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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."
People like this are exactly who need to get involved for things to take a positive turn. Technical folks can bitch and moan all we want, but until the non-techincal start to understand, no, care about, the implications, things just plain won't change.
This comes across as more of a litigation problem, not really a patent problem. If I invent something, I don't think it's out of like for me to expect to be compensated for it. The problem is, there are too many damn lawyers. We are a litigious society, and that's really the root of the problem here. Why else would there be a warning on the Windex bottle warning me not to spray it in my eyes?
-Arthur
Cave ne ante ullas catapultas ambules
I don't follow - wouldn't a professor of investment banking at harvard be among the first people to realize that something oughta be done?
Schools have to tear down playgrounds because of fears of lawsuits. My kids can't go on field trips without a 4 page medical release. My kids can't attend GYM CLASS without a waiver where we acknowledge that gym includes strenous physical activity.
OB GYNs can't sneeze without ending up in court. People injured in car accidents get millions in settlements.
Coffee cups have "Attention: Hot" printed down the sides of them. Radio ads include a "high speed small print" ramble at the end of them. There is an asterix and small print on everything around me. Half the price of football helmets is to pay for the companies lawsuits and insurance.
The patent system is just another example. The copyright system is just another example.
As a society we need a rework.
Does the Patent System Need an Overhaul?
By SABRA CHARTRAND
Published: September 27, 2004
SINCE 1793, the federal government has issued patents to inventors, giving them exclusive ownership of an idea as well as the right to prevent others from using it. Now some experts argue that achieving those rights stifles innovation. Two professors conclude in a new book that a couple of unrelated and seemingly innocuous administrative reforms of the patent system have caused a shift away from encouraging innovation in favor of exploiting patents largely for lawsuits. Josh Lerner and Adam B. Jaffe have written a book with a title: "Innovation and Its Discontents: How Our Broken Patent System is Endangering Innovation and Progress, and What To Do About It," to be published in November by Princeton University Press.
Mr. Lerner, a professor of investment banking at the Harvard Business School, and Mr. Jaffe, a professor of economics at Brandeis University, trace this breakdown to the early 1980's, when a single federal appeals court was established to hear patent lawsuits, replacing 12 regional courts of appeal. Then in the early 1990's, Congress changed the patent office's financing, so the agency could pay for itself with user fees. From his home outside Boston, Mr. Lerner last week described the patent system, 20 years after the reforms, as mired in "the land of unintended consequences."
"Again and again in the patent system, we see people set out to do reforms with one thing in mind, but that have quite an unintended effect," he said. "The easier it became to get patents, the more people wanted to apply for them, and that led to a situation where examiners grappled with more patents to review, which led to them being pressed to do quicker reviews and a degradation in quality of patents issued." The patent agency has often struggled to keep up with the times. In recent years, the agency has confronted entirely new areas like biotechnology, software-related inventions, financial and business methods, Internet-based inventions and other information-technology innovations. Some of the changes designed to deal with these occurred amid extensive public debate. Others got little attention because they seemed like innocuous administrative reforms - like the ones that made patents easier to get, Mr. Lerner said.
But many of those patents caused a secondary reaction, he added. "The ability to litigate and expect to get substantial award from litigation increased," Mr. Lerner said. "So as a result we've got somewhat of a vicious cycle. Once you get one firm in an industry beginning a strategy of aggressive patent enforcement, it creates an almost inevitable response - an almost arms-race dynamic - where everyone else in the industry says, 'We better be doing the same thing.' " He suggested that these changes for the worse occurred because "there's a relatively small group of people in the D.C. patent bar, and they have a very powerful influence on how patent policy gets decided. There is a powerful incentive for them to keep a patent system that is complicated, and one that involves protracted, costly litigation." Also, Mr. Lerner said, businesses often fail to understand the importance of subtle changes in patent law.
"It is perhaps because of the complexity of patent issues, and because there is no long tradition of work by economists in this area, because a lot of corporations see it as second order relative to tax policy changes, for example, which directly affect their bottom line," he explained. "Patent policy has an indirect affect." The book lays out a strategy. "Our idea is that three things will potentially make a big difference," Mr. Lerner said. "First of all, this idea which may well have made sense in 19th century of a patent examiner being able to sit and in few hours figure out what a relevant technology is, and then go out and make a decision as to whether a patent should be granted or not, that really doesn't make sense in an era like today. "Second, to see the patent revie
I don't think it does. Linux is not particularly innovative. Almost all of its features were previously included in another operating system. I can't think of a single thing it does that ought to be eligible for a patent, even in a world where software can be patented.
the summary. I read the article(admittedly I haven't read the book), but the following statement seems to miss the point entirely: In short their book argues that the entire system is a (stunned silence) scam.. Um, no it doesn't. What the NYT article states is that the authors see a lot of the changes made to patent law and how the patent office is funded since the 80's has only rewarded trial lawyers. /., I'm expecting too much I guess.
