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The Difficulties of Patent Busting
wheresjim writes "An article on CNN.com entitled 'Tough road for patent-busters' describes the hard road one has to follow to get a questionable patent revoked. According to the article, of the approx 7,000,000 existing patents, only 614 have been revoked, and only 3927 have had their claims narrowed."
patent the process of getting a patent revoked.
Drill baby drill - on Mars
SAN JOSE, California (AP) -- A small company called Acacia Research Corp. went after some of the biggest names in broadcasting last month, suing nine companies for an estimated $100 million for allegedly violating its patent on streaming video.
That earned Acacia a spot on what the Electronic Frontier Foundation considers a top 10 list of intellectual property ignominy: patents the online civil liberties group is seeking to strike down as unwarranted and harmful to innovation.
"Good luck," said Paul Ryan, Acacia's chief executive. "Their chances are pretty remote."
Part fighting words. Part truth.
Only 614 of the nearly 7 million existing patents have been revoked, according to the U.S. Patent and Trademark Office. Some 3,927 patents have been narrowed since the agency began conducting re-examinations in 1981.
The hardest part for challengers is qualifying for a re-exam at all.
A challenger must find written evidence, called "prior art" in patent parlance, showing others developed the technology before the patent application was filed -- a formidable task that consumes a cottage industry of patent researchers and lawyers.
One-time startup BountyQuest set out in 2000 on such a quest. It wanted to debunk questionable patents by letting interested parties offer rewards of $10,000 or more for hard-to-find prior art. But there were few takers and the business failed.
The EFF is similarly relying on volunteers -- but without offering rewards. That's a surefire recipe for limited success, said Bradley Wright, a patent lawyer with Banner & Witcoff Ltd. "There are not a lot of people willing to spend free time to research for prior art."
Even when prior art is presented, re-exams are rare. The patent office held only 6,136 between the time the agency was authorized to do so in July 1981 and the end of March 2004, said Brigid Quinn, a patent office spokeswoman.
Intellectual property
The Acacia patent the EFF objects to is on "the transmission of digital content via the Internet, cable, satellite and other means."
Another on its list, owned by Clear Channel Communications Inc., covers the distribution of digital recordings right after concerts.
"These companies are trying to claim a monopoly on the tools of free expression," said Jason Schultz, staff attorney at the foundation.
The group's list, chosen from 200 suggestions solicited through its Web site, focuses on patents it contends are being unfairly used to demand licensing fees from rivals or individuals.
Acacia and Clear Channel defend their patents and their right to seek royalties for intellectual property they say they spent millions to develop or buy.
Clear Channel bought the so-called Instant Live patent two months ago. It plans to charge an "extremely small" licensing fee -- $1 per event in some cases -- to artists who want to distribute freshly minted CDs after their concerts.
Acacia's digital media patents, granted to the founders of Greenwich Information Technologies in the 1990s, weren't enforced until Acacia bought them in 2001. Acacia has since secured dozens of licensing deals with companies ranging from adult entertainment sites to The Walt Disney Co. It sued the large cable and satellite providers for patent infringement last month.
Ryan rejected the foundation's charges of bullying. "We're not trying to restrict anyone's freedoms, but we'd like to be paid for the use of our technology," he said.
Schultz and fellow self-anointed patent-busters hope their crusade will raise awareness about concerns the patent office is issuing baseless patents because it lacks the resources to thoroughly investigate patent claims.
"It's too easy to get a patent and too expensive to defend," he said.
Greg Aharonian, publisher of the Internet Patent News Service and founder of www.bustpatents.com, questions the validity of a patent granted to Microsoft Corp. in June covering the use of the human body to transmit powe
Hopefully some of the new MS patents will be among the patents that get revoked... Patenting the 'double-click'... come'on!!
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It's a shame how Einstein had to go into physics; we really needed him at the patent office. What a waste.
I regularly report MSN spam to the Hotmail admins.
