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The Economist on Patent Reform
ar1550 writes "The Economist recently posted an opinion piece on the state of patent systems, describing not just the mess that is the USPTO but flaws present in Europe and Asia. From the article, "In 1998 America introduced so-called 'business-method' patents, granting for the first time patent monopolies simply for new ways of doing business, many of which were not so new. This was a mistake." The article also describes the difficulty of obtaining legitimate patents. "
The article only presents one side of the picture, albeit, the slashbot side.
But, what about the other side? What was the motivation for allowing business method patents? There must have been some reasoning behind it.
Anyone?
I don't need no instructions to know how to rock!!!!
I see this patent buisness model as no different than the other booms (biotech, dot com) that all busted. Plain and simple, the patent business model means making money without any productivity. Instead of Network Solutions, we will have Patent Solutions so you can patent the 100 different ways to breath. There is no way this business model can succeed. Reform is coming sooner or later.
The article is a nice opinion piece. But before all you folks start ranting, please learn what a patent is/isn't and how they work. I predict a huge ammount of nonsense is about to be spewed.
The world is made by those who show up for the job.
This will balance out the patent system and make the system fair for all involved. Clearly, such a patent system will benefit the consumer.
A bit of research and theory suggests that, while these patents are a big pain in the US, there might be a case for implementing them in developing countries, in order to reward entrepreneurs who find successful business models and practices. Currently, there are few incentives for discovery of new industries in developing countries, since as soon as they are discovered, everyone rushes in and the original entrepreneur is put out of business.
And rule one of capitalism: without incentives, there's no innovation.
See for example Ricardo Hausmann and Dani Rodrik, "Economic Development as Self-{Discovery"
If we got rid of currency and patents and lawyers, think how happy the world would be.
We could do things for the sheer GOOD of doing them, people would be creative for creativity's sake. Just think Star Trek and don't tell me I'm wrong.
Thanks, commrade!
Give these guys a break ;)
They're just trying to help out the ailing hordes of patent lawyers. I mean if one could no longer patent the very process of 'post-factum patent squatting litigation', what would happen to the poor folks?!
Personally, I have filed a patent for the "process of gaining permission for sexual activity with a previously unknown person through the use of mood-altering and/or intoxicating substances".
Upon the patent being granted I expect to file no less than 10'000 lawsuits/day for patent infringement, mainly around college campuses.
IMHO, this editorial piece is a strategic smoke screen to put the emphasis on "patent reform" in front of the growing movements that challenge the scope of patentable subject matter. In the recent Geneva Conference on the Future of WIPO, the USPTO, WIPO and US Trade representative all supported "tuning generic patentability criteria", while critics supported excluding software, information processing, gene sequences and vegetal varieties from patentability. Guess which has more chance to bring the system back to reason ? Guess which is supported by the big patent portfolio holders ?
I will bring your issue up with the United Federation of Planets immediately!
patents, when applied for and granted PROPERLY are a good thing. However when they`re just used to cover your bases, so you can wait for some unlucky person to come along and try to do what youve patented, you can slam him with a lawsuit.
i think it was suggested a fair few stories like this back by someone for a use it or lose it style system, although it would create more lawsuits short term. it might just reduce the lawsuits which wait for a company or person to become nice and fat, for skimming.
The best solution would be to have those staff at the US patent office especially, but also other patent offices around the world to have the time, staff, training and ability to scrupulously check every single application.
perhaps barring those who apply for dodgy patents for a year or two? might be a little extreme to do that but its an idea at least.
I can tell you right now, they most likely aren't. Even if they are, they don't care. If they do care, they're probably not the right people.
"The object of war is not to die for your country, but to make the other bastard die for his." - Patton
As TFA seems to state, the principal problem in the patenting system is that it is too easy to get a patent granted on what, after a lengthy legal trial will probably turn out not to have been patentable. The difficulty is that patenting stuff is already a bit expensive, putting off people who aren't big corporations. So how can a better vetting system be introduced to force patent offices to look harder at each application for obviousness/prior-artiness?
