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The Good Old Patent Law - Revisited
trifakir writes "Scientific American talks about the imperfections of the current patent law, subject to the book of two authors from the Harvard Business School. It seems that even business people start seeing the insanity of the current patent system. This time it seems that they are not only criticizing, but suggesting some procedural amendments (e.g. patent conflicts resolved by a judge and not by a jury). Do you think that any of these has chances being heard by the big wigs?"
...the patent office makes more money allowing retarded patents to get through than by being sensible.
This is just an overview of some ideas that have been pinging around slashdot and several other communities for a while. Namely, that because of some small changes that seemed to be for the better, patents are now under the jurisdiction of a court that loves them and the patent office is encouraged to rush patents through without thinking because they get their funding that way rather than from taxpayers.
The failings of this seem obvious after our discussions here, and I think that because the patent office is not supposed to be some pro business advocate but rather, a group of people set up to facilitate innovation into uncharted technologies(hence not obvious and no prior art) now just stifles innovation as obvious extensions of old ideas are inhibbiting their usage in useful R&D.
I think the review shows authors that really stand for a sane position, one that doesn`t completely remove the patent system but rather turns it back into what it was originally intended to be(not giving patents to companies for marketing the PB&J sandwich without crust, yes, its a patent according to the article). When this book comes out, I will be on the lookout because it seems these people have some ideas that need to get some attention and they have the clout to go somewhere with these ideas. Our representatives are only as sleavy as we permit them to be so we have to read up so we have some real knowledge and show our support for a complete overhall of the patent system and a review of many patents granted in the last 10 years(especially technology patents). Kudos to these authors for bringing this debate into what might become the main stream.
It seems that even business people start seeing the insanity of the current patent system.
As long as 'business people' in the form of very large companies are trying to get something similar to US patent law into European Union law, I won't believe in a change of opinion at the top. Everyone knows that the US system is broken, but the odds are still on it being adopted in the EU.
Mielipiteet omiani - Opinions personal, facts suspect.
The imperfections may be subject of those two books, but I really doubt that they are subject to those two books.
"The significant problems we face cannot be solved by the same level of thinking that created them."
[ I can not bring myself to believe that if knowledge presents danger, the solution is ignorance ] -- Isaac Asimov
and the Abuse of the USPTO.
Awaiting 699$,
Darl McBride.
I, have, patented, the, process, of, discussing, patents, Abuse, USPTO, awaiting, 699$ and Darl Mcbride are copyright of SCO Group(tm).
With a jury, at least you know they're generally ignorant and fairly easily swayed, but you can hope they'll all do alright. While a judge would supposedly be an expert on the subject, far too often they might not actually understand the technology at issue... and that's not even to mention what a little judicial activism -one direction or the other- could do.
Instead of fixing the patent system, the authors seem to suggest that a faster-track court system will fix the problem. However, those who an invalid patent will continue to bare the entire financial and legal burden to do so.
Thought experiment: I'd like one of the authors to discredit any flawed patent using their own methods. Will it be very expensive? My bet is "yes".
Will this stop the increasing flow of bogus patents? No.
One of Lerner-and-Jaffe's planks is the idea of allowing "obvious" patents to be challenged (like Amazon's one-click patent). The problem with this is the obviousness of hindsight. What happens to an idea that is merely one grade of brilliance beyond the "obvious"? You have twenty guys coming out of the woodworks saying "I thought of that." It seems to me that the obvious criterion will lead to just as much legal wrangling as the fights over who took which code from whom.