It worries me that the patent office assumes that wrong patents will be over-turned however makes it so difficult to do. They can't have it both ways, they either need to start doing their job correctly OR make reviews easier.
/Manip
Why not link to the EFF's patent busting project to get some decent quotes from Jason Schultz? The ones on CNN were very weak and seemed to imply we are just whining about people having important patents... not that they have invalid patents which should never have been granted.
I'm finding it increasingly hard to take intelectual property seriously. Patents (while I understand why we have them) are turning out to be a huge, sad joke. They have become weapons for business
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My Grandpa used to tell me about how, back in the day, rival companies would pay thugs to form a mob and go bustin' up each others' patents with nuthin' but axe handles and gumption...
Maybe that's the solution.
Unknown host pong.
The problem is the patent office doesn't have enough bandwidth to deal with current patents, much less overturn existing ones. There's a quote in the article by a member of the patent office saying that the goal is accuracy balanced very heavily against speed. All of the reviewers have quotas they have to meet, and it takes a lot longer to review a hairy software patent than a physical invention with drawings, but they aren't given the time. There wasn't even a mechanism for overturning patents until 1982, so its not suprising that they aren't good at it yet.
But most patents go through several rounds of non-final rejections by the review board for overly broad claims. By the time they're issued, there's a resonable chance for most of them (please note the qualifiers) that the claims are valid.
When trying to invalidate a patent, there's several good ways:
Patents are actually often very specific, and a company that wishes to sue another for patent infringemnet will find out too late that theirs is so, and the defendent is in fact not infringing on their too-specific patent.
Cheers, Matt
Terrorist, bomb, al Qaeda, nuclear, yellowcake, kill, assassinate. Carnivore is dead... long live Echelon.
Yeah, may as well expect that people will spend hundreds of hours working on software that they'll give away for free. Hey, maybe they'll even give away the source code! Bwahahahaha, those crazy kids these days.
Bad management trumps ideology - Show the world you want better leadership. http://www.timefornewmanagement.com
This is a serious question, not meant to flame. Has any one actually recently used a software patent offensively? I know most firms get them for defensive purposes only, not to go sueing other companies. Has there actually been lawsuits to test the validity of a patent on an algorithm?
The 614 out of 7,000,000 comparison doesn't really offer much useful information. First, the 7,000,000 figure appears to be all patents ever issued by the USPTO. However, it appears that the USPTO has been accepting these re-examinations only since 1981. Further, we're given no idea as to how many requests for re-examination have ever been filed. What would be nice to know is the success rate of having a patent revoked (declared invalid, etc.).
How can we expect other countries to respect our patents if we continue allow such patents to continue to be filed?
The patent process must obviously be flawed. How else can they explain how so few patents have ever been voided? They can't claim that the application process adequately weeds them out when you take a cursory glance at the crap that slips through. The whole damned system is screwed up.
said Bradley Wright, a patent lawyer with Banner & Witcoff Ltd. "There are not a lot of people willing to spend free time to research for prior art."
Newsflash: CNN reporter publishes self-serving lawyer ad for their services.
--
make install -not war
Patents were supposed to Enhance Inovation, not Stifle it. The whole process needs to be reviewed and probably reworked, it just cannot seem to deal properly with modern technology.
The article doesn't include the Markman hearing results that were filed on tuesday. After the filing ACTG lost 40% of its value. Judge Ware ruled against Acacia several times and even invited the defense to file for summary judgement on a significant number of claims. It is not the end, but let's hope this is the first step. More info on Acacia at - http://www.fightthepatent.com
See this leaked HP memo revealing Microsoft's patent strategy with regard to Linux and Open Source. This is why we must reform the patent system.
or even patent the concept of a meta patent? Hey slashdotters, burn a few neurons figuring out what one of those is. Idea 2: Just get RMS to lecture the patent office on the patent absurdity of patents.. (sooner or later someone will jump. The real hackers will grab all the cookies, and we'll all go off home and watch I Robot (or not??).
Benkler Lecture This is the most though prevoking essay I think I've ever read in favor of Open Source and the problems with the current state of the patent system.
