded since it adds to the level of human knowledge and increases the use of EXISTING products making the whole process more effecient.

The IP would work as a royalty granted by IP courts levied on producers of that substance.

Research patents (non-exclusive 10 years) - Like Pharma patents, this would expensive basic research. It would be a royalty applied to products which profit from knowledge derived from expensive research.

The most obvious IP in this area would be human and animal genome. It's not an invention, it's an expensive process of discovery. Additional types of IP could relate to materials science, and even advanced physics (like the guys slowing light down, quantum entanglement methods (advanced communications)).

Engineered Organisms - A company that engineers an organism would have rights to re-produce and sell that organism. Any one else with access to that organism could breed it, but not for profit.

Re-production of the organism using unique methodologies would be allowable and would constitute a unique organism IP. Though, other IPs may apply.

New IP categories. The IP office would have staff and processes devoted to exploring new categories of IP and their associated rights, and fees. They could write legislation and submit it to congress for consideration and ultimate approval.

Re:Another reason for ridiculous patents

[maximilln]

-----
Pharma (15 years) - A chemical composition for curing a specific ailment or modifying a biological process. All Pharma patents must be vetted.
-----
Background...

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That is, the research must be done showing that it actually does what it CLAIMS it does
-----
Have you heard of angiogenesis inhibitors? They are chemical compounds which battle cancer by preventing tumours from growing additional blood vessels. If the tumour cannot grow more blood vessels then it, theoretically, will starve itself into remission.

I was at a project meeting one time where the department head was singing the praises of the latest round of developmental angiogenesis inhibitors. He was pointing specifically to data from mouse models which showed that, after the compound had been introduced to a mouse with a tumour, the tumour decreased in size and entered remission as opposed to mice who had been given a placebo. The size of the tumour was determined by cutting it out of the mouse and using a balance to determine its mass.

To verify that the compound was doing what it was supposed to be doing I asked if anyone checked the vasculature in the tumour. Were the veins and arteries smaller or thinner? Was there evidence that the tumour decreased in size due to reduced vasculature? Was there any evidence that the compound was working as an "angiogenesis inhibitor" and not by another mechanism? The department head looked like a fish out of water for five seconds and then began a 30 second rant about how I was an incompetent fool that needed to go to graduate school before I understood anything about biochemistry.

Needless to say the company was still pursuing filing a patent for the new "angiogenesis inhibitors" when I left. It never ends.

The lawyers will win.

[grub]

This is going to be a giant windfall for the lawyers in all this as there will have to be an overhaul of the patent laws and system.

Here's a prediction too: after the "fecal matter hits the rotary cooling device" in all this patent fiasco you'll see an increase in the number of people going to law school. Mainly for IP law, too. Don't laugh, remember how the non-geek masses took computer science in the 90's because that's where the money was?

One problem with many patents..

[overbyj]

is that they are fishing expeditions. IANAPL (...patent lawyer) and I don't pretend to understand the intricacies of computer-related patents, but there is a fundamental flaw i the patenting world.

For example, as a chemist, I search the patent literature trying to find out what chemical reactions have been reported. It is a well-known fact that you have to take the chemical patent literature with a huge grain of salt (no pun intended!) because many times, the reaciton simply doesn't work the way it is reported to work. The chemical patent literature is not a peer-reviewed process like scientific journals are. It is significantly harder to get an article published in the chemical literature than to patent that material.

I guess what I am getting at, is that there is rampant patenting taking place with few significant things to show for it. Chemists patent anything and everything they can in the off-chance that someone will use it in an industrial process. They are just total fishing expeditions. I know that there will certainly be people out there to correct me with their own opinion, but in my opinion, it just points to a flawed patent system.

Rerun

[tds67]

When Good Patents Go Bad

This is a rerun. I saw this on Fox a couple of weeks ago.

Re:All I can say is...

[Anonymous Coward]

Or are there actually some decent altruistic people out there who want to make the world a better place?

Yes, there are.

Why VisiCalc wasn't patented

[tigertiger]

There is an interesting article by Dan Bricklin, one of the inventors of VisiCalc (the first spreadsheet programs), on why they didn't patent VisiCalc. It's simple - patenting software was only possible after 1981. Think what the industry would look like if people had been able to patent spreadsheets (VisiCalc), full-screen word processing (WordStar and many others before), and windowing systems (Xerox PARC and Apple Lisa).

The bad news is that Bricklin thinks software patents are bad, but since they are here, you have to try to patent as much as possible. I guess soon we will have to take out patent-infringement insurance with premiums as high as our salaries.

Anti - Patents?

[mhotas]

There ought to be such a thing as antipatents. These would work like regular patents, in that they would be registered, and somebody gets to claim credit, but also disavow ownership. So whatever the idea is, it's explicitly in the public domain, and whoever claimed it first gets some positive attention. Kind of like the GPL, but not just for code.