They don't say that patents should be done away with entirely. They recommend some serious reforms to the system such as a much stricter patent review process where 3rd parties are allowed to have input. They also say that most businesses are more worried about tax reform than they are about patent damage. These are good ideas, and a start to reform.
Gah, I really, REALLY wish people would stop putting bias into their summaries, but this is
Monstar L
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...
There exists a point where economic interests, given a political system which can be bribed, become so powerful that they effectively have total control of the system. As far as the downward spiral of individual liberty at the expense of corporate profit, this is the Point of No Return. Yes, on the books they don't have the power, but practical realities and what the books say are often very different things.
Realistically, the power of the people to speak louder than money is only felt if a) said people are interested in exercising that power at the expense of personal convenience and b) they are willing to think for themselves. This seldom happens, and only when things get Really Bad. I'm not talking about IP laws, I'm talking about not being able to get the basics of life. Abstract economics doesn't get people excited, because its not important enough. Tomorrow's meal or the kid's latest cold is what's important for most people.
As long as powerful economic interests are able to keep most of the people relatively comfortable, they will never have to deal with popular uprising about MP3 downloading or stupid patents. People ignore these things unless it impacts them personally, and it seldom does enough to hurt.
Beyond the Point of No Return, corporate power is able to use the statistics of democracy to run the country. Barring the crumbling of their power due to total economic collapse, they control the media and can use it to influence and placate people as they see fit.
So brace yourself geeks, because we don't have a Voice. We are without economic or political power, and we are so small a minority in the democratic whole we can be ignored no matter how loud we yell. Because most people don't care about what we care about. In a two party system, massive numbers and middle of the road are the order. We are neither.
Which doesn't mean we should just go gentle into that good night, but bear in mind the patent system being profitable to the people abusing it is more politically important than the little (relatively quiet) guy being squashed. If we fight, we need to fight smart and not charge at the problem head on. Because we might as well be a flea going head to head with a rhino.
"I object to doing things that computers can do." -- Olin Shivers, lispers.org
1) These high profile people will convince congress that the system needs change.
2) Business interests will direct the changes.
3) The system will be worse than today.
I didn't see any recommendation for shorter terms for exclusive monopoly rights that I think would help cure this problem on many fronts.
The 17 year term might have been justifiable in the 18th century when trading ships took many weeks to cross the Atlantic, but now, overall progress would be improved if the terms were reduced to something more like 2 years.
And, while we're at IP reform, copyrights should be cut down to a shorter period as well. This 75 year mouse extension is ridiculous, especially when Disney mines fairy tales in the public domain (Snow White, Cinderella, etc.) for their cartoon movie ideas.
But, once the artificial market is created, the vested interests (owners of IP, litigators of IP) don't want to see it go away.
So just reduce terms of exclusivity gradually, a year at a time, until things become sane again.
"Provided by the management for your protection."
"In fact, medical research thrives on patent protection."
And the third world DIES because of medicine patents.
Nice call there.
This is not a one way trip. We are not "doomed" or "fucked." We overcame monarchy. We overcame slavery. We have dismantled patriarchal sexual customs that have 40,000 years of tenure. The progress of our civilization is highly dynamic and we are sitting on a 100 year winning streak.
This did not happen just by sleepy proletarian mobs being occasionally jolted awake by famines and wars. Our progress is the result of small groups of dedicated, intelligent individuals who overcame their own cynicism and defeatism and got their hands dirty. These are not people richer or more powerful or luckier than you that you imagine really take care of everything. This is you. Right here, right now, posting on this stupid website.
Frankly the biggest enemy you have to face after ignorance is helplessness. You are not helpless. Reading recent history is often the best cure for that feeling, and I urge you to read it.
Unhealthy intellectual property policy affects our entire society, through its economy and its quality of intellectual and artistic life. Our patent regime is especially pernicious; software patents in particular are obviously, prima facie unjustifiable.