What if Digg added local news and a Slashdot inspired comment karma system? ---
http://houndwire.com
One of the biggest problem is the so-called submarine patent.
It would be nicer where after the patent is issued, they do a follow-up check a year or two later to be sure that you've made progress on actually building/using your invention, otherwise it's invalidated.
Similarly, if you don't actually sue anyone for patent infringement for a period of say, 5 years, you should lose your patent. There's too many companies that hold patents and wait until there are a signifigant number of companies to sue before starting anything. While it makes sense from a business standpoint (most bang-for-the-buck), it seems totally against the ideas behind having patents.
Speak before you think
First of all, the most important factors relating to whether a patent can be overturned or not are the actual claims in the patent. No statistic can save a facially invalid patent.
Next, there are procedural and statutory hurdles that do need to be overcome, but the statistics in the CNN article is misleading. This is because while 7M patents might 'exist,' a smal small percentage of them are actually maintained. The percentage of patents that generate net positive revenue, either through licensing or direct sales of products is miniscule.
Finally, valuable patents do get litigated, but they are a small percentage of the above net profitable patents ("at most only about two percent of all patents are ever litigated, and less than two-tenths of one percent of all issued patents actually go to court." [emphasis mine; quote from linked SSRN paper.])
Rational firms/inventors will be willing to spend P(n-$0.01) in the cost of defending a patent, where n is the net revenues derived from the patent and P is the probablility of successfully defending the patent. (Note that P is affected by not only the substantive validity of the patent, but also procedural issues, such as the financing of the patent's challenger and the cost of litigation to them).
Bottom line: crappy patents will fall quickly if they are crappy enough, barring unclean hands on the part of the challenger.
Now if you could all focus some positive energy my way so I can pass the bar exam that I will take in less than 2 weeks. I promise not to patent the process of harvesting said energy.
cleetus
Why doesn't the open source community apply for patents?
I mean if OSDN and its members start patenting software, it would keep it open, would it not?
FIGHT FIRE WITH FIRE.
Reform patents by ensuring good review processes up front is a step in the right direction, but it's the process of overturning patents that most needs reform. Preventing future damage is not enough. We need a way to repair the immense damage that has already occurred.
"The real question is how do we help the patent office so they don't issue the crap in the first place?"
The patent office should charge a royalty. Corporate assets include valuations of their patented intellectual property. Their corporate federal income tax should include their percentage of the total of those reported assets as a percentage of the tax collected for running the Patent Office. That would not only finance the overburdened system that perpetuates their "limited monopolies" over their patents, but also encourage them to valueate their assets appropriately. And to obtain patents on only those inventions from which they derive profits, which are their only justification for that limited monopoly.
--
make install -not war
Only 614 of the nearly 7 million existing patents have been revoked
Only about 3,750,000 actually could have been reviewed. This is the number of patents since 1964 (1981 was first year they could be reviewed and so anything before 64 would have expired).
Also, how many actual disputes are there?
There are many really crazy patents so these never get challenged.
There are patents that are too ahead of their time so they expire before anybody needs them.
Then you have the "my patent stack is bigger than yours" where its easier to threaten counterclaim than to invalidate a patent
Even when prior art is presented, re-exams are rare. The patent office held only 6,136 between the time the agency was authorized to do so in July 1981 and the end of March 2004,
The important question is how many times prior art has been presented vs how many times was there an overturn. I think that would give us a better indication of how well the review process works. If people/companies think its too expensive to find prior art, thats a business decision not a problem with the patent system.
D6 63 0D 70 89 81 BB 8E 7B 7C 5F 5D 54 EA AB 73
At one time the passes through the Alps were controlled by "robber barons" who taxed trade from the Mediterranean to the developing nations of Western Europe. In another era cartographers were secreted away as were their maps that held the trade routes to the spice trade and the new world. As world trade develops, trade pacts like NAFTA and the European Union have slowly opened markets while trying to protect the home markets of the various participants. Patents are the means to ensure profit in markets open to trade pacts. The intellectual property rights are the controlled mountain passes of today. Patents enforce a tax on trade. Patents ensure profits at "home" while permitting free trade and the development of new markets in the third world.