The article suggests that competitors could perform this task if the application process were made more open. This makes the patent process somewhat similar to obtaining planning permission (putting up notices saying what you plan, and giving people a chance to object in some period of time).
One thing seems certain, that only if more patents are rejected by the patent office, will people file fewer frivolous patents. But as the system stands, the patent office has little incentive - they just want to collect their fee without too much hassle. Only by changing the system so that the patent office suffers each time a patent it granted is later found in court to be dubious, will they be motivated to improve the quality of the vetting procedure.
I'm not the first to propose this idea, but...
Today in the US, patents are submitted to the USPTO, where they are researched and approved or rejected. If approved, they are presumed valid, unless/until someone else challenges it and requests a review.
The USPTO is overwhelmed and in no position to accurately judge the validity of every one of these patents.
So why try? why bother reviewing them upfront? The USPTO could accept all patent applications, catalog them, make them public, but do not endorse them as valid until proven otherwise.
When patent conflicts arise, as they do today, companies can ask the USPTO to rule on the existing patents. At that time, all parties have a chance to supply relevant evidence to the USPTO about the patent's validity or invalidity.
The plus side is that the USPTO stops pretending it can deal with all this work effectively. It only spends effort on patents that companies think are worth fighting over (and before litigation).
The downside is that companies must publicly submit information about their patentable ideas without a guarantee that they will receive a patent. But, that is a healthy incentive to avoid spurious patents, which is missing today.
What do you guys think?
Base your corporation in Delaware, use the patents illegally, and pay yourself huge sums of money. If people get mad they can sue the corporation, but you don't care because you aren't the corporation.
Vote Quimby!
I'm going to patent the business model of treating employees like shit. Then I'll sue every company for patent infringement.
-- Thou hast strayed far from the path of the Avatar.
Keep business and software patents, but put the burden on the patent holder to prove it's valid (i.e., useful, novel and not obvious) in any subsequent trial or hearing.
And if the patent holder loses, it has to pay all of the challenger's legal costs.
If someone says he and his monkey have nothing to hide, they almost certainly do.
Typcially, the name "The Economist" is regarded as qualification enough. It made quite a row when they endorsed John Kerry for President, considering their staunchly fiscally conservative point of view.
Sometimes I doubt your committment to SparkleMotion!
One could also argue that there is no need for this type of patent, there have always been innovative accounting methods, financial instruments or services, even without the protection a patent affords. However, teh counter agruments were that due to rising costs, it becomes increasingly harder to create this innovative ideas and processes. Further, one could say that those that create these processes work just as hard as those who create physical technology. Why discriminate solely on the basis of subject matter.
Again, another counter argument can be made. When determining 'the cost' to business, what does cost actually mean. Is it more costly to a single business, when there idea is not patentable? Is it more costly to business as a whole, where they are excluded from using a patented method?
Really, IMHO, there are no definite answers. But I just wanted to inject some of the thoughts which go into this type of patent.
For more info, see: Patent Law and Policy: Cases & Materials, Second Edition by Robert Patrick Merges
I have an idea for a robbery technique. I was thinking to patent it, as it depends on a recent change and so there cannot be any prior art. I don't see why the criminals should be the only ones making money out of crime! Let them steal goods and money, for sure, but they'll have to pay me royalties if they want to do it the way I thought up.
However, then I thought it might be better to phrase the claim as a technique for being robbed instead. This ought to be more lucrative. The perpetrator may not get caught after all, and the victim probably is insured anyway.
Je fume. Tu fumes. Nous fûmes!
I've got a great new idea, even better than Amazon's revolutionary one-click shopping!
I'm going to accept money in exchange for goods or services. Anyone else who decides to copy this business model must pay me, oh, how about $699...
Not too surprising, really.
Now I'm no economist, but when it comes to the balance sheet, "Tax and Spend" makes more sense to me than "Just Spend".
