Patents Chilling Effect on Science

cheesedog writes "The American Association for the Advancement of Science recently conducted a survey on the effect of patenting on the sciences. The results are frightening: 1/5th or more of all research projects in the United States are being chilled by patent holders. The sheer amount of research being canceled because of licensing issues is astounding, but at the same time many of these researchers hold their own patents and therefore contribute to the problem."

Comments

So much for patents fostering innovation

[Trigun]

So what's the reason we have them again?

Re:So much for patents fostering innovation

[Anonymous Coward]

We have them because the average American wants to believe in a world where he/she can one day strike it rich by inventing some widely used product.

The problem is, the patent system doesn't really work that way, no matter how much patent supporters pretend it protects powerless inventors. In practice, a small inventor gets screwed anyway, because 1) complex ideas tend to rely on other complex ideas (giving rise to widespread cross-licensing among already powerful corporations) and 2) even with a patent, a small inventor will need incredible financing to legally enforce the patent. How does a small inventor get such incredible financing? Yep, by essentially giving the patent to a powerful corporation in return for a relative pittance.

The dream of striking it rich with a patent is a nice one, but it's more like a lottery than anything. Extremely rarely, someone wins, but most of the time even those who invest large amounts (people who actually invent/create things) lose out.

Unfortunately, people don't like letting go of dreams, even if they've been tricked into believing them; even if actual progress in arts and sciences grinds to a halt, many will happily make that sacrifice for an imaginary reward.

Re:So much for patents fostering innovation

[sl4shd0rk]

> So what's the reason we have them again?

Because when your capitalist economy begins devouring itself, you need to be able to use the legal system to trap people/companies into becoming victims to sustain the gluttonous beast you've created.

Re:So much for patents fostering innovation

[fireweaver]

Today, to establish monopolies on entire fields of knowledge and commerce. To make the barriers to entry by would-be competitors too high to contemplate. To parcel out, on a fee basis, knowledge and culture in driblets and drablets, with restrictions on how that knowledge or culture can be used. To ultimately licence knowledge itself, with the end result being the reinstatement of the medieval guild system.

All of this backed by the full force and power of a government that is as corrupt as the system it is backing up. That enough reason?

Welcome to the new serfdom.

Re:So much for patents fostering innovation

[Stripe7]

We have patents so our lawyers and corporations can make money suing people who actually try to create new products. Not too much of a worry, soon other countries are just going to ignore our patents. This will happen when some US patent company tries to sue some Foreign Film maker for making a movie that stepped on US patented storylines.

Monopolies are always bad

[dada21]

Don't most government-endowed monopolies have chilling unintended consequences on the markets they're supposed to protect?

Copyright gives incredible power to the top publishers (with a lock on book stores), the recording industry, and the movie distributors.

Government's monopoly on violence prevents the average person from defending their property, and use of the monopoly outside of our borders causes anger towards our citizens.

Government's monopoly on prescription drugs causes the costs to skyrocket (death sentence for the poor) and useful drugs to be delayed for years.

Government's monopoly on patent licensing is no different. The playing field is far from level. Drug companies would initially have to charge more to sell their meds, or sell through doctors groups (where generics might be contractually offlimits for those doctors). Patents don't protect bootlegs anyway, which get more pervasive as the web gets larger.

For our society to grow, we need to accept that monopolies are always bad, and only government can create them. There are no natural monopolies. The 4 or 5 times there might have been in the past I'd argue weren't meant to last, but they're gone anyway.

Re:Monopolies are always bad

[LardBrattish]

For our society to grow, we need to accept that monopolies are always bad, and only government can create them. There are no natural monopolies. The 4 or 5 times there might have been in the past I'd argue weren't meant to last, but they're gone anyway.

I agree, but governments should control certain natural monopolies for the good of the country as a whole.

Does a monopoly on telecoms infrastructure run and paid for by the government and leased to providers hurt competition? No. It helps by providing a level playing field to all companies. The government can also provide connections to rural areas that a private company would find it uneconomic to serve otherwise. If it makes a profit then tax cuts all round - which I have to say I'm a lot happier about than share dividends for some...

The same can be argued for all other basic services (Water, gas, electricity). The private sector will run a "wait until it breaks" maintenance scheme without really having to face the consequences of failure (discomfort or even death of customers). Ask some New Zealanders about the consequences of unregulated privatisation. The privatised electricity company cut back on maintenance, reported record profits & dividends for shareholders then one of the two power cables to Auckland failed & New Zealand's biggest city had rolling powercuts for weeks while it was fixed.