"Academicians are more likely to share each other's toothbrush than each other's nomenclature."
Cohen
I hope that the EFF will succeed in busting these patents.
Treehugger? Treehugger... Treehugger!
The next site to slashdot will be ready soon, but subscribers can beat the rush and start slashdotting it early!
They can't have it both ways
That is a very good point.
Unfortunately, the conflict of interest created by their earning money from each patent ensures that they are not institutionally able to act ethically in this, and so they do indeed have it both ways.
The fault lies in their very foundations as a money-making organization. The fact that their actions are massively stifling innovation instead of promoting it would not be escaping their attention if this were not the case. As things stand though, they cannot possibly afford to listen to the worried whispers of their collective conscience.
"The question of whether machines can think is no more interesting than [] whether submarines can swim" - Dijkstra
"...show me a cool mp3 player with an LCD display that is made from paper..."
Ummm...slow down there bud. I have a patent on that idea and have not licensed anyone for the actual development of it.
...it's 96.42363426 actually.
I know that's the right answer because I just pulled it out of my arse.
I am NaN
They could just use Slashdot's Mod numbering system and a public revue site for that.. MS wouldn't stand a chance.
** "It's not my job to stand between the people talking to me, and the ones listening to me." -- Pego the Jerk
Of those 7,000,000 patents, how many are WORTH challinging ? Most patents actually have no value, other then to the lawyers who get paid to file them, and the PR people who put out another press release. My guess, of those 7e6 patents, probably 1% actually have any real value, or have enough value that it would pay to hire a lawyer also, if re exams have been allowed only since 1982, then the first 3 or 4e6 patents are no longer valid. as the old patent atty says, millions try, thousands make money.... Finally, most large companies are pretty carefull; if IBM or merck or ford or PPG files a patent, they have probably done a lot of work before filing. So, there is the same problem with this statistic ( x out of 7e6 ) as with mutal fund statistiscs: survivorship bias. most of the bad, challengable patents (or bad mutual funds) don't survive review by corporate (of course, these are stats; u can always find lots of conter examples; but are they statisctically significant ?
Well, of course one starts out with as broad a claim base as possible. Doing otherwise does not make business sense.
With that kind of "business sense", your cash registers should be configured to regularly charge more than the advertised price and only back down if a customer challenges it.
If you really want to know whether a PR flack thinks of his companies patents as "intellectual property", ask him whether the company should be criminally liable for trying to take "property" that isn't theirs by filing an overbroad patent.
The comfortable smugness of this modern-day pirate really galls me. I wonder how cocky he would be if he drove home one night after a hard day's work and found a pile of smoking rubble where his house used to be? Or if his car blew up in his face one morning when he turned the key? I'm not threatening or advocating doing any of these things, but surely thoughts like these must be going through the heads of many borderline psychotics, who feel that the world they live in is essentially being stolen piece by piece, in plain view and with the full support of the government.
The only reason people get away with this kind of crap is that they know they can depend on a certain level of civil behavior on the part of everyone else. They seem to feel that as long as they perform all the legal technical details correctly, nobody can touch them. They are like people who step purposefully off the curb with nary a glance at the traffic, confident that as pedestrians they have the legal right of way over cars, and therefore nobody can possibly run over them.
But there is a limit to people's willingness to bend over and squeal like a pig. At some point the possibility of getting caught and going to jail is not enough of an inhibitor. As acts of political terrorism become more commonplace, I think we are going to start seeing acts of domestic terrorism against individuals who flaunt their abuse of the system. I don't look forward to living in that type of environment, from a moral standpoint I can't say that I will completely blame the terrorists.
This is a bad analogy because it involves screwing the customer over. A patent lets you put your competitors out of business or it makes it significantly hard for them to do what you do, thus giving you the advantage.
