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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?"
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.
a patent can't be tied to a product that has been released into the market place
thats the reason for patent pending
> 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.
That is why it is far more lucrative to issue a patent, and then not to implement it, just wait 1~2 years, and then threaten everyone who use your patented idea to sue them.
After that, people must find a way to avoid the patent, but, because of the late claim it must be a standard for the implemented software, and here comes the problem.
If you've got an idea, you can patent it, but not implement it. If you implement an innovative software, you can be threatened at anytime (think about gif).
That would be quite bad. First, it encourages the PTO to reject patents because they make more money. Second, it further inhibits the "small" inventors from applying because of the risk of additional cost. Only big business benefits from this approach.
Open source and free software protects you from copyright infringment if you follow the licenses.
They wont protect you from patent infringement. Not even a patent search will really protect you as a patent could be granted for something you wrote later. If you cant afford to go to court to get it overturned the triviality or prior art is useless.
Sorry let me expand.
To fully protect a patent, I meant to register the patent in all the countries with large economies. I.E. England, Germany, France, Spain, Japan etc.... that takes about $450,000 USD and must be constantly renewed. And renewal fees do apply.
Normally the threshold for damages or lost sales must be high to make it worthwhile to go after a patent infringer. From what I have heard, most patent lawyers would not recommend it (suing an infringer) unless damages where in the millions (USD). Even then, they can cloud the issue by bringing up similar prior art, or they may have filed similar patents. Which could confuse a jury. Then you have to prove damages, which hopefully will cover your already spent legal fees. Everbody loses in trials, so lawyers generally recommend a solutions nobody likes, specifically a cheap license.
Basically my take on this whole thing is, patents are for large companies. I've read small companies should try to be first to market then move on.
Depressing isn't it.
I agree that software patens are a bad idea, but I would lik to point a few things out.
It takes longer now to get patents than it did before the late 80s and early 90's, mostly because of the backlog. (About 4 years now if there are no rejections, vs 2 years or less previously.)
part of the reason patents are examined so poorly are that no one besides the dregs of the tech industry wants to work for the government. There's a whole lot of non-native english speakers working in the PTO as examiners.
Software wasn't officially patentable, with repect to algorithms, until about 1998. THe PTO had for a long time banned the patenting of "Mathematical formulae". The Federal Circuit Court of Appeals ruled in State St. Bank & Trust Co. v. Signature Fin. Group, 149 F.3d 1368 that math algorithms were no patentable but
mathematical algorithms which were reduced to some type of practical application with a useful concrete result were. The court found that the patent in question fell within this category, which rendered it statutory subject matter, even though the useful result was expressed in numbers, such as price, profit, percentage, cost, or loss.
As far as business methods go, The Business Method Patent Improvement Act of 2000 was drafted to addres some of the problems where people would patent a widely used normally non-computer business method on a computer as novel.