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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."
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.
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.
Originally patents were invented to aid competition by allowing a small business with an orignal idea to avaoid being sunk by a flood of copy-cat products from an established business. The obvious problems however quickly emerged: large businesses can get patents despite the fact that they don't need them, and the ability to patent an idea instead of an actual product. These two problems have completely overshadowed any benefits of the patent system.
Philosophy.
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
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 sharks will just carry them safely back to shore. ("Professional Courtesy".)
Hacker Public Radio is our Friend
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.
Guess what a patent is worth outside of a courtroom? $0. Guess what a flimsy patent is worth inside a courtroom? $0.
That's BS. A lot of small companies will settle a patent dispute even when the patent they have allegedly infringed is a flimsy one, especially if the requested licensing fees are substantially lower than the cost of going to court and getting the patent invalidated. Result: $$$ for the patent holder of a flimsy patent, without setting foot in the courtroom.
rage, rage against the dying of the light
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
Amen. I am amazed that more people don't see what a problem this is. The problem is at least partly that we think prisons are for people who break the law. The word criminal is too broad. Prison should be for people who are dangerous.
Some may argue about non-violent drug users being dangerous on some level. But honestly: which do you think is more dangerous: a pot smoking hippie or anyone who just came out of maximum security prison? In general, being gang raped and subject to chronic violence tends to make a man more dangerous. Why would we want to apply a "solution" like that to someone who isn't violent in the first place?
I am strongly for the legalization of marijuana. I donate to NORML regularly. I've never smoked pot in my life.
Cheers.
PS - Another point nobody seems to like is that our prisons have become torture chambers. Sure, it's not our guards doing the torturing (usually) but they turn a blind eye. I don't have much sympathy for violent criminals, but again, we're processing these people to likely become more violent. This is stupid.
Oh well you should visit Europe, Amsterdam in particular. You see, there's this little protestant, burgeois, probably a tad cinical country called Netherlands where pot & mushrooms is legal; the dealers are just weird shopkeepers... and the stuff you get is premium quality... and it's all properly taxed. The bad chem stuff you find in raves & discos is illegal but these people are sensible enough to understand that fear of arrest and SWAT assault dissuades people from looking for treatment rather than from getting fsck'd into the substance abuse. So, since there's no SWAT lusting to rape your butt if you get a bad trip, once you're back from the dead a thoughtful shrink helps you out of your problems and keeps an eye on you in case you're still too rabid to come to terms with your shit. You know, one thing that really helps is having that warm feeling that if you stumble and fail you have a community that doesn't want to trample you; actually they want you out of trouble, if not out of goodwill, at least to avoid having a looney shooter on the run. It helps a lot, lot more that a gun in your pocket and paramilitary officers on patrol. Think about it... it's the essential diff between Old Europe and you guys
without offence,
e
Mi domando chi à il mandante di tutte le cazzate che faccio - Altan
Child rapists are the scum of the Earth, dude.
Drug dealers barely even mention a nod, particular those truly "non-violent" ones.
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.
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
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.
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.
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.