A better analogy would have been that everytime your comptetitors use their cash register, it deducts a little from their pockets and adds to yours, which is exactly what a patent license is.
A patent is a business tool to put your competitors out of business. Yes it sounds harsh, but a business is about maximizing profit. Not being a nice guy. Is this nice? No. Is this popular? No. Will this make you very very rich because you are the only one customers can turn to? Yes. See the motiviation for grabbing as much as you can? Why put X and Y out of business when you can put X, Y, Z, A, and B out? If the patent office says you can't claim what A and B do, fine. Amend your claims to cover X, Y, and Z. But what is the point of just going after X when you still are competing with Y, Z, A, and B?
-truth
I had a steady B+ in my AI class until I failed the Turing test...
AGAIN: the MS patent is strictly for a new way to control a PDA device. It is _not_ about mouse double-clicks or whatnot. So please spare me the inflamatory "Microsoft patented the double-click!" bullshit.
Here's an idea for all you "all software/interface patents are bad/obvious" or "waah! but they're threatening small companies" folks:
Maybe you actually work for one of those threatened small companies or OSS projects. How much _research_ does your company do? Chances are it's _zero_. Nada. Nil. Zilch.
How many mathematicians researching new algorithms does your company pay? No, I don't mean "mathematician turned to programming crappy web sites in PHP or VB.NET". I mean how many are paid to actually do _research_? Zero, huh?
You oppose interface patents, such as Microsoft's double-click? OK. How many usability experts do you have on your team? Heck, how many are on your company's payroll? For about 99% of companies: zero.
If you do have one, when was the last time he/she actually did any usability _research_? You know, get a group of grandmas and actually try various new kinds of interfaces on them. Never, huh? He/she just regurgitates other people's results from books, huh?
So what do we have here? An entire industry which spends _maybe_ 1% of its funds on research, but mostly goes about just copy-and-pasting other people's work. Even if from a book, but still straight copy-and-pasting.
And you still don't see the kind of problem that lack of software patents has created? Geesh.
Compare it to the chemical industry, another heavy-on-the-IP industry, and see how much do those research. A helluva lot more. You know why? Patents. Because they're allowed to actually have 20 years benefit from that research.
Without patents they too would probably be at a point where everyone brews penicilin and aspirin cheap, but not much else. Because noone researched much more than that, for lack of any financial incentive to research.
And the benefit for society as a whole would be? Even with patents everyone can still make aspirin cheap. Because patents expire in 20 years. And we can make a lot of other stuff cheap, because those patents expired too. On the whole we're actually ahead, because those patents encouraged research.
And, you know what? I'd very much like to see that happening to software too. Back to the MS patent, at least MS actually did some research concerning PDA interfaces, which is a helluva lot more than other people did.
A polar bear is a cartesian bear after a coordinate transform.
It's just like nuclear waste. It won't go away for a few hundred years.
File it with the USPTO, where no one cares about prior art.
USE HOT GRITS WITH STATUE OF NATALIE PORTMAN (NAKED AND PETRIFIED)
of the approx 7,000,000 existing patents, only 614 have been revoked, and only 3927 have had their claims narrowed
True enough, so far as it goes, but misleading in fact. While it is true that 3927 patents were narrowed throught a USPTO administrative process called reexamination, and 614 patents were revoked, to compare those numbers to the 7 million patents issued without more is nothing short of ludicrous.
First, while 7 million patents issued since the late 18th century, patent reexamination has only been around as an administrative process since the early 1980s. The relevant measure for the ease of invalidating a patent through reexamination would consider not the total number of patents issued in the last 200 years, but rather the total number of reexaminations in the last 20.
Second, patent are invalidated through many processes, reexamination being but one of them. Patents may be, and are, invalidated through litigation and patent interferences as well. None of those statistics were offered.
No, it is not easy to invalidate the patent. But yes, it is very easy to lie with statistics to try to prove that point.
