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How to Fix U.S. Patents
Frisky070802 writes "IEEE Spectrum has an interesting article on how to fix the U.S. patent system. It starts with an example of how broken the system is, with Smuckers suing a small company for crustless PB&J. It has a great overview of how the system has evolved and how much it favors the big patent holders, and suggests 3 specific fixes: 'create incentives and opportunities for parties to challenge the novelty and nonobviousness of an invention before the PTO grants a patent,' examine the important patents meticulously; don't waste effort on the unimportant ones that can be ousted early, and for examining prior art, use judges and special masters rather than uninformed juries."
do away with patents.
Seriously, they are anticompetitive and aid MONOPOLY. If we want monopolies, do it the right way and institute Communism already. Governement-endorsed monopolies in a free-market system are bad. That's why Linux beats 'doze.
Le français vous intéresse?
bit late to "fix it". The damage has already been done, they need a system where you can go "Hey they didn't invent that!", where they will require you to give information proving the patent is totally wrong.
Wouldn't you just love to see a Slashdot article saying "Microsoft lose 50,000 patents due to false claims"?
I like muppets.
Make a wild guess at which company is pressuring EU to accept software patents.
It starts with M.
Seems to me like these "reforms" will only serve to lock out the small guy even more. Extra hurdles and extra expense will mean that only those who can afford the best patent attorney can get patents.
The system DOES need to change, but let's make sure that we change to a better system, not just a different one.
LK
"Hi. This is my friend, Jack Shit, and you don't know him." - Lord Kano
not cool for DSL, feather linux, runt, puppy, flonix and others USB GNU/Linux USB distros :
link to Patent on "Portable operating system and method to load the same ".
Instead of proposing more reviews - which will never happen - why not assign patent length based on time and money spent by the applicant on a given patent? For example, if I come up with a patent while taking a shower my application would show that I spent all of five minutes and 0 dollars thinking about it. The USPTO might determine that it is novel but - given the effort - only grant a patent for two years. On the other hand, if I'm a big pharma who's spent tens of years and millions the USPTO might give me a patent in excess of twenty years.
This kind of a approach would dissuade people from filing trivial patents since they'd no longer get a twenty year monopoly for them. Conversely a real EUREKA kind of idea might be worth having exclusively for a year or two.
Lastly, while lawyers aren't very good at determining what is technically innovative, they are good at determining the value of things (ie contract disputes, damage awards, etc.) A lawyer can argue that an application only spent 2.4 million, not 8.2, and thus only deserves a patent for five years, not ten. Patent lawyers are better suited for those kind of battles. So while the counsel of RamBus, SCO, et al hector the USPTO with the relative development cost of one obscure process or another, the rest of us can get on with our lives knowing that we don't have to worry about XOR being patented.
The case workers in the US Patent Office are under the gun to make certain quotas. Failure to make the quota for one quarter will put you under probation. Screw up again in a certain time frame and you're gone. The threat of losing the job is an incentive to rush along with little regard for the absurdity of the patent.
Be excellent to each other. And... PARTY ON, DUDES!
A lot of people in the States seem to think that European-style opposition procedures, where private companies can challenge patent applications before the PTO grants them, are some sort of magic solution to the patent mess.
They aren't, at least not by themseves. Opposition procedures can help, but Europe still grants its share of daft patents.
More worryingly, the number of oppositions at the EPO has been steadily falling over the last ten years, though there is no evidence that EPO quality is improving. Instead, companies seem to be deciding that it's simply not cost-effective to put in the resources to do the EPO's job for it. If you're the size of Canon(Europe) for example (who I've heard this argument from), you've got a pretty good arsenal of your own patents you can hope to counter-sue or cross-licence with, and if the bad patent does come to court, you have the resources to fight it at that stage.
The people the worst patents really impact are SMEs, who have to settle, because they can't afford to fight them.
If I understand the history correctly (and, admittedly, I may very well not), even this isn't quite accurate.
What I understood the patent process to be for was to be an alternative to "trade secrets". The protection of the inventor was the "payment" that the inventor got, not the purpose of the patent. The purpose was to ensure that the patented idea DID become available to the public for study and future innovation from. (So, yes, the first part of your post is exactly correct...)
It seems like it's more recent to look at the patent monopoly as an "entitlement" and a marketing gimmick ("Patented" copper bracelet with magic healing powers - if it's patented it MUST be good, right?) rather than half of a societal bargain. It's gone from being "Well, okay, if you can assure me I won't be punished as a result, I'll go ahead and let the public know the details of my trade secret" to "HA! In your face! I OWN this idea now! And there's nothing you can do about it! HA HA HA HA HA!"
