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EFF, PubPat Each Seeking Some Patent Sanity
AbstracTus writes "According to Wired, The Electronic Frontier Foundation is trying to get the U.S. Patent and Trademark Office to re-examine 10 patents that were selected from public submissions. We slashdotters often curse patents that should have been rejected, but are not. Do you think that the EFF can have any influence on the U.S. Patent Office? Are there other actions that are more likely to work?" And sharkb8 writes "The Public Patent Foundation is searching for
people with experience in all technical fields to help examine patents. This is the perfect chance for attorneys, law students, and geeks in general to do some pro bono work. PubPat is the group that recently
challenged one of Microsoft's FAT patents."
The best way to influence the PTO is probably through Congress.
If you don't know where you are going, you will wind up somewhere else.
"Armed forces abroad are of little value unless there is prudent counsel at home" - Cicero
By technical experts prior to be granted!
Don't forget to add Microsoft's Double Click Patent and Mcafee's patent on Bayesian spam Filtering (filed months after Paul Graham's paper was published). I'm not quite fond of AOL's patent on "evil points" either.
Great onefor the lawyers: they earn a lump in prosecuting the patents, then leave the s**t hanging around for the chump techies to do free patent busting work.
If this is going to happen, it should be based on an _actively_ votable (i.e. "polling booth") list of patents (or, at least, patent areas) corresponding to important open source projects, e.g. "patents relating to scheduling improvements in operating systems". I think these are more important than "1-cluck shapping".
"2. The US government is pro-business (as it should be, IMHO). However, this translates into the default standing order at the USPTO being "accept", and not "reject" (whereas most /.'ers want to see "reject" as the default position)."
FYI
Giving the benefit of the doubt to the inventor is not "pro-business", it's because (and the same principle is followed in the EPO, and probably elsewhere) when the examiner can't tell one way or another, it should lean towards granting the patent: and if the patent is dodgy, then it will be resolved later.
The real problem is just that: in the EPO and elsewhere, there is a decent opposition system, where anyone can file and participate in opposing the patent. In the USPTO, the "re-examination" procedure is very limited and very poor.
I mean, just think of the scientist that comes up with an amazingly new novel way of doing something, but the examiner (who, you have to admit, could never be as on top of the field as a star scientist) isn't "quite" sure: denying the patent would be outrageous. By definition, inventions are novel and non-obvious: and that means "they go where no man has gone before", thus it's not surprising that figuring them out can sometimes be a problem.
No.
2. The US government is pro-business (as it should be, IMHO).
No, it should be pro-*citizen*, not pro-business. USPTO being pro-business is the reason we're in the situation we're in. Patents and the patentability of ideas should reflect the good of the citizenry, not the business merits of the idea in question.
Patents for an idea makes sense, in part, when an inventor wanted to protect his or her ability to profit or control the result of their effort. Patents and intellectual property protections were designed to prevent people from using your idea or effort to their betterment at your expense. So far, so good. There's very little to argue with as nothing contained in the previous contains anything unreasonable.
Where the process has become abused is when the Patent Office began taking patent applications that didn't require a manifestation of some sort to "prove" your effort is unique or uniquely yours. There's nothing tangible in many of these contentious patents. They're just "ideas" and "descriptions". There's no "proof" or "gadget" that you can gin up to bolster what you're trying to protect. There's no math or engineering involved, such as programmatic effort or time in a machine shop.
That is where the demarcation should begin. When Xerox sued Apple and lost over the use of graphic icons on a 2D screen and similarly, when Apple sued Microsoft over "look and feel" and lost; That should have established the ground rules and in my opinion, neither Xerox nor Apple had a case. Instead, people have been testing the upper limits of what patents protections ever since based on nothing more than the motto, "You might get lucky.".
Mod me troll, if you must, I can't help it.
Pro is to Con like Progress is to Congress.
Unless you're a CEO of a large corporation or otherwise are a Man Of Means, there's no chance in hell to influence congress. And not only do you have to influence congress, but you have to influence a majority, and influence it *more* than your opponents. Which are the big companies holding the patents.
Yes, we have the best government money can buy.
Regards,
--
*Art
None of the items on the "patent hit-list" is what I would consider a high-profile "stupid" patent. These are all patents that are out there being enforced on a daily basis and are causing problems with business
They make no mention of the plethora of inane patents that have been granted (double-click patent, spam filter patent, swinging sideways patent).
The approach they are taking seems less likely to cause a big stir, because they are going to be hard fought with little gains in patent approval procedures
It seems to me that the easier way to get things to change (for the better) would be to gather up a list of 100 patents and systematically prove that every single one of them was extremely foolish to grant. Embarass the USPTO in the media with obvious claims of prior art.
Basically what we are looking for here isn't a few patents to be overturned, which is what the EFF is trying to do (its a nice start, don't get me wrong), but rather we need a change to the system, and unfortunately it appears it can only be done through an act of congress or through repeated abuses of the USPTO in the court system...
I'm scaling it down significantly here... but if your factory employs 100 people and makes a profit of $500 a year, but by closing it down and sending those 100 to a R&D lab they can discover new things they can make more money with the same amount of people.
Overly simplified, but its a matter of reallocating your resources more efficiently.
Wouldn't it be easier to actually find out what the 10 sane ones are?
I love C++
Not over-simplified. Business managers do the same thing every day.