To make it easier on the overworked patent examiners I added the following text:
To:
SpamByte: Game Over, Spammers/Computer Crackers
If the above text doesn't stop junk patents
derived from the info at the above URL, nothing
will!
It is the extremely pecuinary attitude such as this that caused poor contries to make their own generic AIDS medicine rather than pay the exorbitant royalties that originate from AIDS medicine patents held by rich pharmaceutical companies. I've heard that some of the medicine companies decided to 'look the other way' and let the generic AIDS medicine be made to benefit the indigenous population so long those medicines were not 'exported for sale'.
my prediction....
OK, slashdot is US centric, the rest of the world is just an small annexe off the main corridor, US foreign policy is the rest of the world is just a small island off Florida, and US legal / IP law says the rest of the world is a couple of quaint and obsolete bye-laws.
What's going to happen?
Any person or company operating inside the continental united states is going to find themselves working less and less under an ever increasing burden of patent and IP legislation.
Anyone outside the US is going to stick 2 fingers up at the entire country and continue to produce generic viagra, GUI's with double clicks, and all the other shit.
You want to come over here and try and sue us in our own courts and cite YOUR FOREIGN and DOMESTIC laws as your case for the prosecution, you go right ahead...
Given that the Times (London) is now reporting that a senior insider in the Bush administration is stating that if dubya is re-elected Iran is on the official shit list for early military intervention to destroy it's budding nuclear tech... for the first time EVER I wouldn't actually want to get a green card and live in the States.
Unless you lot stop the tail (Israel) wagging the dog (USA) you're going to see an entire nation do to itself what Enron did to itself, the rest of the world is moving on while the united states, at the behest of its lawyers and political lobbying by pro israelis, is busy stabbing itself in an orgy of self worship
http://slashdot.org/~GuyFawkes/journal
Show the listed inventors are a subset or superset of the actual inventors.
The inventor declaration can be amended (in most circumstances) to overcome this. It is not (generally) a fatal error.(37 CFR 1.67)
Show that the patent does not describe the best method ("the preferred embodiment") for solving the given problem (many Japanese companies have trouble with this one in the American patent system).
Virtually no U.S. domestic patent applications run into this pitfall. All that is required is a brief explanation of the 'best mode' for making and using the invention at the time the application was filed. Patent applications generally do indicate how the invention is best implemented and for what purpose.
Prior art
The term 'prior art' is bandied about (often mistakenly). The term refers to the art as defined by 35 USC 102. While section 102 defines 'novelty', it also defines what is available under the umbrella of 'prior art' for the 'obviousness' standard of 35 USC 103. The surest way to invalidate a patent is good 'prior art' under secion 102 (e.g., it was done more than one year prior to filing of the patent application).
Issues regarding obviousness (hard to argue that one), or being implementable by someone of ordinary skill in the art within one year
Patent validity has nothing to do with the subject matter 'being implementable' within one year. In fact, it's just the opposite. The patent is supposed to describe the invention in sufficient detail so that one of ordinary skill could practice it immediately. The one-year statutory bar is where one has practiced the invention (or an 'obvious' variant), sold it, offered to sell it, etc., more that one year prior to the application for patent. 'Obviousness' is a weak (though often used) way to attack the validity of a patent. What is commonly referred to as 'obvious' (i.e., anyone could have done that) is not the same as the legal standard of 'obvious.' The question of patentability/validity under the 'obviousness' standard is not whether someone could do what the invention describes, but rather whether someone (or combination of prior art) previously did make or suggest making the invention.
Tell me more about the listed inventors being a sub- or superset of the actual inventors. I want to revoke my own patents as I have been screwed over by a so called co-inventor (he had the money, I had the inventions! he "bought" himself the co-inventorship).
Cant say anything here without getting in trouble. Neither can I act directly at this moment. Willfull to help anyone who wants to get these patents revoked. I have info on prior art too..
Im not going to reveal anything here (sorry guys but I dont know who is reading this) If anyone interested leave me a message here how I can contact you (no messengers or ICQ please. Preferably an email adress I can send the info to.)