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how about a section of slashdot devoted to patents which have been spotted by a /.er (i remember an article in 'main' about microsoft patenting virtual desktops for example), this way the /. crowd can debunk patents as a group, for example somebody might say "i remember twm had virtual desktops in 1992, here's a link to prove it"*.
/. editors if they feel inclinded) or a /.er can use the following
procedure to officially protest, or report it to that website of the organisation that protests against patents officially (i spent about 10 mins googling and couldn't find it but im sure somebody else knows what i mean)
Then somebody (either one of the
* i dont know if this is exactly acurate, just an example
Just the violent ones. Because they're "violent criminals", not because they're "drug dealers". What do you call doctors/pharmacists/pharmacos which sell oxycontin? Or any of the other life-destroying addictive legal drugs? Or bartenders who serve alcoholics, for that matter?
--
make install -not war
Two of the ideas are already sunk, as they'd require the patent office to spend even more money on reviewing patents. But since they're already out of money, there's nothing more they can do there.
I personally think the patent system is too heavy-weight. A patent should be nothing more than a claim, and it should be granted immediately without review. If you need to protect your invention, you go to court, and point to your claim. At that point, prior art and prior patents are finally investigated. If your patent is useless, it's stamped Common Knowledge, and becomes free. If solid, then you win the case.
As I understand it, this is mostly the way the patent system works now. So what's the problem?
Not that this wasn't entirely predictable.
Individuals, on the other hand, especially those without financial assets, can blithely ignore patents. To me, they don't exist. If I see a good idea, I'll use it. The big guys don't worry about scumbags like me, as long as the majority of Good People do things their way. I'm not about to write books, like Harry Browne did, and get myself targeted.
Now if I am able to afford paying the patent owner something, and I am aware of the patent, I might pay. Or not. The issue hasn't arisen yet because I prefer to invent my own stuff; if I violate a patent it will probably be inadvertent.
Some hurdles don't have to cost anything. Erecting the right hurdles and leveling the wrong ones is what needs to happen. Money is the wrong hurdle, because everyone pays taxes and deserves a fair hearing. Using the process as a "revenue center" is an outrage. Quality hurdles, and I don't mean grammar and spelling, are what we need.
The summary sounds like a well thought out and careful plan. Challenges of bogus patents are good for everyone and can be carried out by anyone practicing in any field. The quality is what I would expect from the IEEE.
I have only one problem, the requirement of "use judges and special masters." That's what we are supposed to have now. Picking them from industry could cement the current big company lock and make things much worse. The government is already supposed to be knowledgable and careful in it's grant of exclusive franchises. A mechanism to get useful information to the people who are actually making the calls is a great idea. Finding and hiring experts from every field is impractical. Granting expert power to "recognized experts" from big companies with conflicts of interest is a recipe for disaster.
Friends don't help friends install M$ junk.
I think you've described the problem exactly. People have gotten used to being too lazy.
People love to whine, but don't want to do anything about problems. I think that's one of the reasons corporations can get away with being so irresponsible - nobody will bother to change their habits no matter what they do, so they don't even need to consider changing their business practices until they're sued. And maybe not even then, because lazy "consumers" will continue to shovel money at them rather than go through the mental effort of taking their business elsewhere.
The issue of the infamous "McDonald's(tm) Hot Coffee" lawsuit came up peripherally on a Groklaw post recently, and the ensuing discussion of the real facts of the case pointed out a few facts that aren't commonly mentioned, like the fact that apparently this McDonald's(tm) had been getting complaints about the coffee being too hot for some time.
If they'd been getting all of those complaints, why didn't McDonald's(tm) quit serving the coffee too hot? Because listening to complaints doesn't cost anything, and evidently people kept coming and paying them for the overheated coffee ANYWAY. If people were willing to continue buying the coffee even after complaining about it, it must not be all that important, right?...(I would have sworn I'd read elsewhere that the plaintiff in that case got coffee from this place "every morning".)
Of course, since the laziness of "consumers" means most corporations have what amounts to a virtual "willingly captive" audience, there's not much point in trying to compete with them, and that means the "not-dangerously-hot coffee and fast food" place down the street will end up going out of business, and those few of us who would actually bother to take our business elsewhere end up not having anywhere else to take it TO. Yes, people's laziness doesn't just hurt themselves...
Even the WORD "consumer" implies this - the "consumer" is nothing more than a metaphorical digestive tract. Corporations offer "goods" and the "consumer" just gobbles them down, whatever they are, and produces economic fertilizer as a result, and that's all that's important about them. Yes, I consider the word to be an insult.
Yeah, I know, I'm ranting. I'll stop now.