"Ask not what your country can do for you." --John F. Kennedy
I wonder would the following simple addition to patent laws fix the bulk problem:
Basically, keep things as is, but limit the patent term to,say, 5 years. After that patent owner can extend it to the full 17 year term but make the extension EXPENSIVE (say, 40K per patent).. Basically, the idea is that 5-7 years of goverment protection should be enough to prove/disprove commercial viability of almost anything...And if idea is commercially viable, then 40K is not that much money, and if a patent is not viable, even IBM is unlikely to pay 40K for a useless piece of paper...
Of course, an (intended) side effect is that most companies will stop filing valueless patents.
(as 5 years is too short a term to bother and full term is too expensive)...The problem of submarine patents would simply go away...
The article points out that we need a way of evaluating whether or not a patent system is meeting its goals of fostering innovation. The article suggests:
That's a good idea, but I think there's a better way to determine if the patent system is successful at promoting innovation: analyze how the patent database is used. The stated goal of the system is to provide inventors with a short-term monopoly in exchange for public disclosure of their inventions, in order to spur more invention. That makes sense, right? If you get good ideas out in the public where people can see and build on them, you'll generate even more ideas, some of which will also be good. Ideas spark ideas.
This implies that if the patent system is working, you should see inventors perusing/searching the patent database on a regular basis, in search of good ideas to spark their thinking, or in search of solutions to specific problems they're trying to solve in their own inventions. I imagine a scene something like this:
Engineer: Hey, boss, you know that tricky database search problem we've been trying to solve? I just spent a few hours searching the USPTO site and I came across patent #123456789. It's a *perfect* solution! It'll not only address the problem we had, but it will make our product even more flexible and easier to use.
Manager: Great! Get me the contact information for the patent holder and I'll contact them to check into licensing terms. If they're reasonable, this could save us a bundle in development costs. We've put several hundred man-hours into this problem already. Maybe the patent owner will have an implementation they'd like to license us, too.
Engineer: Sounds good. I'll tell Jim to shift his focus to tracking down that nasty memory leak, on the assumption that the search problem is solved. Meanwhile, while I was looking through the patent database I also came across another patent which we can't use, but which gave me another interesting idea...
Does anyone use the patent database like this? No. Especially not with software patents. In fact, in every corporation I know of the attorneys explicitly tell developers *not* to search the patent database, as it's generally better to remain ignorant, both to avoid allegations of "willfull" infringement, and also because it's just a waste of time. Most patents are contestable anyway, and even for the ones that might hold up in court it's generally more cost-effective to just cross-license using your own patent arsenal.
I think the measure of the patent system should be whether or not its required disclosures are observably fostering innovation. If not, it's broken.
Note to ACs: I usually delete AC replies without reading them. If you want to talk to me, log in.
Donate free food here
I believe you might be confused. My father subscribes to The Economist. I read /. While you don't qualify your perception of /.'s political "demographics," I would suggest The Economist is somewhat more pragmatic and a little further to the right than /.
I do enjoy the idea random /. posters would be questioning the bonafides of The Economist. I realize they only print on dead trees and they have a weird editorial policy you're unfamiliar with, but last I checked the had a slightly higher barrier to entry than the hoops one has to jump through to post on /.
The premise is that if you tax the economy, it won't grow, and people will adapt to the new code and hide more income, resulting in less revenue than you expected from your percentage increase. Whereas, if you lower rates, you spur the economy to grow and therefore more revenue is generated.
Laffer, Mundell, et al. can explain this far better, of course.
HBI's Law: Frequency of calling others Nazis is directly correlated with the likelihood of the accuser being Communist.
A lofty article without some kind of qualifications to back up is pretty useless.
It's the ideas in the article that matter, not who said them. Appeal to authority is a common fallacy.
Give me Classic Slashdot or give me death!
Unless you have $1M to litigate, a patent is next to worthless. The lone inventor, unless rich, gains no real protection from them.
Imagine there's no patents,
And no copyrights,
We'd all share our software,
And reach new creative heights.
You may say I'm a dreamer...
Give me Classic Slashdot or give me death!
