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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 According to the article, of the approx 7,000,000 existing patents, only 614 have been revoked, and only 3927 have had their claims narrowed."
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 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
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
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?
Then, management needs to be terminated, the staff retrained, budget allocated, and new policies and procedures redrawn. And an audit too. And all this not necessarily in this order.
As well, the fees need to be spectacular enough to fund the number of examiners needed. If few patents: few examiners. Conversely, if a lot of patents, a lot of examiners.
The final thing is that the Congress (who we *pay* to do this job) should get off their ass and get going to reform the patent system.
Well, since none of this is going to happen, I suppose I'll have to replace my congressperson.
See ya'll at the polls. And quit bitching till then.
"Piter, too, is dead."
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.
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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.
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 percentage of patents that generate net positive revenue, either through licensing or direct sales of products is miniscule." But how many people never bother create their idea simply because they're afraid of the inevitable lawsuit? Revenue is generated because competition fails to materialize.
What if Digg added local news and a Slashdot inspired comment karma system? ---
http://houndwire.com
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
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
If you look at the formula I posted above, you could see that if the idea was valuable enough, the inventor would be willing to litigate.
I think your question betrays a misunderstanding of the patent system. If you invent something and get a patent, you get the right to stop other people from doing your invention (and the concurrent right to contract not to sue them for doing your invention in exchange for money, i.e. a license). If you invent something, practice your invention publicly, and don't patent it, someone can come along and patent it later, and their patent would be valid if issued, until someone challenges it. Our non-patenting prior inventor (or anyone who can prove the patent should not have issued) can challenge, and if he wins, the patent is invalid, but the prior inventor can't get a patent because he failed to patent his invention when he invented it.
Again, if the idea is valuable enough (taking into account possible litigation expenses), a rational inventor will patent it, enforce his rights, and when challenged, defend the patent.
cleetus
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.
Indeed. It doesn't even need to be a strong check --- just an official notification by the patent holder to the patent office that progress of some kind is being made each year would be enough. Patents would then play the role for which they were created, namely to provide the inventor with a honeymoon period during which he can enjoy a slightly sloped playing field for bringing the invention to market. Ie. truly encouraging innovation.
Instead, patents today just encourage speculation, and submarine patents in particular massively stifle innovation and even non-innovating commerce. It's just diabolical.
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 ?
Problem is, as with all monopolistic buisinesses, that you have got no choice ...
:-)
These kind of "companies" (either not being out there to grab a lot of money, or otherwise) cannot be told/shown that it can be done otherwise/better.
As a result they can easily lay-back (at least, that's what it looks like) and ignore any-and-all reclamations (doing pretty-much what they like), 'cause, who's there to turn to ? No-one !
So, It's deal with them or die.
And that's just what we're doing now : dying because we're slowly getting strangeled : in all kinds of stuff we're allowed to look at, but are not allowed (anymore) to build upon.
And neither will our grand-children for that matter ! (the looooong and getting ever longer reach (time-wise) of patents)
Strange, if you think that patents have been coined just to make this possible : Great idea's that build upon other great idea's : A way to elevate the whole community.
Nowerday's all "great idea's" are owned by companies. and are merely used to make sure someone else does not reach even the elbow of the former.
If I would be asked to compare it, I would compare it with the Russian idea : All people are equal, just some people (in our case : companies) are more equal than others : You might be asked (read : forced) to share your great idea's with the "community", but nothing is going to force the "community" (read : the ones really in power) to share whatever they have got a hold of
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...
" Imagine if someone had patented conjunctions..."
I'll call bullshit on that fallacy too. Yeah, yeah, I keep hearing such heart-warming appeals to strong feelings as "but what if someone pattented sex?" Or "but what if someone patented making food, and you had to go to bed hungry?"
(Believe it or not, I didn't pull those out of the hat. They come almost verbatim from the homepage of someone whose programming work I still respect A LOT. His views on patents, well, let's just say I respect a whole lot less.)
The problem with that fallacy is two-fold:
1. Prior art. Noone could actually patent conjunctions, sex or food, because they bloody exist already. Or would get that patent overturned in a jiffy.
2. Patents expire. If someone actually invested enough time and research to invent a brand new grammatical structure, or a brand new way to have sex, or a brand new way of cooking food... and it's so useful and revolutionary that everyone wants to use it right now... what's the problem with letting patenting it?
It would mean that patents actually worked: they gave someone incentive to research something new. And in 20 years, which is a ridiculously short time on a history scale, we get it in the public domain.
Whereas without that, we probably wouldn't have got that thing researched at all.
I.e., between:
A. we get some new useful invention, but get to wait 20 years before it's public domain, and
B. we _might_ get it in 100 years or not at all, ever, because it wasn't economical for anyone to pay for that research...
which would you choose?
I'll choose A any time.
If your ideal world is more like B, may I suggest you go join the Amish or some other such fine group? Just pretend you're in an alternate universe where patents never existed, and not much new ever got invented.
A polar bear is a cartesian bear after a coordinate transform.