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We live in a world of property, and much of the role of government is in protecting property rights. Most properties are subject to taxation, but it seems that Intellectual Property has been neglected. The budget short falls of governments could be reduced or eliminated by simply taxing all Intellectual Properties.
I would suggest a time progressive scheme - say $100 the second year and doubling for each subsiquent year until the property is abandoned to the public domain.
But the company I work for (I should stay anonymous for legal reasons related to this post) has been contacted twice in the past six months about possible patent infringement.
The first time was a patent on storing a subset of our customers who chose to be on a mailing list in a seperate computer file. (This happened when we extracted the mailing list from the DB). Their fee was low so we just paid up on this one even though we knew how stupid it was. It just costs too much to argue.
The second time was a patent on recommending new products to a customer based on the purchasing history of other customers. We've stopped doing that one as their fee was huge and again, it just costs too much to argue. We now recommend based only on viewing habits, not buying. I'm waiting for someone else to tell us we can't do that either.
These decisions made my blood boil, but were probably sound from a business perspective. Still, we aren't even a large company. If I've seen two in six months I imagine a lot of people are getting burned like this. It gives me a little hope then, that when enough people have been burned it will force change.
Kind of a "tragedey of the commons" -- the patent-pirates will destroy their own environment. Except in this case I might prefer to call it a "comedy of the commons".
I shure hope it all comes around soon.
Unless someone comes up with something creative, GaN device technology will be hampered by the proliferation of minor patents.
This is even in the absence of dumb patents (like one click shopping) - these are patents for serious semiconductor work. In this case, stronger patent protections are hampering progress (to no one's benefit) rather than facilitating it.
It's not wasting time, I'm educating myself.
If we can sue auto manufacturers for defective products and workmanship that result in a tragic economic loss and loss of livelihood, then the people/companies can sue the USPTO for dereliction of duty and lack of fudiciary responsibity in handling fraudulent patent claims that result in unnecessary and expensive litigation.
If a district court judge agrees with this then he can effectively order the USPTO to clean up its act or face sanctions or have the status of issued "patents" greatly altered. ("I judge Ronald M White decree that all district 13 patent lawsuits shall be heard in my courtroom." and then declare their own ground rules of patently absurd engagement.)
The Roman Rule: The one who says it cannot be done shall not interrupt the one who is doing it.
As I wrote some time ago (I looked for it so I could just put the link in here but couldn't find it on SlashDot), one of the things that keeps getting left out of this debate, is the fact that because the PTO is being bombarded by thousands of patents each year it needs to computerize the way it works. The steps I see are:
1. Create a dictionary of all words used in applying for a patent. This is rather obvious because a good spell checker is needed anyway. But this goes beyond that. It allocates a unique id number to each of the document's words. This allows you to reduce the overall size of the document quite a bit. (After all, if you use a four byte word that gives you around four billion words and the largest dictionary only has a couple hundred thousand words in it.) Legal jargon usually uses more than four letters in a word and thus the document would be smaller overall.
2. A second dictionary of terms which are equal to each other. This dictionary would grow over time. Basically, things like "flashlight", "Light emitting device", "a device with a lamp in it which projects a beam", and "hand held light device" are all the same or similar. Thus, when a term which is unrecognized comes up in a document it can be added to one of the lists and from then on it is associated with that term. (And yeah, they should be able to add, remove, etc... from the list.)
3. The program should have already scanned all previous patents and created the above two dictionaries. Then when a new patent comes through (since they have to be submitted electronically now anyways) it is passed through the program which determines how closely a given document comes to other patents. Note that this is different from "are the sentences the same" or "are the sentences in the same order". The program should not care what order anything appears in - just do a search like Google and find how many words are the same or similar (remember they could replace all words of "flashlight" with "hand held light emitting device" via word processor).
3a. Since the patent system is divided up into various areas (ie: Games, Construction, etc...) the program should scan across all boundaries to ensure that something from one area is not now being patented in another area.
3b. All entries should be listed (just like with Google) in a descending order of revelance. So a patent which was given out in, say 1816 (The Stirling Engine) isn't re-patented as "The Audacious Engine" simply because all of the places where it says "Engine" in the orginal patent are replaced by "a non-internal combustion device".
4. All applied for patents should be kept on file so they too can be checked against. Notes on why the patent was denied should also be kept on file so they can be referred back to.
People may say we can't do this. Google has to handle over a billion web pages yet it can do it in a matter of a few seconds. There are only a couple million patents. The PTO should be able to handle this really easily. Hire the guys from Google to set things up. (And no - I don't work for Google.)
As for graphical pictures showing how something works - it depends. There are software packages which can compare one item/picture to another but all it would take is to accidentally send the picture reversed, rotated slightly so it looks different, use different colors, shades, shadows, etc.... You can look for similarities but that is about it.
