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More Calls for Patent Reform
ibi writes "On the heels of the PriceWaterHouseCoopers report about the threat of SoftPats to innovation, comes a book by a Harvard B School and Brandeis economics professor about how broken the patent system is in general. In short their book argues that the entire system is a (stunned silence) scam. (They actually call it 'a creator of litigation and uncertainty that threatens the innovation process itself' instead but that's cause you don't get tenure for using words like 'scam'.) Interesting to see that its gotten so bad that a professor of Investment Banking at Harvard even thinks something oughta be done."
Wealth creation and true creation are two completely separate things. Creators, in the inventor sense, need to protect themselves from others who would take their ideas without recompensating the creators for the time and effort involved in the invention process.
Investment bankers know how to carve up a company into itty-bitty pieces, charge a fee for that, then move on to dooming the next bright-eyed startup company with two contracts to rub together.
So you are getting the opinion of a destroyer of wealth on how and why to dismantle the mechanism of protecting creators of wealth.
I understand we all hate patents and don't believe in IP, but this is just about the worst you can do in getting a spokesman.
Dancin Santa
Well, that is only partially true. The technical people do have power to change things, it just takes time. That is to be expected though; when was the last time you saw public policy changed very quickly (outside of the patriot act)?
In fact, the technical people are probably the only ones who will change things. I strongly doubt that the average Joe on the street will ever care about patent law. I mean, that is unreasonable to expect from today's public.
There is nothing wrong with software patents, except that when the average product lifecycle is three years the patents are too long for software. I think everyone could be kept happy by limiting patents on software to some shorter term (say 5 years) ... The inventor gets a licensed monopoly for the life of the product - then it becomes public property. This seems to be the easiest way to address the patent imbalance without the costly process of changing the mechanism...
It is amazing that in the year 2004 there is no real IT department that is competent enough to head up the reforms of the patent office. Everyone who understands enough about software that is involved is looking out for the interests of someone or something other than consumers and people. A search for the keyword "patents" on /. returns so many hits, new stories abound, it is perfect illustration of how hot a topic it is, but who can we trust to have our best interests in mind when writing legislation? I, for one, do not trust the current administration to get it right, but who then?
Before your panties get in a twist, I'm just playing devil's advocate. I think ownership needs to be redefined in both the copyright and patent space. I just see patent reform as an uphill battle because of the simple to understand arguments against it.
These are very different... A medicine is like finding a needle in a haystack. The drugs companies have to sift through millions (billions?) of candidate compounds, before finding any that are worthy of trial... Then they have to fund the trial. In other words the work to produce a patentable drug is very high.
The problem is examplified when a group of software developers sit around a table and write a couple of patent applications in an afternoon - How can a 25 year monopoly be justified by 1 afternoons work?
In the end patents must reflect the ammount of effort put into developing the idea - either the patent office must get up to date on technologies, and realistically determine the ammount of research/novelty in the idea, or the length of patent must be reduced from 25 years.
If you consider a drug company may spend 5 years or more developing a drug - then your average "in an afternoon" software patent deserves about 1 weeks protection!
overall progress would be improved if the terms were reduced to something more like 2 years.
2 year patents for pharmaceuticals would make it useless to develop new medicines, due to the extensive testing required by the FDA prior to marketing. This is why most drugs are only on the market a few years before the patent expires, allowing generics to be developed.
The proper amount of time is very dependent upon the nature of the patent an the industry it is involved with.
What?
It's because there's like 30,000,000 "inventors" in the space of writing code, at least.
How many comparable inventors are there in biology, pharmaceuticals, custom machining, or whatever?
Put another way: Should you be able to patent particular methods of housing arrangment, bus path to work, and place of work? "Way to make money, by living in Lake City and biking or bussing Lake City way to work on 120th street?" Of course not, that's absurd. Because people do this "business method inventing" all the time, every day. The space of inventors there is everybody.
When the user interface to biology and pharmaceuticals are as accessible to everyone as computer software, then we will talk of stripping, or at least greatly reducing, those fields of patents as well.
As I understand the problem it is this: with physical inventions, like say a bean sorter, the inventor must provide technical drawings and schematics etc showing how the machine works and is constructed. Now no one else may build precisely that machine. However, if I come up with an innovative new bean grabber/combine/conveyor mchanism that does the sorting in a different mechanical way then I may also patent that, and if my device works better than the other bean sorters out there I do well.
With software patents what is patented is the general concept or function, but it is not tied to the actual execution. So if someone gets a software patent for "a routine to sort Bean Class Objects in LogN time using only one mouseclick" they don't need to inlcude an implementation in a specific language and have the idea intimately linked with that implementation. (Just as the physical bean sorting machine patent is forever linked to its design and schematics.) Now even if I create a new way of sorting Bean Class Objects in LogN time using one mouseclick, one that is written in a different language and uses some clever recursive trick to make my code smaller than the patented version, I still cannot get a patent on my software because the idea of this Bean Class sorter has already been patented. Thus my innovation is stifled and now everywhere I use a bean class sort that executes in logN time with one mouseclick, I have to pay a licensing fee to the original patent holder even though I didn't ever use any of their code.