That said, I support what they're doing. I don't think that ideas can actually be owned. (*** ducks ***)
Human being (n.): A genetically human, genetically distinct, functioning organism.
i own patent #782334:
"concerning procedural amendments whereby patent conflicts are resolved by a judge and not by a jury "
you guys try it without the proper licensing from me, and i'll sue you for infringement and prior art and i'll have you tied up court for decades
intellectual property law is philosophically incoherent. it is your moral duty to ignore it or sabotage it
Recently I attended a corporate IP (intellectual property) seminar. I work for a large, Fortune500 company. After 8 hours of 5 lawyers droning I came away with this. The starting cost of protecting a patent worldwide is $450,000 USD, to effectively attack an already awarded patent starts at $450,000 USD. Many companies looking to bust a patent are searching the old Soviet Union's past research journal archives for prior art. They are not computerized and evidently they have proven to be a rich source. They also discussed how some companies patent similar ideas in order to cause enough doubt in the plantiff's lawyers on a clear court victory, so the plantiffs lawyers will look for a cheap license arrangement.
I'm not an IP lawyer but my friend is (!)
Apparently the UK uses experienced judges rather than juries. The judges commonly have degrees in science subjects as well as law. The end result is that courts are prone to seeing everything as trivial and are therefore patent-unfriendly. It really has to be a clever invention to survive. The way it should be IMHO.
Nothing changes unless those with the power to change it are effected. It works this way at work, in business, government...
So due to the patenting policy of all the big companies, no new idea is rewarding for his inventor in the field of software patents. Because a software implies so many ideas, it is subject ot a lot of patents, that is the main difference with the other industry fields.
You should have a look at Richard Stallman's talk about patents, it is far more informative than this article, and also the presented books.
Patents are killing inovation, and let big companies use every new idea thanks to cross-patent licences...
> This time it seems that they are not only
> criticizing, but suggesting some procedural
> amendments (e.g. patent conflicts resolved by
> a judge and not by a jury).
They are proposing a constitutional amendment?
Warning: this article may contain humor, sarcasm, parody, and perhaps even irony. Read at your own risk.
When someone files for a patent, they are attempting to lock down a "non-obvious" solution to a problem.
What if patent examiners posed that problem to other experts in the field. If they come up with a similar solution, patent denied.
The not-a-perpetual-motion-machine award goes to:
Hyper-light-speed antenna!
The invisible-pink-rabbit award goes to:
Santa Clause detector!
The use-the-force-Luke award goes to:
Pyramidal machine!
The suicide award goes to:
Greenhouse helmet!
The sick fuck award goes to:
Bird trap and cat feeder!
-
- - You can't take something off the Internet! That's like trying to take pee out of a swimming pool.
From what I gather, their suggestion is to simply grant all patents, but let judges sort everything out. That doesn't seem much different from what we have now. Only the rich would be able to participate in the process.
My idea: Initially only 10 percent of patents should be granted. I.e., those that obviously should be granted. If a patent examiner grants more than 10 percent, he (or she) should be fired.
The remaining 90 percent should be forced to file a lawsuit to prove the patents grantability. (Yeah, I know grantability isn't a word!)
Even after the patent is granted, the burden should still be on the patent holder at any subsequent trial/hearing contenting the validity to prove that it is valid. Merely holding a patent should not be proof that it's valid.
And lastly, if a court ever rules that the patent is not valid in that subsequent trial/hearing, the patent holder should have to pay treble costs of the litigation to the winner.
Now that'd fix our patent system!
If someone says he and his monkey have nothing to hide, they almost certainly do.
If enough well known personalities and big corporations get involved and start saying the same things, it's very likely you will start to see reform.
GJC
Gregory Casamento
## Chief Maintainer for GNUstep
And for those that say such lawsuits would be a burden on the taxpayers, well, I'd say these bogus patent infrigment cases are taking away needed resources to convict criminals.
And besides, the taxpayers might finally take action once they see the PTO's bogus-patent-granting actions is raising their taxes, instead of only bitching and whining all the time.
AC comments get piped to
The fastest way to change patent law into something sensible is to trigger patent wars.
Adobe is getting hit with a submarine patent for something in it's PDF reader.
I suggest that people who are against software patents help point submarine patent holders towards a big-business' that can be sued.