The weirdest trope just occurred to me:
I remember when a barb with whirlwind and two life-steak greatswords was unbeatable. Now I don't really care whether it's bash-pallys or static field sorceresses that are in vogue, I just play to have fun and enjoy myself.
They nerfed barbs, and just like DotComs got nerfed, so will the patents be nerfed by the invisible hand of the economy. Better to just think about building a career and a family than to worry about which field is "hot."
We would need replicators, so that food would not be a problem, then i would work for free... a few hours a day...
If we got rid of the ravenous parasites on the economy that is ownership of capital and government, and replaced the ideal of maximizing profit with that of maximizing production, and replaced corporate management with self-management by labor, there's good reason to believe that we could all work for a few hours a day and maintain or improve our standard of living. No replicators needed.
Give me Classic Slashdot or give me death!
It's an op-ed piece, meaning editorial opinion--which needn't include tax.
Typically in The Economist, an opinion piece will be included in an issue with factual articles corresponding to the topic. "Peace" of crap though you believe it to be, the editorial is significant because the newspaper is influences powerful people--such as members of Congress who are responsible for reforming the USPO.
Fewer heads of state and business leaders read Slashdot than The Economist, but other than them, your demographics comment is accurate.
The Economist is fiscally liberal (from the European definition of liberal) and socially liberal (from the American definition). In fact, the previous issue had an editorial on the subject of liberalism. You might have found it, too, shockingly void of statistics and other lies on which to rest your wearied intellect.
The article references one of the traditional justifications for patents: that an inventor is granted a time-limited monopoly in exchange for full disclosure of the invention.
But with regard to software patents, particularly ones like Amazon's one-click patent, there are many inventions that are effectively self-disclosing: if you see that it is done, you know how it is done.
I wonder if it would be possible under U.S. patent law to challenge these patents on this basis? I strongly doubt it, but the very fact that such inventions are patented is a measure of how badly the patent system needs reform.
Ideas are not property, and patents do not grant property rights. They grant monopoly rights in exchange for something else. What is the "something else" in the case of things like the one-click patent? What are we, the public, getting that we would not get otherwise?
--Tom
Blasphemy is a human right. Blasphemophobia kills.
And it would be even better if all people contributed equally to society, instead of some choosing to be supported by it. The utopia of socialism ends where human laziness and greed begin.
I think most people want to do something useful, or at least entertaining to others. Of course, there are those exceptions who would become perminant couch potatos. If we can expand automated production enough that we can afford to carry those sorry few for now, they will eventually die of sheer apathy and the problem will be solved.
The real problem with socialism is that there are some jobs that need to get done that nobody in their right mind will do for a living unless threatened with starvation. Because those jobs tend to emphasize mind numbing repitition and back breaking labor over any sort of thought or skill, they are also typically held in low esteem, thus they pay very little. Modern capitalism 'solves' that problem by making sure there are a sufficient number of people threatened with starvation to fill those jobs. Before that, the problem was 'solved' by slavery. Those are the jobs that need to be automated out of existance. Most of those jobs are the sort that CAN be automated out of existance.
If you understand the USPTO mentality, there's no patent that you can't get through, they are simply that inept. I was once in an R&D position, after a having a few patents under my sleeve, I was able to pass just about anything without the help of a lawyer, true, they reject everything outright, but they simply don't understand what they reject, and are used to being corrected, after a few rounds of bogus rejections, some meaningless concessions on your part, and making them feel stupid enough (refuting their bogus rejections), they'll accept anything. I don't think I ever got a USPTO comment or rejection that was relevant to the invention in question. Knowing that, the temptation to broaden the patent is huge, because you want to leave room for said meaningless concessions, and because employer's greed does play a part once they find out what they can get away with. It's a good thing patent litigation is so expensive, because even the few patents I personally wrote for my employer could be used to wreck havoc on a lot of companies if they were actually used.
http://www.gnu.org/philosophy/words-to-avoid.html
Everything said in the parent post is true.