I'm not some crazy socialist arguing for nationalization of all property but there are just some things that are far too important to leave to the private sector that has repeatedly proved unable to provide the service.

The madness reached its peak/nadir in England when the privatised railway infrastructure monopoly (which had just come off of several years of issuing large dividends to its shareholders) went to the government begging for money because they didn't have enough to do the essential maintenance program that they were being forced to do after the latest fatal rail crash caused by poor track maintenance. Within two days of receiving the money from the government they announced another big dividend for their shareholders.

Monopolies are BAD if a company holds them (Hello M$)

Monopolies can be good if a government administers them responsibly and the alternative (private ownership) is inevitably worse.

Re:Monopolies are always bad

[laughingcoyote]

I get so sick of this Ludwig von Miser garbage, but it seems enough people take it seriously enough that it requires a refutation. Anarchy doesn't stay that way, no matter what you do-eliminate government now, and the biggest, strongest, and most ruthless will very shortly be running a dictatorship. Also, I've always wondered why good old Ludwig seems to so strongly support the rights of "corporations" to be free from government regulation-when their very existence is owed to a government regulation.

Copyright I actually agree with you on, but a limited degree of copyright/patent could be a good thing. The problem is in scope (copyright should be an industrial regulation, not applied to not-for-profit copying, same idea with patents, and both should cover only items which are specifically registered) and time (we should be talking about a 5 year or so term, maybe with one optional and very expensive renewal for an absolute limit of 10 years.)

Government's monopoly on violence prevents the average person from defending their property, and use of the monopoly outside of our borders causes anger towards our citizens.

You have got to be kidding me. What state do -you- live in that there is not an exception in the law allowing a person to use violence in self-defense? Please, cite the relevant law, stating that violence is unacceptable even if you are being attacked. Also, note that state governments (which have no authority to wage war) are the ones that handle laws like murder and assault, not the federal government.

As to the current administration's misuse of force overseas, won't argue with you that the current policy is a terrible mistake, but the proper remedy of that is for the people to demand that it stops. What is the alternative you propose-should every citizen have the "right" to wage war, and access to whatever weapons they might want to do so with? Do you think that would've taken down Germany and Japan, in a conflict a bit easier to justify? Just how could we avoid the government having a "monopoly" on the use of military-scale force?

Government's monopoly on prescription drugs causes the costs to skyrocket (death sentence for the poor) and useful drugs to be delayed for years.

Might you point out to me which prescription drugs are produced by the government? I don't seem to recall any. Now, you could be talking about overlong and overbroad patents again, in which case I'm inclined to agree, but there's a big difference between government monopolies, government-sanctioned monopolies, and patents. Please be clear about which you mean.

Government's monopoly on patent licensing is no different. The playing field is far from level. Drug companies would initially have to charge more to sell their meds, or sell through doctors groups (where generics might be contractually offlimits for those doctors). Patents don't protect bootlegs anyway, which get more pervasive as the web gets larger.

Actually, patents -do- protect against bootlegs in theory, just as laws against murder protect against people being murdered. That doesn't mean that no one ever gets murdered, or that bootlegs never get made, but again, you're really stretching words to mean things they don't. Now what does the second part of that mean? Is that your theory on what would happen if patents went away entirely? If it is, I'll happily refute that too. The Founding Fathers saw fit to give Congress the authority to grant copyrights and patents. Now, they've taken that WAY too far, and forgotten the -purpose- of that power (promotion of the useful arts and science), but let's fix it, not scrap it.

For our society to grow, we need to accept that monopolies are always bad

No, they're not, actually. There are cases in which a "monopoly" prevents chaos. In some cases, you need a central regulatory authority, in other cases, a given power cannot be allowed to be used by all comers, and in others, it's simply the most efficient use of resources.

Re:Monopolies are always bad

[Money for Nothin']

Natural monopolies can't exist without government backing them up. The usual culprits creating monopolies are licensing, regulations, specific mandates and safety requirements.

Microsoft is a natural monopoly. It got there without the "ususal culprits" you describe.

By economic definition of a "monopoly" -- which typically refers to a single producer controlling at least 75% of a given market -- and in the desktop OS market, MSFT is still a monopoly.