When big business' can't DO big-business you'll see sofware patents removed really quickly because:
1. Big-Business can't do business
2. Big-business -> "influences" government.
3. Government changes law.
The advantage with that is, it costs only the price of a phonecall/E-mail. The problem is that submarine patent holders are in it for the money and can be bought off so Adobe can keep on making patented software.
So, an alternative would be for the EFF or similar organization to get as many trivial but legal-proof software patents of it's own and use those to completely block corporations like Adobe or MS from selling software with OUR "inventions". You'll see legislation change with lightning speed in our favor for a change.
The patent law situation is absurd, and because average people don't have the insight that we have, we have to SHOW people how absurd the situation is.
Sure, things will get ugly for a while but setting things right once and for all is better than hoping for the best. Even corporations can learn if they have to and this way, they have to. Start the war to teach evildoers a ($100.000 a day) lesson.
Anybody see holes in this plan?
- -- Truth addict for life.
I don't believe patents are under common law, so patent challenges wouldn't qualify as "Suits at common law".
This post written under Gentoo-linux with an SCO IP license.
Read, for example The European Patent Convention on the "Inventive Step" which is required for an invention to be patentable:
An invention shall be considered as involving an inventive step if, having regard to the state of the art, it is not obvious to a person skilled in the art.
In the USA, the Patent Act (sec 103a) reads:
A patent may not be obtained [...] if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains.
(emphasis mine)
The problem isn't the legal requirement, the problem is lack of enforcement due to lax, unwilling or just unskilled patent examiners, possibly coupled with a general "let it pass"-attitude.
If we permit the patent office keep their fees, then they have more incentive to pass more bogus patents. Does a patent examiner want a raise next quarter? Well ghu! He should pass a dozen frivolous patents, all requiring fees and as the office income rises; his raise is assured.
No, keep the USPTO fees in the general fund, but raise the outlay to the USPTO. Base the outlay on inverse performance: fewer patents granted equals more money for the USPTO next year. That will insure that patents are examined carefully since the examiner gets his raise because he rejects patents!
Much (not all) of the present problem with US Patents derives from changes made in the 1980's.
At that time, a typical patent application might sit in multiple bureaucratic queues for years, sometimes decades, as each patent had to be rigorously analyzed and proved to be substantive and unique, new tech, etc. Basically all the work was at the front end of the process. This collided with the rapidly accelerating pace of new tech and new product lifetimes - many products were introduced, sold and finally end-of-life'd before the patent was awarded. Getting a patent was expensive, slow, and difficult.
The Patent Office was basically told by business, Congress and the Reagan administration to Do Something, without spending more money. USPTO quit being so rigorous, and just began to award anything that seemed reasonable, i.e., everything except perpetual motion. The analysis was pushed to the backend, putting the onus of proving the patent upon the patent holder and the courts. This removed a multi-year logjam at the USPTO, without requiring the hiring of hundreds or thousands of expensive new patent examiners with expertise in all the new tech fields. The business community was much happier with this approach, perhaps shortsightedly.
So, since 1980's a patent is more like a timestamp than a proof of innovation. It's a piece of paper that gives you the right to defend your invention. This is arguably a reasonable way to go, in principle. It can mean that the system only invests the cost of rigorous defense on patents that have commensurate value. Individuals and small players can get their timestamp at minimal cost, and then begin trying to make money with it. As we know, there are problems with the new system, and perhaps the proposed changes will fix them.
That period is also when they decided, erroneously IMHO, to accept patents for software. Previously software was considered to be algorithms, which are math, which is "discovered" natural law, not invention. The first awarded patent involving SW as such, IIRC, was a Honeywell patent for a HVAC (or security?) control system that included software in the controller's CPU. Acceptance of SW patents was partly driven by the successful patenting of hardware implementations of algorithms that could also be done in SW. Challenges to the USPTO policy were based on that disconnect. IIRC the original virtual memory patent, was awarded about 1962 for a hardware implementation by a British computer company whose name escapes me.