Oh, and all your cost savings from laying off the factory workers is going to be more or less eaten by paying for their unemployment, and then paying for their replacements to be trained when you go to ramp up for production again.
"Learning is not compulsory... neither is survival."
--Dr.W.Edwards Deming
If these stupid patents aren't allowed to be created in the first place then groups like the EFF wouldn't have to fight to get them overturned later.
It's not just stupid patents that are bad though. Patent squatting (just sitting on patents) should be 100% illegal, as it just impedes the use of certain ideas by making them more costly than others.
Patents were intended as a means of helping inventors get novel products to market by creating a brief and artificial "honeymoon" period. Patent squatting is a complete corruption of that idea.
If you are not bringing product to market, you have no moral right to sit on an idea in the hope that someone else will do the hard work of developing a raw concept into a working reality. Companies with teams of lawyers that merely patent squat and actually create nothing are simply scum.
Patents should expire by default within 3 years unless you confirm in writing to the patent office that you are actively working on something that uses the patented idea as a central component or feature. And *all* patents should expire within 10 years, regardless, because skewing the market this way should only be a temporary condition.
Increasing the cost of ideas is not in the interest of humanity at all.
"The question of whether machines can think is no more interesting than [] whether submarines can swim" - Dijkstra
I can't say I find denying someone who has a (legal) right to a patent worse than giving one to someone who doesn't have the right. In the former case, one person's business/investment is hurt (with a small chance that he won't be able to do other research thus hurting society/innovation as a whole, but how many "lone-inventor-turned-super-innovating-company-tha nks-to-patents" stories do you know?). In the latter case, all other businesses and society as a whole are hurt. Keep in mind that there is no moral right to a monopoly on an invention.
Unlike copyright, patent law is a purely economical law, so unless you have proof that more patents = better economy under all circumstances, denying patents in case of doubt does not necessarily go against the concept of the patent system.
Donate free food here
There are good reasons for not patenting something. The tradeoff to patenting something is that you tell you have to tell the world how to make your invention, but Congress gives you the sole right to profit from your invention for 20 years from the time the patent application is filed.
On the other hand, you can keep something a trade secret. That means you can pofit from your invention for as long as you can keep other people from figuring out how to reproduce it. Trade secret law covers your employees selling the secrets, but your competitors may be able to legally reverse engineer your invention.
And you don't want to start fining poor patent examiners. These are usually recent grads with a tenuous grasp of the English language from crappy schools. Don't forget, they ARE government employees.
It's the process of getting patents granted that's the problem. Most patents get rejected the first time. However, an applicant can purchase an unlimited number of re-examinations, chagning the wording of the patent slightly every time. Patent examiners only get credit for examining a patent the first time, and when they finally close the patent. You bother them enough, and they'll eventually grant your patent, or part of it at least.
As for fining those with dodgy patents, if there's a real question of whether or not a patent is valid, it'll end up in court. And what happens when Microsoft starts threatening some Mom & Pop operation with having a patent overturned and massive fines? How easy would it be for Gates & Co. to say "We have thousands of lawyers, and if you try to stop us from infringing on your patent, we'll get your patent invalidated. If we do, you'll go bankrupt."
I think what the parent was getting at is more along these lines:
You can have 100 factory workers producing products that net you $500 profit.
or
You can have 100 researchers developing prodicts that net you $1000.
His question is: Why can't you have 100 factory workers and 100 researchers make a profit of $1500? Is it really less expensive/more attractive to destroy and rebuild an otherwise perfectly good infastructure and workforce than it is to add to it?
=Smidge=
$770 to file the patent (assuming it comes in under the 20/4 total/indpendent claims allowed) + fee X + fee Y during prosecution. Application is allowed. Now pay issue fee + maintenance fee 1 + maintenance fee 2, etc.
Second scenario:
$770 to file the patent + fee X + fee Y during prosecution. Application is rejected. No issue fee. No maintenance fee.
See the problem? No real monetary incentive to reject a patent. The PTO isn't harmed by patent litigation, so let the holder/infringers battle it out in court. No skin off the PTO's back.
Like most things that take away freedom, the patent system will always be under pressure to encroach more and more which will always lead to problems like this.
When you assert the right to punish people who copy and immitate for any reason, innocent people are going to get hurt no matter how nice you try to be.
Um... If your factory makes a profit of $500 a year, and you sell it, then you make $500 less each year than you would have if you had kept the factory and hired 100 more people to be researchers.
Remember, profit = earnings - expenses. The wages of the 100 people working there have already been paid by the time you get the $500 in your hand.
Having both a factory that makes a profit of $500 a year and a research lab that makes a profit of $10000 a year gives you a total profit of $10500 a year. Having only the research lab makes a total profit of $10000 a year. In other words, it doesn't make sense selling any profitable operation, unless of course you can make some sucker pay more than it's actual worth, and then get another sucker to sell you another factory for less than it's actual worth.
Problem is, this means that there's at least one sucker per every financia genius, and everyone thinks they're the genius and not the sucker ;)...
No, in this example it's more like throwing away a chicken that laids silver eggs because they're not golden. Nothing stops one from having both the gold and the silver chicken...
Impatience is the problem; people rather kill the golden chicken to get the few eggs currently developing inside of it than wait patiently for it to lay them and then the ones after them. Short-term profits over long term ones, that's the problem.
Forget magic. Any technology distinguishable from divine power is insufficiently advanced.