How does MSFT exist -- currently, as you and I write this, no less -- as a natural monopoly, in absence of government intervention? Indeed, it exists *in spite* of attempted government intervention (the DOJ lawsuit from a few years ago). A fair argument can be made (and I've done so in the past) that competition like Linux has entered the market and will destroy MSFT's stranglehold on the desktop OS market. I think that's likely in our lifetimes, despite the failed predictions of "this is the year of Linux on the desktop" we used to see on Slashdot until a couple years ago; only, I doubt it'll happen within at least the next 10 years.

Or try the diamond-mining company DeBeers (for which I think a better case for your argument of govn't protections can be made). They are currently the *world's* monopoly supplier of diamonds.

Or -- since monopoly depends on a market's scope, and since markets can change in size, the question of monopoly therefore becomes a question which may be changed solely in its scale (Murray Rothbard smartly did the same thing to illustrate the economy-wide positive effects of free trade, after all) -- how about the much smaller-scale hypothetical of the person on the only raft next to a sinking ship? In that case, the person clearly has a monopoly on the market for floating vessels with which individuals may save themselves drowning aboard a sinking ship. Such an event can occur out in the open seas -- as far away from government intervention as you'd like. It is a clear case in which government is irrelevant, yet, a natural monopoly still exists -- thus illustrating the flaw in your logic.

Such is the problem with ideological political-economy: to every ideological rule, there is a real-world exception. Life, insofar as we understand it presently, is not like software -- a single rule or set of rules does not always apply correctly (just look at govn't policies as a routine example of the failure of such simplistic thinking). There are always cases we haven't considered or accounted-for.

That isn't to say that govn't isn't responsible for many of the monopolies that have existed or continue to exist -- cable and telephone companies in the U.S. are perfect examples of that fact. The railroads of the late 1800s were another. The practice of law and medicine today are industries each gated by a single, and thus by definition, monopolistic, professional licensure organization (the ABA and AMA, respectively). Likewise, various unions gate entry into their professions, creating monopolistic suppliers of blue-collar labor. And so forth. It is beyond absurd based on history to believe that govn't is the solution to more than a small handful of problems (and in particular, preventing physical violence between two people in a fair manner - unless it's the govn't performing the violence, e.g. in the Rodney King case. Then you have the same problem as if the violence came from a private security firm in a theoretical an-cap society.).

But it is equally-ridiculous to claim -- as promoters of "anarcho-capitalism" (which is really anarchism after drawing the system out over any significant time scale, because the "capitalism" part becomes moot once society breaks down into violence - just look at what happened in New Orleans after Hurricane Katrina hit, for example: lots of anarchy and not a lot of capitalism, unless looting can be construed as capitalism now... Indeed, Adam Smith's version of "capitalism" in The Wealth of Nations called for

China and India

[xiaomonkey]

This being one of the reasons why up and coming countries like Chine and India will probably surpass their western counterparts in both science and engineering.

Re:China and India

[The Cydonian]

This keeps coming up every now and then during a discussion on IPR, but it's a long observed fact that countries that are trying to beat the technology cycle often used to reduce IPR protection on goods (the Asian "Tiger" economies as one example, India's hitherto drug regime for another). Note that I said "reduce"; IPR laws in the 50's or so were, for the most part, uniform across the world, thanks to colonalism.

All that has changed with new WTO/TRIPS/etc agreements; we're now more or less back to being uniform on IPR laws throughout the world. Still won't stop your average factory in Shenzhen ripping off a Tag Huer watch, for example, but still.

Re:China and India

[SlashSquatch]

It's the old "the asians are coming." No worries there. They don't have the ingenuity. Actually I'm sure they do, it's just been so suppressed they don't act on it. No offense but the asians I've worked with think twice before ripping something apart and putting it back together. I just do it. No questions and damn the powers that be. It's just on way I add value to my otherwise ho-hum talent base.

I think patents are important to foster ingenuity. On the other hand, I think technical people in general are oblivious to the fact that they get so used up by "society". Patenting was supposed to be a method of capitalizing on an invention in my over simplified view.

One more thing, any researcher worth his/her salt does not let problems of "acquisition of the necessary technologies" stop them. So you can't license the necessary tool or apparatus? Build it. It's likely you'll generate a few patents on your own and doesn't that look fine on a resume.

Want to revamp a stagnant system ? Start with the university tenure. All that really fosters is badgering and politicking.