Unfortunately, opening SW patents at that late date was destructive, because two generations of software builders had worked under a paradigm that depended on either "trade secret" control, or public sharing. This allowed companies to protect their employees' work for a time, but maximized the velocity of innovation by rewarding innovation with respect and increased employability. Patents broke with a long history and tradition. The effect has been to reward minor tweaks while failing to reward those who arguably contributed the most seminal work. While my own work can by no means be considered major, a lot of my work in systems architecture and image processing would now be patentable.
Sharing of information greatly increases its utility, a la the "network effect", and the velocity of software innovation is so high that patents are a poor solution. A SW patent with a term of perhaps 2 years from the date of patent, plus the period between application and award of patent, might be useful. Certainly the mere transformation of a process from hardware to software, or from local to networked systems, should not be patentable, any more than building something in plastic rather than metal should be.
It's easier to be a result of the past, but more fun to be a cause of the future! http://www.spacefinancegroup.com/
A little judicial activism? Hear here! More to it, I say! Let's have more judges who will actually be more than be a rubberstamp for the legislature!
You call it gridlock. I call it checks and balances in action. Don't like it? Well there's always the PRC! I hear their judges and lawmakers always agree.
Sarcastic? Sardonic? There is a difference.
We need to move more towards a system that emphasizes testing the obviousness more than searching for prior art. Prior art searches are expensive and can never be even close to exhaustive, and so will always have huge holes.
How can that be done? The current system makes obviousness impossible to test for, because once the patent is published it looks obvious after the fact.
So in order to test the obviousness, a short summary of what the invention does, without any details of how it does it, should be published while keeping the rest of the patent hidden. If within some predefined time period (say 90 days) somebody can come up with a detailed description of how to do the same thing, or actually implement something that does it, and that implementation or description is similar to the methods described in the patent application, it should be regarded as obvious and the patent not awarded. That somebody else could create it in such a short time, and is willing to do so knowing they won't get a patent for it, is a strong indicator that the alleged invention is simple enough that it does not need the incentive of a patent in order for it to be created.
Of course, some will object saying that for some inventions, the problem or goal is in itself nonobvious and innovative, even if the implementation is obvious. Well, I say even those still don't deserve a patent. Those kinds of inventions do not require the incentive of a patent, because the first person to think of it or someone else would almost certainly create it anyway if the implementation is obvious. If someone else encounters the same problem, they will solve it in an obvious way. If no one else encounters the problem, there isn't much harm done in not having the patent granted.
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There is inferior bacteria on the interior of your posterior.
- Europe: 49.900 euro
- Japan: 16.450 euro
- USA: 10.330 euro
(Page 39 in this pdf. A euro is 1.23 USD.)These are average costs including filing fees to the PTO, and fees to the patent attorney drafting the patent. The costs for actually making the invention are of course not included, however. The reason why European patentets are so much more expensive is mostly because they have to be translated into so many languages.
The parent's estimates for what it costs to do patent litigation are also in line with what other sources quote. So when someone comes and claims that patents are to protect the little guy against big corporations, it's good to have these numbers in mind.
Christian Engström, Former Member of the European Parliament 2009-2014 for The Pirate Party, Sweden
I think one would remove a lot of the court sleeper patents if:
1. Patents were only issued to a demonstratable working device.
2. Patents were non transferable where the "rights" could not be bought or sold from one company to another.
3. For each patent category, peer standards commitees, for example such as IEEE, would oversee the initial granting, and re-evaulation.
The unfortunate part is that it is a balance between protecting the ability of someone to innovate and create with some protection from the vultures versus the same vultures planting the landmines trying to extort money from people trying to create new ideas.
The real question is : How do you balance both sides, when you can't count on any level of ethics, and really only greed, to drive decisions?
Allright! Concentrate the power so there is only one person to bribe!