A copy of the Markman Order was made publically available on my website on the evening of July 12th.
a ry.html
http://www.fightthepatent.com/MarkmanOrder.pdf
My cliff notes version: http://www.fightthepatent.com/v2/MarkmanOrderSumm
-brandon
------ Fight The Patent! website
A copy of the Markman Order was made publically available on my website on the evening of July 12th.
a ry.html
http://www.fightthepatent.com/MarkmanOrder.pdf
My cliff notes version: http://www.fightthepatent.com/v2/MarkmanOrderSumm
-brandon
------ Fight The Patent! website
Let me begin by saying though that the FTC report is meaningless. It is constantly derided as "so what" because the FTC has no say in patent matters as well as the fact that it is easier to criticize than to fix. I can tell a fat person to eat less, but that doesn't really fix the problem, nor is it really an insightful comment (the FTC's comments that is).
Once someone has a monopoly on something, he will be much less inclined to keep on innovating, since the competition is very much restricted in improving what he did
I completely disagree with this statement. While it sounds reasonable, I have yet to be shown anyone that acted this way. Look at Edison (1,093 patents). Look at Hammond (800 patents). These people got patents and kept innovating, often in the same areas of technology. A 20 year patent is great, but why not extend your monopoly by improving your tech and filing a patent on the improvement. *BAM* 25 year monopoly (assuming 5 years between filings). The lazy inventor is a reasonable idea, but not a realistic one.
In practice, programmers can barely understand the legalese of software patents.
This is because a) the patent is written poorly or b) the programmer is lazy. Seriously. I have written several patent applications that contain no legalese except for the language in the claims (the enabling detailed description uses all English or trade language). I have also asked programmers what they thought their previous patent applications (filed by another firm) discussed and their repsonse was "I don't know, I couldn't be bothered to read it." The ONLY reason I write claims in "claim-ese" is because certain words mean certain things in the patent world (e.g., avoid "contains" because it is exclusive).
especially when patents are applied to information entities, such as maths, interface designs, business methods etc
Yuo can't get a patent on maths though. The maths have to do something, especially in the real world if your from Europe (and I guessing that's whaere you are since no one here says maths ;-) Business methods are also greatly frowned upon. Yes, Amazon got one. And the resulting ill will has made it much harder to get one now. UIs are not easy either unless, again, it interacts with the real world somehow (e.g., the double click). Usually UI is covered by copyright. While the most famous bad patents are, well, infamous, the majority of the patents aren't that bad, and really do stimulate innvoation. Typically, there is also so much push back by the PTO that you invariably do narrow the scope of your patent during prosecution because there is too much prior art.
In fact, there the cost of getting a patent is often much higher than the cost of the innovation itself.
I clicked on the link you provided because I wanted to see the facts before commenting, but it was the table of contents. Specifically, I believe this is possible in some cases. The majority however, this is not true. It costs up to $15k to file a patent applicaton. Add in, say, another $35k over the course of proecution. $50k over the 4 years it takes to get a patent in little compared to the salary of 1 of the often 4 engineers it takes to come up with somehting patentable.
I realise this discussion was about patents in general and not specifically software patents,
I will admit, whoheartedly in fact, software patents have really changed things up. I think 20 years for a software patent is way too long give the pace of software development. I also think that because softare is so enabling, a 20 year monopoly is holding the marketplace hostage for too long. You could write a routine/application/whatever in a couple weeks if the disclosure is sufficiently enabling.
I had a steady B+ in my AI class until I failed the Turing test...
Are we talking about the same FTC report? The FTC doesn't simply say that there are too many patents or that there is a quality problem (they mention that as well, but that's not all). They also say that economic effects and effects on competition should be taken into account when extending the scope of patentable subject matter, or in general whenever patent-related decisions are taken. They also interviewed a lot of people from the business and the field to find out what they thought (after all, the patent system is there for them, right?).