"Hey, who wrote, "Da Moon Rulz, #1. . . On my car, with a key!?"

Money $$$

[Neo-Rio-101]

Perhaps slashdot geeks are a little different from the rest of the population because we're more motivated by advancing tech first, making money second. Unfortunately the rest of the world doesn't think like that. Science and research is only a means to a wealthy end for some people no doubt.

We live in a kleptocracy

[rsborg]

The wealthy/landed elites constantly dream up ways to make money of the backs of the innovative and hard working. In this sense, Microsoft and the RIAA Cartels pretty much symbolize the "American spirit"... from a corporation standpoint.

None of this will change unless and until we either get corporations to recognize that the US is losing it's ground due to stifling IP/Patent laws... or we vote in people who care.

Republican or Democratic, make sure your representative at least knows (and preferrably cares) about the current state of the patent system.

Oh, and donate to the EFF. I have.

One must be careful not to overstate statistics

[Anonymous Coward]

One must be careful about quoting the figures posted in the above article due to the fact that the survey reported only the proportion of researchers affected by patent and licensing issues that were forced to delay change or abandon their research projects.

However there were no figures given on the proportion of research projects that were adversely affected by licensing issues.

The survey is biased by the fact that those most adversely affected are the most likely to reply to the survey.

When you are talking percentage of a percentage of a percentage of the total population is can be a small fraction of the total population.

Yep...

[vectorian798]

I am in a robotics research team here at UC Berkeley and we too found that often companies patent random stuff that they haven't even fully developed yet. Because patents can be overly broad (like the one on the hardware 'double-click') this can cause problems especially in cases where there is perhaps only one solution (or one cost-effective and viable one anyways) to a given problem. The solution may be blatantly obvious to the scientifically-inclined, but if someone holds a patent on it, what can you do...

I wouldn't complain as much if the patent system hired people halfway-knowledgeable or if they allowed patents only on something very specific (aka ethical to 'patent') and genuinely ingenious. But these concepts of ethics etc. are so hand-wavy that we might as well not even try to 'reform' the system, and instead just get rid of it because otherwise it will be hard to meet the standards we expect.

Perhaps another way to go at it is to have a board of scientifically-inclined folks to preside over the patent system and work at it with newer laws on what can and cannot be patented. Over time as new technologies and ways of thinking come about, such a board can continue to refine the laws. My bid for the people to serve on these boards: college professors from a mix of technical majors from various universities.

In any case, the other question is why would researchers who face this barrier file patents themselves? To do it before someone else does - it's not like prior art holds weight in today's patent system, so it is a quick solution to making sure you don't face problems in the future.

I'll leave you with that.

Re:Recent idea

[wbren]

But wouldn't a company earning large profits from the patents expand, grow, create jobs, pay more taxes, and get the wheels of the economy going?

You were going for a +5 Funny with that tax thing, right? Because where I come from, America, the larger our corporations get, the better they get at avoiding taxation.

Hold that thought

[dereference]

Don't most government-endowed monopolies have chilling unintended consequences on the markets they're supposed to protect?

Yes, I agree they do. However, I think your major premise goes a bit too far:

For our society to grow, we need to accept that monopolies are always bad, and only government can create them.

Consider for a moment copyright law, which you noted (negatively) "gives incredible power" to the holder. Indeed this is true, but how exactly would you propose to ever enforce any type of open source licenses (such as GPL) without copyright law granting a limited monopoly to the original author? Are you suggesting that copyrights in this context are bad? Perhaps so, but if copyrights magically never existed, the world of open source would almost immediately crumble. Your favorite software giants would totally absorb any "free" software into their own.

I think we can't just go from one extreme to the other, and expect all the earlier problems to vanish.

The Patent System Is Not Bad

[MCTFB]

It is the administration of the patent system that is bad.

The U.S. Patent Office is underfunded, understaffed, and underqualified. Much of this is intentional on the part of big business and "patent companies" who profit off of a dysfunctional U.S. Patent Office not being able to do its job. The reasons things are so bad are purely intentional. Also, if a patent examiner rejects a patent, then a few phone calls are made and the patent examiner (who is more than likely some kid straight out of college) is in hot shit by his superior. So, since the patent examiners just want to get paid like everyone else, they rarely blow the whistle on companies which have a lot of lobbying influence in Washington.

