Slashdot Mirror
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."
And here's my solution to the nation's overpacked prisons: everybody behave! See, it's really just that easy ... now go do it!
And the chances of these kind of reforms going through are... what? From a national economic standpoint, even the US has an incentive to pump out as many patents as possible, no matter how frivolous, in order to extract money from corporations in other countries, since the US is using the WTO to push its "intellectual property" regime onto as many countries as it can.
Europe has a patent problem too, don't just pick on the US!
In other news, David Boies, acting on behalf of Darl McBride, has filed three suits against IEEE for infringement of patents #13,371,337 #3,133,731,337, and #8,013,580,135, "Method for fixing the US Patent System", "Method for Borking a Patent System", and "Method for Subtly Implying That Every Idea In The World Is Mine, All Mine", respectively.
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.
From the article:
First, create incentives and opportunities for parties to challenge the novelty and nonobviousness of an invention before the PTO grants a patent.
Prior art 'bounty hunters' and adding some common sense to the patent process sound like great ideas. Too bad they'll never be implemented, due to expensive lobbying efforts by those who stand to lose the most (i.e. the megacorps).
~Philly
Instead of bitching about how broken the USPTO is, and how the patents they grant are obvious...
Get a job at the USPTO as a patent master.
I currently have no clever signature witicism to add here.
Patent reform will NEVER occur before Political reform. Political reform will NEVER occur without Citizens strongly voicing protests... and frankly, I don't feel like getting up from my computer.
This is a great way to fix the system! They should patent it!
Just put all the stupid, opportunistic, just-graduated-from-law-school-and-need-to-prove-I -have-a-large-penis lawyers on a boat, take it to the middle of the pacific, and sink it.
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
If you buy one of these people's gizzmos to store Linux then this is OK. If you manufactured an equivalent gizzmo and tried to sell thet then that would not be OK.
Engineering is the art of compromise.
One of the major problem with patents (in my mind) is the fact that patent holders are permitted to sit on their patents and do nothing, even when they are aware of infringing acts. Then, 10 years down the road, they spring out of nowhere with the infringement suit. This is what Unisys did with GIFs. Unisys allowed the web to become addicted to GIFs, without filing any suits. No, no... they bided their time! Wait until everyone is dependent on GIFs, THEN spring the trap; that's the key! I find this behavior to be underhanded and repugnant. UNISYS HAD TO KNOW! As if they were not aware that GIF was the image format of choice on the web. It's impossible.
Visit the Game Programming Wiki!
I believe Patents were created to aid innovation not aid comptetition. They exist to protect the inventor. The idea is that if you create something, and don't have the money to bring it to market, someone with money shouldn't have the right to come along, skate your idea, and elave you uncompensated for your invention.
In fact, it's been proven that patents hinder competition, but they don't hinder innovation.
09 F9 11 02 9D 74 E3 5B D8 41 56 C5 63 56 88 C0
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!
The sharks will just carry them safely back to shore. ("Professional Courtesy".)
Hacker Public Radio is our Friend
This basically means that it got a lot more expensive to file patents in the US. It's not uncommon for patent applications to have 100 or more claims. Filing fees are lower if you file electronically, but e-filing is a pain (it's not through standalone application, it's through a bloated Word macro that converts things to XML). The USPTO has long griped that it does not get to keep all of the money collected by fees, and methinks that this is another way to generate revenue by the government.
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.
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
The definition of "important patent" could keep lawyers dining on goose liver for years. What may seem like an unimportant patent today may turn out to be horrendously important many years later.
To celebrate the occasion of my 1000th post, I will post no more forever on Slashdot. Goodbye.
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.
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.
To prevail in an infringement case, an accused infringer has to present clear and convincing evidence that the patent is invalid.
Simply reversing this standard might be good: someone who wants to obtain a 20-year monopoly should have to present clear and convincing evidence that the idea he is seeking protection for is novel, useful, and can be reproducibly implemented based on the patent application. If he can't make a clear and convincing argument, then the patent should be found invalid by default.
Furthermore, patents should be found valid and invalid not claim-by-claim, but all-or-nothing. That way, applicants for patents have themselves a strong incentive only to claim what is actually novel and useful. Right now, almost every patent has claims in it that are ridiculously broad, that create unwarranted uncertainty and risk for competitors, and that courts need to spend enormous amounts of resources whittling down.
I think those two changes alone would do wonders for the patent system. But the IEEE suggestions are also welcome.
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.
Hacker Public Radio is our Friend
join them. Apply for a patent on sending commercial solicitations through electronic mail, then start suing spammers out of existence. For bonus points, send them your first C&D letter in an email entitled "Make BIG $$$ using teh p.a.t.e.n.t system!11!1!!!1 LOLOMGWTF"
This post expresses my opinion, not that of my employer. And yes, IAAL.
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.
And to think, David Carradine does this in Kill Bill, v. 2. I wouldn't have gone to see that movie if I knew it had a scene that displayed such contempt for the law!
"Hardly used" will not fetch you a better price for your brain.
