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A Look at the US Patent System
cheesedog writes "The LA Times published an interesting editorial on the current state of our patent system. From the article: 'on many levels, the U.S. patent system is profoundly flawed. Too many patents are issued for 'innovations' that are obvious, vague or already in wide use.' Online reaction has been mixed, with PatentHawk striking out in defense of the patent system, and Right to Create providing some support for the LA Times editorial."
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I Am My Own Worst Enemy
I'm glad that someone is finally standing up for the horribly broken, outdated patent system. Maybe this will increase public awareness, and open the door to better software innovations.
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It's nice to see decent media starting to report what most people are thinking and saying.
Patenting is really a boring issue unless your directly involved with its consequences but im happy the issue is starting to come up in mainstream media.
Let's not forget about all of the innovation that has occurred under this "flawed" system.
Sue anyone who uses the most obvious patents into existance.
Don't worry too much, this can't last forever, the worse it gets the more people will complain. Not that I'm against ending this nonsense here and now.
Perhaps we could change the system so that the first time any patent is used in court, the patent holder has to first defend his patent, then sue?
Don't waste your vote! Vote for whoever you want, unless you live in a swing state it won't matter anyways
I've got about 40 patents in the system right now, some issued, some pending.
My impressions of the process that the patent office uses to evaluate whether an invention is novel is that it is fundamentally and deeply flawed.
1. The patent examiner has extremely little time to evaluate a patent. Practically speaking they have just a few hours to spend on each patent. Many of my disclosures have been 40 pages or more in length. How the hell is somebody supposed to read through 40 pages of technical material on a topic they have little knowledge of in 3 or 4 hours?
2. Patent examiners have totally insufficient background in technical areas to evaluate them. They're not stupid people, not by any means, but we're talking about bachelors and masters degrees in the sciences with no research experience evaluating cutting-edge technology done by research phds. The fundamental problem is that the examiner is not up to date with what constitutes prior knowledge in a field. If you get a masters degree in computer science that's all very well, but it hardly brings you up to speed on the latest research, which is what is being patented.
3. The standard for what is an invention is something non-obvious to someone with "ordinary skill in the art". Well, that's a bad standard, because in many fields all product research and design is done by people with beyond ordinary skill in the art. So what _would_ be obvious to ordinary inventors in a field is completely non-obvious to one with ordinary skill. It's like asking asking a casual jogger to evaluate whether a sprinter is really fast.
4. Given the very little time patent examiners have to evaluate a disclosure, they basically perform keyword search on words from the disclosure against previous patents and the web. If they find some other sentences with about the same words, they issue a preliminary rejection. That lets them quickly reply and meet their hour requirements. So your disclosure says "A method for calculating maximum travel windows for freight" and they cite against you a patent on "A method for calculating the maximum size of windows on freight trains".
5. But despite the patent office's initial rejection of almost everything, if you spend more money, which resets the examiner's clock and lets them spend more hours on you, they're perfectly willing to grant you almost anything in the end. In fact that's their job: the patent examiners job description includes trying to help everybody get a patent.
These aren't insights. Almost everybody who has interacted with the patent office has experienced this. And its not going to change, because the patent office is a profit center for the government and they love the system of letting companies get whatever patents they want so long as they pay a lot of money to the patent office to go through the process.
I don't think the people have figured out how things work from the Patent Office's view.
The more things which are patentable, the more important the Patent Office becomes. They can then push for a bigger budget, and hire more people to handle the amount of overwork the Examiners are under. Lather, rise, repeat.
There's no incentive whatsoever for them to base things on comman sense. Or to reduce the scope of their influence. Utopia (for the PTO) will only be reached when anything and everything is patentable, and the PTO is at the center of all attention in resolving things.
It can only be brought under control by Congress; and that's unlikely with all of the money paying for influence there.
Nobody would say that the all the great wealth produced by the plantation system was proof that slavery was ok, or that it is economically benificial - now would they?