Without the patent system, you would basically have a wild west business climate where the only way to protect your inventions is to hire your own thugs to deal with people who infringe on your monopoly. Of course, someone else could hire their own thugs and just steal your invention (provided they had the expertise to manage it) as well. Neither situation is good for business or a climate friendly to inventors, so that is why we have patents.

I could go on and on about why patents are necessary as well as talk about my real world experience with the system, but I think any sane person would agree patents are a necessary evil to scientific progress in business and industry. Nevertheless, the current patent system is so poorly run and so politicized that it might as well be more of a roadblock to inventors than a safeguard right now.

If you want a functioning patent system for the future, maybe you might want to write to your congressmen about how you think it would be wise to reduce social entitlement payouts to retiring old farts in the forms of medicare and social security, and put the money to better use in the U.S. Patent Office where right it is perfectly OK for a patent examiner to work a couple years for the government and then work for a "patent company" or law firm specializing in patents right after that.

Until then you get what you pay for.

Surpass yes, but lead?

[carlmenezes]

I'm an indian and have lived in India for 28 years. See, the thing is, countries like India and China learn from others' mistakes. The US has had to lead in terms of not just technology, but legislation controlling technology (patents, copyright, trademarks) and everything else associated with it (education, research, the internet). When you lead, there are no guidelines and the outcome is based on your best effort.
Throw in a free economy and lobbying into the mix and you end up where the US is today. Other developing countries can see this and analyse it and if they're wise, try to learn from it. This is what India is doing (and I assume what China is too).
The question remains however, is what will happen once these countries catch up to the US and overtake it (yes, that WILL happen, just not soon and no, I'm not trying to start a flame war). Then they will be left to their own devices and where they go from there will be based on the strengths of their governmental systems, the level of corruption at that stage, etc etc.

In a nutshell, it's hard to lead, but easy to follow.

So don't give your country too hard a time for where it is right now. You guys have done a pretty good job (with technology). Ofcourse, its not the fall that matters, but how you get up.

Government-created problem

[Venik]

Intellectual property laws are long-overdue for a revision. A while ago I stumbled upon a site collecting information about the most ridiculous patents ever issued. It's hard to believe the kind of nonsense the US Patent Office is creating. Clearly, the problem is not just with the laws, but also with their implementation. Looking at some of the patents one can't help but wonder about the technical skills of people issuing these patents, or, indeed, about their sanity. It's all very funny until you realize that overly restrictive intellectual property laws are hampering scientific and technological progress. These kinds of restrictions give the edge to other countries that exploit our technological achievements while paying little attention to our patent game. It's time we think about this problem in terms of its impact on our economy and national security.

Innovation & patents

[tiks]

The whole idea behind patents is to make sure that the innovator gets 'credit' for the Idea/Innovation but In my view there are 2 very crucial elements in this process of protection/ownership of innovation, first is the definition of innovation itself & second is the duration of protection. The definition of innovation should come as a measure of new-ness of the idea/innovation i mean what the hell is one click shopping patent for!!.

Second is duration of protection, this has become very important in current times because duration of protection is basically a measure of 'how much time can one reasonably expect somebody else to come up with same/similiar idea given the present pace of development in this field'. Any lesser protection & you are screwing the inventor, any more & you are screwing the rest of society. In present times the pace of development has caught up & also the ability to innovate is also increased due to much better availability of information & resources (like computer/os/compiler) so the patent office should adjust the ability acquire patent protection accordingly. It really is as simple as that. Also, in not doing this patent office really is hurting itself because if everything one dreams of is patentable then effectivly the meaning of protection will be lost & it will just become another legal process that a company/institution has to go through ... of course individuals will be screwed as always :-(

Re:Double Edged Sword

[InvalidError]

Gotta love poetic justice.

Live off patents, get killed by patents. It has become one of those "the cure is worse than the disease" situations. The RIAA/MPAA/etc. are headed down the same roads with their lovely uninteroperable hardened DRM wet dreams, analog hole butt-plug and lock-in policies fantasms.

Shift

[axonal]

Perhaps this is why there is a shift away from science in the US? People say we need to "reignite" science here, but with such strong patent laws I could see why scientists would be more persuaded to research elsewhere.

Re:Lawyers are to blame

[maggard]

90% of congress are lawyers...

Oh no!