Oh, we have hot button poltics, and bread and circuses like always. But never forget that money is what really moves politics in this country. And software patents are very, very bad for business, at all levels.
Everyone wants to make money, to push growth. The problem is the prisoner's dillemma; software patents are bad if everyone has them, but they're theoretically good for me (if I'm one giant company). All that has to happen is lining the natural opponents up and letting them work. It will take time; the community needs to develop the conventional wisdom that with software patents everybody loses.
Just be smart, and be willing to work. Once tension builds, it often takes a dramatic event to tip the balance. Say, a bunch of tiny upstarts suing Microsoft for billions over patents and any of them winning?
Want to Know How to Cheat the GPL? Read On!
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
Not only does USPTO not receive any tax money, since 1992 much of the money collected in fees by USPTO has not been available to it. From fiscal 1992 through fiscal 2001, more than $675 million has been diverted. Because of the economic damage cause by invalid patents, this is no way to save money. USPTO's ability to conduct meaningful examinations is already compromised. Last year, USPTO Director Q. Todd Dickinson warned of an imminent "reduction in patent quality" resulting from yet another inadequate budget.
Inadequate USPTO budgets benefit only one group of people -- those who get invalid patents. Everyone else suffers. Fund USPTO so that it can afford to attract and retain highly skilled examiners, as well as maintain a world-class library of international patents, journals, catalogs, and other information. A patent office without full funding is the economic equivalent of a fully loaded B-52 bomber with no maps, no compass, and an untrained navigator.
2. Stop and reverse patentability creep
Would the economy be better off if Bruce Springsteen were allowed to patent rhyming "back" and "Cadillac" -- and sue any other songwriter who did so, even if the new song was nothing like "Pink Cadillac?" Would the economy be better off if the Green Bay Packers were allowed to patent the best defense against a particular play, and sue any team that used that defense against them?
Would the economy be better off if a high-priced defense lawyer were able to patent the use of a legal argument, and sue any other defense lawyer who used it on behalf of his client?
Clearly, the answer to all three questions is no. We're all better off when we can hear new songs, watch good football games, and get a fair trial without getting several patent licenses a day. Unfortunately, several court decisions in the 1980s and 1990s have resulted in the patentabilty of mathematical algorithms and of business methods, which is for programmers just as ludicrous as the above three examples.
Software and business methods patents are examples of "patentabilty creep" in action. Federal judges, legislating from the bench, are expanding the scope of patentable content to not only overwhelm USPTO, but also to do grievous economic harm.
3. Fix USPTO's incentive system to reward quality, not quantity
The Department of Commerce should populate USPTO's advisory committee with members from outside the patent bar, with a view to helping USPTO work toward the economic health of the nation as a whole and not for any special interest group. Employee incentive programs within USPTO should be tied to patent quality, not quantity.
There are some cases in which being able to patent something is the only way a company will invest the time or resources to develop. Take as an example Esperion Pharmaceuticals, who developed a drug that will save me from all the cheeseburgers I've been eating.
Scientists have known for years that merely injecting someone with "good" cholesterol could help ease congestive heart failure, but because it's something we all produce anyway, it couldn't be patented and nobody was willing to spend the money to manufacture a low-margin commodity.
Somebody noticed, though, that residents of a small town in Italy died with baby-smooth arteries and almost never had heart attacks. A researcher found that they produced a mutant form of cholesterol that functioned like "drano for the arteries." Because it was a mutated form, it was patentable, and the researcher sold out to Esperion, which Pfizer bought within months for more than a billion dollars.
I think people on here, understandably, are coming at this from a software background. There is really no other industry, though, where innovation comes as cheaply and easily. MS et al. have definitely abused the system, but it might be a better idea to militate for software-specific patent reform than for patent reform more generally, as 20 years is not a lot of time in some industries (the airline industry comes to mind, where it takes more than a decade to produce a new passenger jet) to recover the costs of innovation. Another benefit is that the longer the patent lifespan, the longer the period a company has to amortize its R&D costs, and the less they have to charge up-front.
Always a godfather; never a god. -Gore Vidal
Here's a relevent bit in the US constitution:
Unlike natural rights, people don't have exclusive rights to their "writings and discoveries" unless Congress grants it. The reason Congress grants that right is for the public good. If Congress chooses not to grant this right, it isn't taking anything away. It's just not exercising it's power to grant the right. And there's no "property" taken from the inventor in violation of the 5th ammendment.
-Dave