It doesn't need to be non-obvious to the layperson. It needs to be non-obvious to a person skilled in the art in question. An if ststement is non-obvious to 90% of humanity, that doesn't make it patentable.
The other problem with compression is that compression is a mathematical formula, not an invention. Mathematical formulas are supposed to be non-patentable.
I still have more fans than freaks. WTF is wrong with you people?
Somewhat off topic.. but still kinda relevant and very funny :-)
I will write on a huge cement block "By accepting this brick through your window, you accept it as it is and agree to my disclaimer of all warranties, express or implied, as well as disclaimers of all liability, direct, indirect, consequential, or incidental, that may arise from the installation of this brick into your building." - PJ
Grok law
"Consider how lucky you are that life has been good to you so far. Alternatively, if life hasn't been good to you so far
Frankly, if your idea wasn't worth $15k for a patent then it obviously wasn't such a 'great idea'. I actually think patents should cost that much, otherwise their inherent value would be lessened. Does that give large corporations a leg up? You betcha! But there is simply no system that benefits the 'little guy' - look at our legal system - case in point. At the end of the day, me as an inventor, want to be able to stem the tide of competition and China is making things hard enough.
I think that those are perfectly innovative. But that's not enough.
The purpose of the patent system is to encourage the creation, disclosure, and use of novel, nonobvious inventions which would otherwise not be created, disclosed, and used. It is not a reward, it is an enticement to produce these three beneficial results.
In the process there is a small dimunition of these three goods -- where there is a patent, the invention cannot be freely used, and while this might encourage others to 'invent around' the patent, it also tends to discourage productive yet unauthorized work in improving the patent itself (although that too is somewhat countered by the availability of patents on the improvements). Normally these minor harms are significantly outweighed by the good of the patent system.
However, I think that two fields, software and business methods, are special cases. In both fields, there are tremendous encouragements towards creation and use of novel, nonobvious inventions regardless of patents. Typically, these inventions are straightforward enough, or are disclosed for other reasons, such that the goal of disclosure is generally also well-satisfied. I do not think that offering patents in these fields will actually produce any further benefits to the public. These fields would most likely be just as dynamic, and with all the same inventions if no patents were issued.
Where a patent cannot provide any real encouragement, there is no reason to issue it. Furthermore, there is no good from a patent in these fields that outweighs the bad that inevitably results from patents. This is an unusual situation, but I think that because of it, we should not grant patents in these fields until they 'slow down' to the point where a patent would actually provide otherwise-unrealized benefits greater than the harm produced by the same.
So sure, they're perfectly good inventions. But are patents necessary so as to get these inventions? I think not.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
So well put. It kills competition. And there are hundreds of companies who's sole existance is to hide behind a limited Incorporation or LLC just to sue people and companies for success.
Now if some DC lard asses could get some insight they would force software into copywrite law and say it is what it is, authorship. The only difference between a book and a program is who/what reads it. In the case of a book, people, in the case of a program a computer reads it. I have never understood why software algorithms and program methods ever made it to the patent office in the first place.
I would even go as far as to say 99% of all patents (not just software) are in fact stolen ideas from other sources and should be tossed out with prejudice. That is, if challenged they have ot pay the legal costs times 10 if they loose.
The patent system as it is has become a gag order on software innovation and a legal tool for extortion.
Completely and utterly revoke all non-physical property laws.
The only people that seem to be calling out for protections are middlemen, not inventors. The human race has been creative since the dawn of time: whether it's music, art, or any one of inventions (like the lil' disk we call a "wheel") that predates all modern inventions, and upon which all modern inventions are based (in some way, shape or form) - - they all have one thing in common: they were made in the complete absence of any protection whatsoever.
Patents 'fixed' something that wasn't broken, and yes, an entire industry was built around it, and yes, if patents are removed some people will lose some money. But the more important issue is that the human race will win, and it will remove the imbalance and inherent problems created when artificial scarcity was created, and your physical property rights were usurped by the notion of intellect as property.