You're saying 90% of our highest elected law-makers are folks who received a reasonably difficult to obtain law degree and then got themselves admitted to a legal bar association or equivalent?

Say it ain't so!

No, we want folks writing laws who don't know jack-shit about the legal system, how it is constructed, how to be constructive within it, who couldn't be bothered to get themselves educated on it and then become certified. Apparently instead earning one's self a JD is automatically evil in your world? Right, instead we should have random folks ignorant of legal precedent & practice putting together the legal architecture for our nation.

Look, it ain't perfect, but as is often repeated it's better then the alternatives.

Next week, why we should replace all of the civil engineers designing bridges with 8 year olds who watched "Modern Marvels" on the Discovery Channel!

Re:Recent idea

[Bad D.N.A.]

Yes, but if your taxes were removed today would your prices go down???

Now dont lie...

Collapse

[dereference]

They'd go out of business first, because everyone would be free to copy their software too. Moreover, any source code that managed to leak (e.g. Windows 2000, etc.) would be fair game to include in open-source projects.

Great point; the whole software industry could feasibly collapse in this scenario. Currently our laws treat software like a recipe; nothing more than an expression of a set of instructions. But here, it's as if we'd have the ability to perfectly recreate any arbitrarily tasty dish (say, the perfect egg salad). New software would become literally worthless, because you'd have instant arbitrage down to zero cost. Oh, by the way, the same would hold for other digital content (think movies, music, etc.).

Still, I can't see such a hypothetical universe would be necessarily better in all respects. However it's highly intriguing to consider the vast ramifications.

Peer review?

[nickyandthefuture]

As someone who works in physics research, and is concerned more with publishing papers than getting patents (although my advisor has quite a few), I'd be curious to see if something like a peer review system could work for patents. As with scientific journals, the editors (in this case, patent office personnel) can't be expected to thoroughly know every subject matter that comes their way, but it's not that difficult to find experts in the field who can point out flaws or know right away if work is fraudulent or unoriginal.

Are there any downsides to this that I'm not seeing, besides the obvious one that it will require researchers and inventors to volunteer time? I know that Physical Review Letters has a policy that the editors will automatically reject a significant percentage of submitted papers deemed obviously inappropriate for publication before sending them on for review, something similar to which would probably have to be implemented here, maybe just in the form of the current system.

Re:Lawyers are to blame

[vanka]

Lawyers are destroying this country,

I couldn't agree more. I was listening to a Russian comedian and he was lambasting the American government. One of the points that he brought up was that America was a nation ruled by lawyers where people sue each other for the heck of it. My first reaction was one of anger, but then I stopped anf thought about it. In what other country do we see people suing fast food placed because of their won obesity? Or a child suing his parents for discipling him/her? We have gotten to the point where we no longer have the rule of law, but lawyers and judges reinterpret the law as they see fit. We are now the laughing stock of the world.

Trolling?

[dereference]

These folks are just doing their jobs according to the laws in place.

So because child porn wasn't outlawed in the US until only half a century ago or so, exploiting children was peachy keen because the photographers and participants were obeying "the laws in place"?

Just because something is legal doesn't make it right.

Well no, of course not. It seems like a non-sequitur troll, but let's examine it, just in case you're serious. The idea here is that, if you disagreed at the time, you'd have two choices. I suggest that society would be better off in the long term working to enact laws to make such exploitation illegal. The alternative is simply to point blame directly to the exploiters. Pointing blame doesn't carry much weight, and doesn't really address the fundamental problem now, does it?

So, what exactly would you propose? Take the law in your own hands and shoot all the exploiters? Well, that might work once or twice, but soon you'll find yourself on the wrong side of the law ("right" or otherwise for stopping the exploitation). Murder has been illegal for quite some time.

As a relatively civilized society, we tend to create criminal laws for just this purpose; to allow reasonable enforcement of reasonable standards. Of course it's not a perfect world where right==legal, and I still don't see how you jumped to that conclusion from my posting in the first place.

Re:Recent idea (nice try)

[Stephen Samuel]

Let's say that Microsoft likes your idea and wants to .... uhm, use it. They would have at least 5 choices (in order of your probable preferences).