Even if it does have an effect, all it does is give the patenter an opportunity to craft their claims to carefully avoid the prior art while still being annoying.
For this reason, patent lawyers will often tell you *not* to challenge a patent application until after it's granted.
that patents ought to have a sunset provision, kind of a use-it or lose-it. Something along the lines of patents holding for 6 or 8 years, with a mandatory renewal at the end, and every two years after that. If the renewal is not optioned, an expiration notice is sent, with a 180 day grace period for renewal, and revocation afterwards. This will weed out a lot of dead wood in the patent world, and make the patenter's clearing house firms that make a killing on buying up old patents do more work to keep the system in check.
Ok, it's just a thought but...
1) Since inventors are people, how about restricting the assignee to people only.
2) Make all payments to the assignee and or inventor a matter of public record.
3) Make it illegal to withhold license of patents to individuals or corporations willing to pay more than the current maximum amount stated in public record.
(Wordy example):
So Joe Inventor creates a widget for Company Z. Joe would be the inventor and some other person is (maybe even Joe) will be the assignee. Z Company will license the ability to make widgets by paying $1000 to the assignee. The $1000 is posted as a mater of public record. Now anyone or any company can pay $1001 to the assignee and have a license to produce the widgets.
A market effect of an open auction etc..
All the worlds indeed a
An even better way is to just reduce patents from 17 years to 5. This reduces the incentive for patenting trivialities, and if they do get patented, it becomes a more reasonable strategy to just wait it out.
The patent system was concieved to protect unique, innovative, and useful ideas. Now, I may not be one to complain, but I seriously doubt the uniqueness of the spiral stack of post-it notes, which is almost identical in its description to the patent on a straight stack of post-it notes. Also, software patents just suck in general. There should be no such thing as a software patent, merely copyrights on source code. For instance, the original patent on the Windows OS ended several years ago, because patents only last 7 years. At the time that the patent ends, the patent holder is required to release the product to the public for use. I don't know about you, but I payed good money for this crap-o-rific Windows XP. Do you know why? Because Microsoft filed a patent for every single friggin' line of code they've ever written (obviously an exaggeration, but they have taken out multiple patents as ways of extending expired patents). I say we abolish the patent system, abolish all forms of unbacked currency, and go to the liberty dollar.
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.
Although you'll probably want to sedate them first.
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!
The last time this came up someone posted an interesting idea. If the USPTO can't reasonably review all the patent applications simply accept them all. But change the expiration to say 2 years with an option to renew the patent for the full 17 year and make the renewal cost a considerable amount of money (eg $40,000). This will give legitimite patents the protection they need to develop their idea enough to know if it's worth more effot. It wouldn't stop people from filing frivolous patents but the submarine patents would probably disappear almost entirely.
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.
Hmm, the article seemed like a good overview with some useful suggestions.
But it completely left out the biggest, IMHO, problem with the patent system: triple damage for "knowingly infringing." This one policy (not sure if it's in the law, or a court precedent) simply has to go before any reform based on competitors will work.
As it is, every IP lawyer tells every engineer to go out of their way not to learn about competitors patents. And certainly don't write down that you know. And abso-friggin-lutely don't let the patent lawyer know that you know. Because if there's proof, boom! triple damages. Regardless of whether you also "knew" that there was prior art, that your company already had a patent that covered the same thing, that the patent was invalid, or that it was obvious to a skilled practitioner of the art.
Overturning this one aspect of the patent system would let tech companies actively monitor their competitors patents, get valuable technical details out of them, and challenge the patents *before* infringement suits are brought by the holders. It would curb the worst of the submarine patents because companies would *know* when someone patents a standard (esp one being developed) without being forced to turn a blind eye to avoid tripling their liability later.
This New Scientist article discusses the evidence for a link between regular pot use and schizophrenia. There is also a possibly a link between pot and depression, but it's hard to tell because regular dope smokers often fail at education and end up unemployed - not exactly a great outcome either.
Any sufficiently advanced technology is indistinguishable from a rigged demo
--Andy Finkel (J. Klass?)
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.
Send/track messages to 100K people: www.xPressAlert.com
Simple - abandon software patents, and cut down the times for the other patents back to what they were to start with.
The reason to have a patent system is to encourage the inventors to promote and freely disclose their inventions, rather than keeping them to themselves. Not to protect inventors rights, or anything like that.
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)?
U.S. patents already have such maintenance fees, and large corporate holders of patents still pay them.
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
If we shot everyone who used drugs, there wouldn't be any customers, and thus there wouldn't be anyone for the criminals to sell to so we'd be able to recoup them into the productive workforce. And the now-dead drug users wouldn't be a burden on that workforce either.
And what about that warm, fuzzy feeling feeling mercenaries call killing? I'm a pacifist, but I recognize the value in snuffing out an addict's existence. It's a good investment and our species' success is a testament to that survival strategy called killing off the weak.
More seriously, it does seem somewhat illogical to write-off the costs of treating millions of addicts as cheap while viewing the costs of treating thousands of criminal violence survivors as expensive.
paintball