In any event - it is nice that the powers that be are trying to fix the problem (or at least suggest changes) but it would be more realistic to try to automate the whole process so the patents can be throw out faster and faster. Which is why both good and bad patents are needed and both should have their own set of dictionaries. You need the bad patents in there as a way to say "Hey! Here are examples of why you can't have a patent!" Further, the bad patents could be used just like the good ones to show how someone tried once before to get something pas
Someone put a black hole in my pocket and now I'm broke.
They can't patent it, I have prior art here!
You have engaged in the following logical fallacy:
False Dichotomy
By stating that one cannot be against patents unless they are a communist.
A patent is a rule that states that I can't do certain things with my property and labour. for example: make a sealed crustless peanut butter and jelly sandwich and sell it to a willing customer. Absent the patent, this is legal. But the patent system, a collective body of rules limiting the forms of commerce I may engage in with my customers using my property and my labour, states that this is illegal behaviour unless I first acquire a licence from the patent holder. This is therefore a restraint of free market economics, as a third party may now use state coercion to enforce an unnatural monopoly that interferes with the voluntary exchange of goods and services. Therefore the state has been granted more power to direct my labor and capital.
You can certainly disagree with the previous paragraph, and I have a few issues with it myself, but it is an anti-patent statement that is certainly not communist, as it holds paramount the individual right of ownership of capital and labour. If memory serves, communists aren't big fans of that.
I have an idea. I think it might help if patents were only issued to individuals, not corporations. The original idea behind patents, as I understand it, was to protect the little guy from competition and give him the chance to profit from his invention, thus encouraging innovation. Large corporations might like the protection offered by a patent, but it can hardly be argued that they need that protection. Also, we see brilliant inventors create ingenious products and then they see nothing more for that than a nice Christmas bonus. I think I would be demotivated if I studied for years, created some incredible technology and then sat back and watched my company claim it as their own and make hundreds of millions off it while I got basically nothing.
Also, I think it might help to shorten the duration of patents. Technology moves too fast these days for long patents and a lot of cases would never make it to court because they would have been past the statute of limitations. And they should not permit software patents.
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This way, "poor" inventers could still file the initial patent, and then get backing if ever they needed to invoke it, but at the same time nobody (large companies or other) would be able to sue until a serious effort had been made to investigate the patent.
One of the problems now, which I think is partly to blame for how poorly patents are reviewed, is how to balance the cost of filing against the cost of properly investigating the patents. This pretty much solves that problem, since the initial dirt-cheap effortless filing is a placeholder which can be used in more free-market-like negotiations. (E.g., any sure-win patent never even needs to be properly instantiated [thus saving lots of legal fees] since both parties can see the inevitable outcome and would rather not waste the money. Similarly, a holder of a likely-win patent initial filing ought to be able to garner external funding for the more expensive filing. Etc.)
The goal here is to enable/require way more diligence before giving someone the "right to sue" (since as y'all know it's often just the cost of the suit that kills, even if the patent is ridiculous).
More on this idea here.
Anybody see why this wouldn't help (at least somewhat)?
Almost the entire rest of this planet enforces such a policy. Currently no matter how week the case is, the defending party has to effort their lawyers and won't be compensated even when they win the case.
Of course it won't happen, because lawyers make a lot of money from these lawsuites and also from deals like "if you lose you do not have to pay me, but if we win I get X % of the proceedings" (where X is usually > 40%).
Lawyers are also powerful in this country, and - really - who cares about whether the law is actually fair. So, personally, I do not expect to see any change at all.
This maybe off-topic, but does anybody remember the 10bn Deutschmark (about $5bn at that time) lawsuit against German companies for forcing Jewish prisoners into slave-like work during WW-II? As nobel as the cause is, guess who got the first 600 million of the paid money, before a single victim saw a dime...
If you guessed "The Lawyers", you would be correct.
I hope you're trying, unsuccesfully, to be funny. In any case it is cheaper: for one you don't have to militarize everyone's existence, there's your first expense cut. Secondly, it dramatically reduces the risks of having innocent people killed or permanently injured because of criminal activity; lots of expensive therapy and psicological assistance for the survivors saved. Thirdly you might even recoup individuals to productive workforce. Fourthly, how 'bout having that warm fuzzy feeling christians call charity? I'm agnostic but I recognize the value in helping out a human being's existence; it's a good investment and our species' success is a testament to that survival strategy called mutual assistence... if you don't agree fine... enjoy your personal paranoid hell.
Mi domando chi à il mandante di tutte le cazzate che faccio - Altan