1. They could notice that you have a patent, and decide not to.... (right!).
2. They could license the rights from you. This is sometimes known as 'a deal with the devil'. Many a company has been burned by some wierd technicality that Microsoft places in such licensing agreements, and if they violate the agreement, you end up at option #5.
3. They could find a way around your patent (they have enough lawyers and programmers that this is a real possibility).
4. They could sue your for breaking any of their Thousands of (sometimes trivial) patents and simply litigate you into oblivion.
5. They could violate your patent (possibly also a non-disclosure agreement signed under the guise of #2) and let you decide if you want to sue them, risking a counter-suit (see #3) and scaring off investors.

Current patent law really only serves the really big companies. Unfortunately, it's the smaller companies that tend to be the source of most innovation. -- Most of Microsoft's big 'innovations' came from small companies [[ the biggest exception would be windows, which was lifted from Apple ]]

Re:Lawyers are to blame

[Just Some Guy]

But, the simple truth is, it's not the fault of lawyers. They're working within the system, getting paid by clients to do what they do.

So your stance is that legal implies acceptable? Interesting. Do you feel the same way about spammers who send from countries or states where it's legal? Loud cars in places without noise ordinances? Spitting on the street where not explicitly disallowed?

You know, we used to have something called "shame". It was the force that kept people from doing things that made the world a worse place, even if it those things weren't strictly illegal. I wish we had more of it now.

Harry Selden who?

[mortong]

Asimov had a point when he said that a decline in scientific advancement was a symptom of the decline of a society.

Re:Recent idea

[nmos]

But wouldn't a company earning large profits from the patents expand, grow, create jobs, pay more taxes, and get the wheels of the economy going?

Sure but most likely having multiple companies competing would produce the same results more effeciently, at least that's the idea behind the free market.

Ultimately an economy only grows by becoming more effecient and patents hurt effeciency in the long run. IMHO a patent system is like a credit card. Initially they both encourage growth but later as the number of existing patents (the ballance) goes up the cost of dealing with the system (interest) starts to outweigh the advantages. Remember that you not only have to pay the cost of filing your legitimate patent but also for defensive patents, patent searches, licenses for tech. you know you infringe, and litigation for tech. you end up infringing accidentally. Every dollar you have to spend on lawyers dealing with this mess is a dollar that you arn't spending making your product better and cheaper. Now consider that you are not only spending that money directly but also indirectly in the cost of every single product you buy.

The logical end game is that we all end up spending all available capital simply dealing with the patent system and none at all actually creating anything new. That just can't be a good thing.

Re:Recent idea (nice try)

[Stephen Samuel]

If you want to get some money out of MS, your best course of action is probably negotiations. Even most litigation is ultimately decided by negotiation rather than the judge.

That having been said, a legitimate plan and ability to survive long enough to win a full-out court battle (normally measured in years) would probably be a necessity in order to get MS to pay out. One company reduced itself to little more than a litigation shell that did nothing more than run the lawsuit for years in order to win against MS.

Unless you're big enough that you can manage a major lawsuit and get on with your 'real' business, I'd say that spinning off a company just for the purposes of the lawsuit(and even negotiations) is at least worth considering.

Re:Dissenting view

[Anonymous Coward]

Because an alarming number of patents assert ownership of the entire problem rather than merely one concrete solution.

Re:locked down

[Anonymous Coward]

for 'not directly usable' read 'not usable'. ie: locked down
and the publication requirements don't mean squat anymore (if they ever did). part of the purpose of hiring a patent lawyer to write your patent is so nobody can tell how your invention (if you have one) works by reading the patent and so it covers as many possible competing inventions as possible.

Re:Lawyers are to blame

[bit01]

Apparently instead earning one's self a JD is automatically evil in your world?

Evil, no. Self serving, yes.

I want people in congress representing my interests, not just those of lawyers.

The drafting of laws is a technical function that should be relegated to the public service, just like programming and bridge building.

Having competing democratic/republican/whatever lawyers design the laws leads to a real life version of nomic.

---

It's wrong that an intellectual property creator should not be rewarded for their work.
It's equally wrong that an IP creator should be rewarded too many times for the one piece of work, for exactly the same reasons.
Reform IP law and stop the M$/RIAA abuse.

Burning is too good for them

[Anonymous Coward]

Reform the patent system. Don't burn lawyers at the stake. Your hate is misplaced.

Care to provide some evidence for this assertion? Lawyers were lobbying hard for software patents in the EU and their trade rags were full of misleading, bigoted opinion pieces.

• Shyster
• Shyster

What do I do?

[trydk]

I find patents quite scary!

I invent something, let's just call it the Dribblecatcher.