This is how I understand the general difference between softpats and more classical machine patents. Granted, this is very simplified and there are more issues at stake. Perhaps someone more in the know could elaborate or correct what I've said here if anything doesn't jive.
-- I'm not a pessimist, I'm a realist. It's not my fault that life sucks so much. --
One way to make a significant improvement to the system would be to reverse the way vagueness is handled. At the moment it seems that ideas described in vague and general language are considered to be covered by the patent, and the idea is considered new enough if it is not a blatant direct copy of something that has already been described (which is usually interpreted to mean patented).
If the assumptions were reversed, the vague and general patents that are close to things that have already been done should be eliminated. It seems to me that those are the ones doing the most harm, so this would be a big step in the right direction. If there was a penalty (no protection) for any part of the idea hidden in obscure language, it would make the whole process much easier to use, and harder to abuse. Clear and simple descriptions would be much easier to relate to existing ideas, so you would need real novelty in the idea rather than a novel way to create a convoluted description of the idea.
It shall be very interesting to see how many
custom-built single-patent companies start popping
up in order to cash in on a patent while shielding
the mother organisation from retaliation suits.
If this really starts taking off, then even large
patent-holders might start rethinking their
position. A patent portfolio will no longer be
the suit of armour it used to be.
sigs are hazardous to your health
My significant other works at the USPTO, and here is my view of part of what is wrong....most of the burden for creating a proper patent should be on the applicant, not the examiner!
Lawyers prosecuting patent applications basically lie and cheat to try and get the broadest patent possible...causing undue burden on the system.
There is already rules about lawyers basically cheating, but no one enforces them...and they try to take advantage of examiners by writing obviousely too broad claims to get more than they know they should. If the examiner lets it through somehow, then you get litigation.
But there should be some penalties for the lawyers. In fact, even when a lawyer is acting in a way that will hurt their clients chances of getting a patent, the client may never find out because it is aganst the law for the examiner to talk to the inventor.
So the lawyers have it all. They keep beating the PTO in the head to let their crappily written, overly broad patents through, and then they get to duke it out in court or let their clients intimidate others. How is that ethical?
So, make a system of penalties or ratings of lawyers, so that there is some pressure on them to present good patents that are well writen, that take into account what is actually already patented, and then examiners would have to deal with less BS and be able to spend more time actually looking at the merits.
So, put the work on those who want the patents, they are the ones who if interested will pay for a better system.
You know, if you really want to expose the root of the problem, it's not a problem with the law, lawyers judges or juries. That's just blaming the real problem on the people paid to enforce the status quo. The real problem is unscrupulous people that value money over ethics. Companies that want to get money for something that they did not create. And if one company does it, another says "look, they did it, so that means I should do it." People in this society don't think for themselves, and unfortunately we can't rely on common sense to help out on the interpretation of laws.
I'm not a bible-beater or anything, and I'm not preaching the ten commandments here, but we really only need a handful of laws, along with common sense, to live in a great society.
More or less in this order.
1. Don't kill people.
2. Don't steal (This includes all forms of stealing, cheating, scamming, manipulating or otherwise defrauding.)
3. Don't lie.
4. Make every effort to contribute to society in a positive way. (Don't be stupid, you know the difference between right and wrong.)
5. Above all, treat other people how you would want to be treated.
The reason that this wouldn't really work is that some people are born without ethics. They need to be told exactly what they can and can't do. By and large, those people grow up to be lawyers. (OK, seriously, I KNOW that not all lawyers are bad. I'm using an overly broad and unfair generalization to make a point.) We shouldn't live in a society where the average person isn't qualified to defend himself against accusations because the laws are so complicated that it requires post-graduate schooling in order to interpret. That's why Lawyers can use phrases like "Well, it's not exactly illegal." and "Well, technically, you can't prove that [insert CEO of Fortune 500 company here] knew about the accounting scandal, so technically he didn't do anything wrong."
So, I have to concede. It's not lawyers that are broken. It's society. Lawyers are just an outward symptom of the cancer that's eating away at the world that we know today. Politicians are another example. So what's the solution? I don't know. I'm only paid to bitch and moan. I'm not smart enough to come up with any real solutions.
-Arthur
Cave ne ante ullas catapultas ambules
Judges aren't lawyers. The two are completely separate professions that happen to involve very similar training and who work together frequently.
That's like saying that IT project managers are programmers. The two clearly have a lot of domain specific knowledge in common, and programmers often become project managers later on in their careers, but they are entirely separate and distinct jobs.