Insert Witty Remark Here ===>____________________________
Why not charge a percentage of licensing revenue? This puts the burden of maintaining the system on those who benefit most from it, and encourages more patents to be licensed for free.
Give me Classic Slashdot or give me death!
So in order to test the obviousness, ... is a strong indicator that the alleged invention is simple enough that it does not need the incentive of a patent in order for it to be created.
I see this line of reasoning here all the time. However, just because something is simple does not mean that it is obvious. It works the other way around to: an obvious idea is not neceissarily simple. Please stop equating these two concepts.
"I have a porkchop, you have a porkchop. I have a veal, you have a veal".
Seeing as how patents numbers are not in the six million range, your patent would have expired sometime in the 1900s.
"However, just because something is simple does not mean that it is obvious."
I know that simple is not the same as obvious. Which is why I deliberately used the word "simple". My point is that if it is simple enough that somebody else is willing and able to implement it in a few weeks without the incentive of a patent and without knowing the details of the patent application, then the proposed invention does not need the incentive of a patent for it to see the light of day, even if it is nonobvious.
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There is inferior bacteria on the interior of your posterior.
INAL but I think that might require an amendment to the US constitution.
If not, you can read the speech he gave in Cambridge 2002
Christian Engström, Former Member of the European Parliament 2009-2014 for The Pirate Party, Sweden
Sometimes there's no dispute over the facts:
See, there's no disagreement about facts that actually happened in the world (where Fred was, whether he was carrying a certain knife). There's a dispute over how the court should interpret the law. Juries only decide questions of fact, not questions of law. Judges decide questions of law. The judge above now has to pore over the statute and prior appellate decisions about switchblades, and decide if Fred's knife is a switchblade or not. Typically there's mixed questions: "My client Fred (a) was only holding that knife because he'd just found it on the floor the moment that the cops burst in, and (b) anyway it's not a switchblade [insert legal argument similar to above]". (a) has to be tried by the jury but (b) is decided by the judge.Now is patent infringement (Fred is manufacturing knives exactly like this one, and they infringe my client's patent) a question of fact, or a question of law? The central question is whether the claims in the patent cover Fred's knives, which is a matter of legal interpretation. As such, it should be decided by a judge and not a jury. There's usually related factual questions like whether Fred is infringing on purpose; how much damages the patent holder really suffered; etc., and those may have to be decided by jury. Juries aren't supposed to decide questions that are entirely legal rather than factual.
Copyright law has the notion of "fair use", which comes from the tension between copyright (a set of laws that let you get sued or prosecuted for printing the wrong stuff on your printing press) and the First Amendment (which says you can print anything you want). Copyright guru Melville Nimmer explains (quote taken from FSF brief in Eldred vs Ashcroft):
The courts resolve the tension by saying some limited ("fair") usage of copyrighted material is permissible whether Congress likes it or not. Also, in order to infringe copyright, you have to actually copy stuff, not just write something similar independently. The same Constitution both authorizes copyright and promises freedom of the press and so the courts have to find the correct balance. Neither of the two can shut out the other.Patent law doesn't have a comparable notion of fair use. There's no first amendment right to manufacture a particular configuration of mousetrap, so Congress can go further in assigning rights to patent holders than it can to copyright holders. You can infringe a patent even by developing the same invention independently, etc.
This is problematic for software, which is published rather than manufactured, and in the case of source code, is protected by the First Amendment (vide Bernstein vs. US, not a copyright case but rather a case about whether the government was allowed to stop Bernstein from publishing cryptography code). The Supreme Court in Eldred stupidly didn't strike down the Mickey Mouse Protection Act (that extended copyright retroactively), but it did admit that new copyright legislation
Now where does this go about what businesses think of patents? The point is that there's more fundamental viewpoints to consider. Businesses for the most part don't give a rip about free speech; if anything, they want to suppress it. And so if they're allowed to decide software patent policy, programmers' civil liberties aren't going to matter at all to them.