However, the main critisism of the author was that applying for European wide patents is much too expensive, because you need to pay each national patent office -- and provide a translation.
From my own experience I can say that this is true (and forced us to concentrate on only three big markets in Europe).
However, it is not true that applying for a patent in the US is much cheaper. There the embarassing hight costs stem from the patent lawyers (and you'll need tehm, if you want to get a patent and not yourself a lawyer).
- You have to know how to do a patent search. This is fairly mechanical,
but many don't know how to do it.
- You have to know what keywords to search on. There can be many different
names for the same things, particularly between different disciplines (eg,
singular-value decomposition, principal component, Karhunen-Loeve, reduced
rank, and eigen-whatever can all mean the same thing). Even experts in the
field might not be able to think of all possible terms.
- You have to know how to read patents in general. This is no small thing.
- You have to be able to understand the particular patent you are reading.
Good luck. Patents can be remarkably opaque. I've read patents in areas
that I'm expert in, and been left with only a vague idea of what they were
about.
- After you understand the technical aspects of the patent, you have to analyze
exactly what is and is not covered by the patent. In many cases this can
take considerable legal expertise. It may even require the services of a
patent lawyer.
- Even when you have determined that an invention is covered by a patent, is
the patent valid? For example, a three-year-old patent might describe a
method that's been well known for a decade - in other words, it's prior
art. A common occurrence is that only part of the patent might be invalid.
Do you take the risk of ignoring the patent?
- Has the owner of the patent been paying the patent maintenance fees? Has
there been a judgement overturning or limiting the patent?
I'm sure others can add to this list.To my feeble mind much of the idiocy surrounding software and business methods patents stems from the premise that if I "create" an idea then it costs me something(in an economic sense - not only cash) if someone else uses that idea. The problem with this premise is that it is false. If I find a method of organizing my company that has the effect that I have increased my profit margin by 20% how does it cost me if someone else uses that method. It seems to me that I will still be benefiting from my "invention".
Even if you insist that it does cost me something(perhaps the overall market will be influenced because my competitor lower's her prices) how is that as a direct result of the patent. It is a choice that they have made to give up economic benefit to increase theit market share.
To my feeble mind it seems that patents are meant to protect things that have real costs if they are taken. An idea is not such a thing. To the contrary, an idea can have a net benefit the more folks that know about it.
It made quite a row when they endorsed John Kerry for President, considering their staunchly fiscally conservative point of view.
I think you actually mean "It made perfect sense that they endorsed John Kerry for President, considering their staunchly fiscally conservative point of view." Bush is a walking fiscal nightmare- no intelligent businessman should support someone whos entire economic policy amounts to "Charge it!"
The Economist's endorsement of Kerry was the most damning commentary on Bush's presidency I've seen. The election cover was sheer brilliance: "The Incompetent or the Incoherent". I love the magazine- it's the last bastion of intelligent conservatism out there.
But then again, don't mind me, I'm just bitter. I didn't leave the Republican party- it left me.
"Seven Deadly Sins? I thought it was a to-do list!"
I was simply refering generally to what might be described as a fiscally conservative, socially liberal viewpoint. Similar != Same.
GENERATION 25: The first time you see this, copy it into your sig on any forum and add 1 to the generation. Social exper
If you create something, it is yours. If individuals, acting in the name of The Public, choose to steal that which you've created, thats another matter. But you don't keep what is your creation by permission, you retain it untill it is stolen.
Who created numbers? Who created mathematics? Language? Ideas cannot be owned. There is no such thing as "stealing" an idea, except in the ramblings of a few confused souls. The moment you transmit an idea to someone else, whether by vocal communication, pictures, software, or the written word, you relinquish control of that idea. You no longer have control.
Patents, copyright, and trademarks (so-called IP law) were instituted to extend the owner's control past the point of transmission, to encourage them to continue creating. It is an artifical limitation placed on a person's ability (as is most law).
If you wish to retain absolute control of your ideas, then don't breath a word of it to anyone else, ever. But don't be surprised if someone else comes up with the same idea.