I go through lots of research to make sure it is unique, not infringing on other patents and that it has all the qualities demanded of a patent.

I patent it, start production and sell a good number, almost ready to make a profit on my substantial investments ... when Big Bad Company Ltd. introduces their product, the Droolstopper, which clearly infringes on my patent.

I get my lawyer (I cannot afford more than one, so it isn't "lawyers") to write Big Bad to stop them from selling the infringing product. Their lawyers reply that they have no intention of stopping a lucrative business and that they'll rather see me in court.

Now, I could go to court, but I would only be able to sustain the expenses for a very short time and thus have no real choice but letting Big Bad go on with their business.

Then suddenly this letter drops in, "Your product, the Dribblecatcher, infringes on our patent for droplet recovery, US 1234..... Please refrain from further sales and marketing of said product and furthermore please pay us $xxxxxxx for the improper use. We reserve the right to seek damages, etc ..."

Even the best effort on my part to find the above patent has failed and my business is in shambles because of an unscrupulous, big competitor and a "hidden" patent.

What do I do? (Apart from crying myself to sleep every night.)

Re:There is also The Economist Dream

[Anonymous Coward]

Um, I don't know what economist you're referring to, but I think he's full of shit. The economists who actually use rational thought to reach their conclusions (Rothbard, Mises, and the Austrian camp in general -- the ones who base their philosophy on human nature, not ideals) do not dream of "making everything a transaction". That notion is meaningless to the Austrians, because transactions may be either good or bad, voluntary or involuntary.

Theft is an example of a transaction. It's a one-sided transaction, where one party gains at the expense of the other (+1 and -1), but it's a transaction nonetheless. However, no wealth is created by this transaction, because the net sum is zero. The Austrian camp believes only in voluntary transactions, because voluntary exchange results in mutual benefit, by definition. Both sides gain from the voluntary transaction (+1 and +1), and therefore wealth is created (the net sum is positive), and therein is the philosophy of Austrian economics in a very small nutshell.

(I have to explain this because many people believe that wealth "grows on trees", or simply exists independent of production. That's bullshit. Before voluntary exchange for mutual benefit, there was no wealth in the monetary sense.)

The Austrian's dream is simply voluntary association. Freedom. Individual liberty. Total respect for our god-given (not state-given) human rights. THAT is the fundamental principle and first prerequsite of capitalism.

Build On Those That Came Before...

[dwandy]

That's my personal answer, no patents + no copyright.

What makes humanity strong is for one person to build on the ideas of those that came before. If North Americans and Europeans don't build on what humanity has, I guarantee that others will, and it will be our loss.

Indeed, one of my major complaints about the computer field is that whereas Newton could say, "If I have seen a little farther than others, it is because I have stood on the shoulders of giants," I am forced to say, "Today we stand on each other's feet." Perhaps the central problem we face in all of computer science is how we are to get to the situation where we build on top of the work of others rather than redoing so much of it in a trivially different way. Science is supposed to be cumulative, not almost endless duplication of the same kind of things.

-- Richard W. Hamming, "One Man's View of Computer Science," 1968 Turing Award Lecture

1968???
...seems that this is not a *new* problem afterall...if in 40+/- years we have gotten worse (certainly not better!) under the current system, then perhaps the minimum we should look at is the total abolition of the protection systems.

Re:Total UNINFORMED BS

[cas2000]

> While drug companies change their formula slightlty and re-patent,
> the original formula is available for generics.

no, that's not true.

the way "evergreening" works is that they patent a "new" use for exactly the same drug - the idea is to keep the drug out of the hands of generic manufacturers for as long as possible.

quite often, the "new" usage is actually a usage that everyone has known about from day 1, they just delayed mentioning it in the patent the first time around.

but it doesn't matter whether it's really new or only allegedly new. patenting a *use* for a drug rather than either the drug itself or the process of making the drug is complete bullshit - it's not an invention, it's a discovery of a natural process. patenting that is as valid as patenting the "discovery" that water runs downhill.

this is why BigPharma wants to destroy the pharmaceutical patent system as practiced in civilised countries like India - there, they only patent the PROCESS of creating the drug (i.e. the actual invention, rather than the discovery of what happens in nature), which is why there is a huge generics industry in India.

unfortunately, India will probably be forced to bow to US pressure in the next few years, and "harmonise" their laws with US requirements.