Good policy has to be made in the interests of the public, not just for special interest groups such as software vendors. So the notion that "well, industry is upset about the patent system now, so our belief that the system is bogus must be legitimate" is dangerous. The system is bogus no matter what industry thinks. We need to reform it for the good of the public, not just for the good of industry.
I actually made some comments about intellectual property rights in my blog actually. In a nutshell I am thinking that it should be removed, because having it removed benefits more people than a select few in the big picture.
Archie - CIO-for-hire
1) Find $699 in play money (old Monopoly game, hand drawn, whatever).
c k/index. html
2) Send it to:
The SCO Group
355 South 520 West
Suite 100
Lindon, Utah 84042 USA
(801) 765-4999 phone
(801) 765-1313 fax
Contact SCO online
http://www.thescogroup.com/company/feedba
Darl C McBride
1799 Vintage Oak Ln
Salt Lake City, UT 84121-6539
Darl's home phone #: (801) 424-2006
Darl's office phone #: (801) 932-5820
Email Darl: darl@sco.com
3) Send Darl a bill--the play money & stamp were worth more than a Linux license.
"Do you think that any of these has chances being heard by the big wigs?"
Answer this question: Does it make more money for the businesses that line the pocket of our government?
If the answer is "Yes," then the chance for these ideas being heard by 'the big wigs' is very good indeed.
If the answer is "No," then welcome to the land of irrelevance, my friend.
That reminds me. VOTE!
The most elegant way to change the patent system--one that would only require a few lines of new code but would have far-reaching consequences--would be to add independent invention as an affirmative defense to patent infringement. In other words, if someone can prove they legitimately invented something without pilfering from a boda fide patent holder, excuse them from legal liability (defendant bears the burden of proof). The economic logic is subtle: suffice it to say that it creates strong incentives for people to license their inventions at competitive (rather than monopolistic) prices. This approach best balances the need to protect new invention while avoiding the "deadweight loss" from monopolistic patents. I wrote about this at length in law school. Unfortunately it is not posted online, but you can get the citation by going to: http://www.yale.edu/yalelj/111/111-8.html
This is the Richard Stallman approach and can only conceivably work in something like software, or any field like it where a new invention can occur because the inventor did it just for fun or necessity, or basically without intention of a big return. Any form of research & development that demands more resources and manpower than a few curious individuals can provide (in other words: nearly all) NEEDS a working patent system. Otherwise your researchers don't get compensated for all that time they put into the project. You expect them to walk away pleased simply that they helped further science? Nobody is that self-actualized unless they're already filthy rich.
Recall that patents are TEMPORARY. Someone researches a new doohickey, builds it, patents it, and gets all the return he can demand from it *for a time*. Then, after he has earned back a profit from their investment, the idea is now free for others to build upon without legal hassles, and the original researcher is very encouraged to innovate again. In fact he is driven to, because that other invention doesn't make him special anymore. He can't just sit on his thumbs and absorb money forever. That's what the patent system is FOR. To help motivate new inventions. We don't need to abolish it, it needs reform.
Your scheme of abolishing intellectual property only works in a perfect Gene Roddenberry fantasy world where money is never an object. Whether the IP system is there or not, your self-actualized people are going to create the things they're going to create anyway. Why remove the only incentive for those less motivated? You would sacrifice the majority of inventions, just so the remaining ones get into the public domain faster? That sounds kind of selfish.
I have a few inventions floating around in my head; my roommate and I plan on trying to get one or two of them published and developed. Our sole incentive: our good ideas could *make us some money* by helping a lot of people out. Why the HELL would we come up with a device, go through the hassle of publishing and patenting it, and just give it away to every company that wanted to sell a knockoff? Doesn't make sense to me.
I don't want to insult you, Archie, but I think perhaps your view of the intellectual property situation has not been fully thought out.
Reinterpreting patent law in this way and making it stick would put the kibosh on just about all of the patent antics that are causing such consternation. I'm not holding my breath, though.