If you think imaginary property and real property are the same, when does your house become public domain?
Yet there was no such requirement in the language of the Constitution.
Requiring a model favors corporations that can afford to throw money away on a prototype or mock-up and penalizes the garage inventor.
The USPTO receives 350,000 applications per year - requiring a model would quickly make it the largest museum on the planet. A museum with storage and operation costs. Large corporations would gladly pay higher fees to the USPTO if it would harm the garage inventor.
Rolling back the clock to require a description of a physical device would both make patents a lot less vague as well as making the obvious harder to obsfucate
Hm, like rolling it back to now? MPEP 2161 and do explore the subsequent sections.
I admit I'm a little confused. I see how your suggestion would be wildly beneficial to corporate inventors, but I wasn't of the opinion that this was your goal.
Something I've always wondered about - If patents are there to foster innovation by allowing the inventor to reap the rewards of his investment (of time, capital, whatever), then why do we have the same twenty-year term for areas as different as software and drugs? For the sake of argument, I'll believe that it takes a drug company twenty years post-filing to earn an economic reward for their research. Software, at least the software patents that I've had to deal with, has a vanishingly small development cost in comparison to drug costs, yet, the most trivial software patent still gets twenty-years of protection.
Yeah, the big problem with SW patents seems to be the grant of patents that are obvious to a "person having ordinary skill in the art", but wouldn't a shorter term for SW patents make some sense, given their shorter development time and smaller development cost? Yes, the system is way more broken than this, and yes, you'd have international patent law to deal with, but a two-four year term for software patents might be a manageable compropmise that mitigates some of the problems with stealth patents etc.
Agencies that run this way always remind me that we are currently under another form of government than your ideological democracy
All governments expand to meet the limits of the public's endurance. Democratic governments are no exceptions, they're just more likely to stay at those limit rather than cross over them.
The current US government more resembles the vision of Bismarck than it does the vision of Jefferson.
Don't blame me, I didn't vote for either of them!
They are just average people. Maybe they could get better, bribe-proof people by paying more for the job.
The problem lies in the system, in the perversion of granting a minority of society exclusive, monopolist rights to certain *ideas*, just because they
* got there first
* know how to work the system (i.e. formulate patents, so they sound NEW)
I am a scientist. Why do people pay us for our work? Because they can patent it. If they couldn't, it wouldn't matter a whit "how much it worth", because anyone and everyone could copy it. I could invent the world's best mousetrap, but without patent protection, the company paying my salary could not manufacture it at a reasonable profit. The day they released it, the next company would copy the design and have it to market it in weeks.
Scientists and inventors are paid what their information worth - however, how much the value the information has is based on context. In a world where it can be copied freely, the answer is about the marginal cost - zero.
And yes, we would keep on inventing - as soon as we got done slaving away at Wal-Mart and McD's 60/h week in order to put a roof over our heads. And just imagine the fancy equipment we can afford on that wage!
poor (50%) and doctor education (40%). Direct to consumer is about 10%.
In any case, since when spreading information a waste? I am not sure what point you are trying to make.
I've heard similar things said about the "loser pays costs" system of civil claims, that it would result in almost nobody ever suing.
I live in a country that uses this system, and a look at the listings in my local court/the number of ambulance chasers advertising in the media tells me that this just ain't true.
I'd leave the "triple" aspect of the GP's post to the discretion of the judge: if the judge thinks the plaintiff is, essentially, taking the piss, then he can award it. Otherwise, I'd suggest: return of all payments, plus interest at 6 percent over base lending rate, plus compensation for the defendant's time in dealing with it, plus a small percentage extra as a slight deterrant.
Perhaps all payments made should be held in escrow until the case is settled, just to ensure that at least most of these funds are available when the time comes. This solves the problem raised in the other response to the poster.