Ideas are not property, IP law merely treats it as such. Sometimes, this abstraction is well founded, sometimes it's not. There is no shame in discussing its failings.
Higher Logics: where programming meets science.
The system of patents was developed in a time when there were few people where were experts in a particular area, and the chances of them coming up with the same idea at the same time was slim, because the chances of them working on the same questions was slim. It did still happen sometimes though. Now, however, with our factory education system, there are dozens of people all working on the same issues and they come up with the same solution. The original idea was to protect the inventor from someone using an idea that they developed. Now, the same idea is probably patented at the same time many, many times during almost any parent's review process, which idealy would invalidate a patent on it's own. Why? Because obviously the solution was obvious to someone knowledgeable in the area of technology to have developed the idea at the same time. The patent system has outgrown it's usefulness and needs a major overhaul so that only those truly unique inovations can be patented. In these days, give enough resources, anybody can come up with a solution for nearly any technical problem, it's the true innovations that need to be protected. For example, the idea of an integrated circuit could be patented, but the idea of using a slightly different material to improve performance on it's own is questionable. Through trial and error, you can find what works best and doesn't, but the original idea itself is unique. Same with nearly every other "innovation" in technology today. The advancement of knowledge and problem solving should have raised the bar for patents, but it hasn't, instead the bar has been lowered.
Drill baby drill - on Mars
Well, both parent posters have a point.
Maybe a system would be best where patents and copyright (etc.) is granted (exept for software and businessmethods, obviously) for a period of 5 years, being renewable every 5 years untill a total of 20 years. Each time the fee could get up, say from 1000 to 5000 to 25000 to 125000.
With an adequate social correction-mechanism, which allows individuals and small companies to do it for less (for instance 1/10th for an individual developer), and augmenting it depending on the size of the corporation, the problem you and some other poster mention would be greatly diminuished.
In that case, the prime purpose of lingering patents and copyrights that go on almost indefinately or no1 even knows exactly who has the IP rights (with as consequence that many works just go wasted and become lost for society), vanish, while at the same time there is a system in place that gives a more equal chance for small companies/individuals to be able to file patents and protect patents as well.
--- "To pee or not to pee, that is the question." ---
First of all, I like the idea of http://fairtax.org/, but here's a very simplified idea that follows the same logic.
Whether we keep or get rid of income taxes, it doesn't matter for this idea...
Fix it so 30% of the total federal tax revenue is redistributed. If this means raising taxes, so bet it. If this means cutting wasteful spending, so be it. But with spending over a half trillion per year on "defense", I'm sure we could cut a big part of that, although some would disagree.
Semi-free college education at the least. Do something like this...
In exchange for a free college education, the person would pledge 5% of their income for 20 years to help pay for this. So not only would someone be contributing to the regular tax system by having a better job, but they'd be putting 5% of their income into this system. 5% of $0 is $0, so if you don't earn a dime in a given year, no big deal. And it's over after 20 years, hopefully by age 42 or so.
Personally, I think we should get rid of the IRS and get rid of property taxes, and simply go on a consumption/sales tax system, provided that the rebates are kept.
The 30% thing I mentioned earlier, let's play around with it. If current federal income taxes results in $2000 billion, 30% of that would be $600 billion. We could cut a large chunk out of the DoD, and modify some tax brackets too.
-
Now we got $600 billion among nearly 300 million citizens. That's $2000 per person, but we don't want people having babies just to get the money. Solution: Limiting it to just adults would result in about $2666 per person, if there are 225 million adults. Or maybe just limiting it to anyone who is age 5 and up, which is kind of like anyone who is school age.
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If a college tuition is $4k per year, this could very well help. This could help seniors too. And those who are homeless on the street who get $0 now, this would surely help.
I just recently wrote a piece for AlwaysOn with a similar view, from the perspective of the inventor.
http://www.alwayson-network.com/comments.php?id=57 63_0_5_0_C
If the methods they develop are any good, wouldn't they be a reward in itself? It is after all methods of making money they are developing?