The laws in question are almost certainly "common law"; that is they were never actually written in governmental acts, but arose through the decisions of judges (and juries) in past similar cases.
And, yes, juries are a large part of the problem. They're too easy to sway with emotional arguments, and often award compensation that is substantially too high. They're also often left to decide on matters that they aren't qualified for, particularly when dealing with laws that involve phrases like "a reasonable person".
We should bring back duelling. If you have a real problem with another person, and you're each willing to stand those 20 paces away to make your points, then it's apt to be that a real conflict is taking place, not a faux conflict as happens each minute in America's court system. In short, duelling would get money out of the justice equation and put philosophy back in.
[You have a stable society when some nut guns down a schoolyard and the law doesn't change.]
Last night I attended a talk by Richard Stallman entitled The Danger of Software Patents in Luxembourg. He made a convincing case as to how the patent system when applied to software ideas was poorly executed (a legal mess, scope defined too widely, etc.) He concluded that the patents system on software ideas stifled innovation and hurt Joe Developer while making "the Mega-corporations" (his word) richer. (I won't list his arguments because I'm sure you're all familar with them.)
I accept that the patents system as it stands is far from optimal, or even fair. But could someone please clarify this for me: how could it be an alternative to abolish patents on software ideas altogether when this would remove the financial incentive for someone to protect their software invention? We'd all like to live in a world where financial gain meant less than it does, but is it really a realistic option? What IS the alternative without making the patent system even more cryptic and complex? What am I missing here?
---- scrm
The US has to be careful with patent reform, perhaps because of the lesser used part of the 5th amendment. Ie.
... [No person shall] be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
For the same reason that copyright reform may be difficult to bring about, as postulated by Mr. Lessig, Mr. Knopf, and others, it would literally cost the government a fortune to deprive owners of patents their due value, for a public purpose, as the 5th amendment guarantees them just compensation.
The lackadaisical politics is in essence digging its own grave, ensuring the continuation of a terrible intellectual property system, as the government will be unable to afford to compensate the existing privileged in the name reform for the public good.
"Intellectual property" is neither about "rewarding the inventor/creator" nor about "enriching the public domain" anymore. It is about "Them that have, get" and has been for quite some time.
IMO the only thing that will have a positive effect on either the patent situation or the copyright debacle we currently have is
1) to go back to the original time limits such protection is afforded the owner, and
2) the actual inventor/composer cannot sell/lease more than a 49% interest in the patent/copyright in aggregate.
Sure, it would still pay IBM to finance the application for, and granting of a patent, but they should be legally enjoined from owning the fruits of a talented engineer/designers output by more than a 49% interest in said patent.
IBM would still be able to leverage a quite useable profit margin out of that 49%, or they can decide to pass on it, in which case the talented individual should be free to apply on his own. Either way, the engineer/designer/artist would truely enjoy the fruits of his/her labors for the now limited duration of that patent. And he/she would maintain legal control over the 2nd party usage of that patent.
And that folks, would
3) drive the rate of innovation plumb thru the skylights all over. Talented people would no longer have to hide their homework from corporate raiders for fear of losing all rights in an idea, or quit their job and be at the mercy of the VC folks for their next meal and mortgage payment if they think they have an idea. That right there, is a very powerfull incentive not to innovate the really breakthrough ideas into working prototypes on company time as long as company time is being interpreted by the courts to equal breathing time, not stopping when the individual goes home. This line needs to be much more firmly defined than it currently is.
I have long lobbied for a copyright that belongs to the author, one that cannot be sold, but can legally be leased to someone or a company with sufficient resources to publish the work, but only for the duration of that lease which cannot exceed the duration of the copyright itself obviously, and certainly no guarantees of exclusivity would be legally binding except for an initial "ramp it up and get it into the pipeline" timelags that are endemic to mass production. That way the author is free to peddle it more than once if the first lease buyer doesn't do what the author thinks is an adequate job of promoting and selling the work in a reasonable time frame, adjustable according to the timeliness of the material. It would be a free market, with the proceeds going back to the author in whatever bookkeeping method was negotiated when he leased the work to a publisher.
In both cases then, it would be the artisan, be it words/music or hardware, would be assured of being compensated, sometimes hugely, for his work.
And that, IMO, is what it will take to fix the currently badly broken situation.
Cheers, Gene
Interesting that it's PriceWaterhouse that put this out.
...which caused the developer of Groovy Java Analyst to abandon his open source project.
Would this be the same PriceWaterhouse with this patent: "Method for electronically recognizing and parsing information contained in a financial statement"
Though he doesn't say that he received any correspondence from them, just idea of getting tangled up with a corp. over a patent was enough to send him packing.
I'm sorry, but software patents as well as BP patents are blatantly wrong.
Just imagine someone had managed to patent "Method for looping over an range of integers to control algorithm execution".
Nowadays, they could probably patent "Method for serving fast food with customer still in their car"