They may have no a say in patent matters, but that doesn't mean their report is non-sensical. On the contrary, I think points 6 and 10 of IPO's response to the FTC report to be completely crazy and unworldly, even though they have a lot of (indirect and direct) say in patent matters.
It is used a lot by parasite companies like EOLAS (browser plug-ins), Forgent (RLE compression in JPEG), Acacia ("video streaming"), ... . They have made a whole new business model out of this idea. It would surprise me if other companies did not do this on a smaller scale.
There are many poorly written patents (yes, I have read already a lot). And the claims are also quite important, since not all programmers work in the context of a large company where they can afford a lawyer to sit next to each programmer to check when a design decision infringes on a particular claim. In fact, even large companies don't do this. Companies like IBM simply count on their huge portfolio to get a cross-licensing deal if necessary.
To summarise it as one interviewee in the FTC report said: "There is too much information and it's no longer meaningful". As far as programming is concerned, the patent database is one huge collection of ideas. A programmer in general does not have a problem coming up with ideas. Time is spent designing them into an application, implementing them and testing them.
And in case a patent is about more than some general idea, as in case of e.g. one of the mp3 patents, you end up with claims so broad they include everything but the kitchen sink. I'm still w
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Also, since I do not think patents are required to spur innovation in the software field and even hamper it, I think having no software patents is even a much better option than short-term software patents. You have the short-term protection already pretty much automatically by the combination of first-to-market, copyright and trade secret anyway.
first-to-market is great, but you still have to fight it out. Copyright buys you virtually nothing (even the SSRN article you provided echoes this) and trade secret doesn't buy you much because you would have to show that your competitor stole your trade secret. If they came up with it clean-room, you've got nothing on them. Combining them doesn't help much.
Like I said, I need to read what you posted before trying to reply. It would do neither side any good if I really responded beforehand.
-truth
I had a steady B+ in my AI class until I failed the Turing test...
Therefore, the time necessary to reverse engineer it, re-implement it, integrate it in your application and test it will take quite a lot of time (possibly even as much as the original implementors). The reverse engineering component is (virtually) non-existent in case of e.g. business methods and interface elements, but that immediately demonstrates how the "disclosure value" of such patents is (virtually) non-existent either: using the technique is the same as publishing how it works, so there is no reason for society to grant a monopoly for it. Companies love it of course, since they more or less get something (a monopoly) for nothing (a publication that they were going to do anyway).
Nevertheless, even of those people who think patents are completely unsuitable for monopolising software-related innovations, there are some who think that the protection offered by copyright is not strong/deep enough for things like very complex algorithms. Some alternatives are discussed here.
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The department for new technologies for the war effort (forget the name) rejected all ideas by default.
The head of the department was quoted as saying something along the lines "If one in ten projects are usable, then by rejecting all of them I save resources that would otherwise be spent on the 9 useless ideas to spend on the war effort".
If only 1% of the patents are worth anything, then the default should be "reject patent unless good reason for granting".
SW is not anything you manufacture, developed SW is something you publish. The question EFF should be asking insted of prior art is whether it is possible to infringe by publishing. If it is, then the matter belongs under copyright, not patent because it is not an invention then, no matter if it is new or not. Something that you only publish should never ever be able to infringe a patent, thats plain wrong. Compare to a method patent, a method is also something that you can publish, the publisher does not infringe any patents (copyright maybee), the PTO publishes... With this line of thinking i even think that EFF can find support in the US constitution to ban all SWP, but hey i am no lawyer..
Secondly, the last phrase in that article ("The real question is how do we help the patent office so they don't issue the crap in the first place?") stuck with me.
It seems that there should be a way for patents to be reviewed in more depth, and by ppl with know-how in that particular field. Peer review is the first idea that comes to mind, but OTOH that would take too long. So why not use a simplified NSF grant-decision process? For instance, small interdisciplinary teams of at 3 could review the patent: a univ prof, an industry rep and an IP lawyer. (I know, I know, there may be jokes that start like that ;^)
"One of the symptoms of an approaching nervous breakdown is the belief that ones work is terribly important." -BRussell