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."

Comments

Patent Hawk?

[nizo]

Why would the Patent Hawk folks think that limiting patents would be bad? Oh yeah maybe this bit from their website will shed some light:

Patent Hawk Invention Assistance is $125 per hour. Contact Patent Hawk for further details, and to find out whether Patent Hawk can help.

Re:Patent Hawk?

[laughingcoyote]

Well, I don't think they even read their own website.

From "Profiting from Patents":

Having a patent granted provides little assurance that the patent is valid. Patent examiners are time-pressured production line workers; quality control suffers sometimes. Patents are commonly invalidated during litigation. Patent Hawk has personally invalidated well over a dozen patents through prior art search.

From THESE SAME PEOPLE'S response to the editorial:

"Too many patents are issued for "innovations" that are obvious, vague or already in wide use." - On what authority or statistical basis? This ignorant assertion is hoary, with no basis other than anecdotal evidence of patents occasionally being found invalid.

"On what authority"? On their OWN authority! Patents cannot be both "commonly" and "occasionally" invalidated, depending which one's convenient for them at the time!

Finally

[heatdeath]

I'm glad that someone is finally standing up for the horribly broken, outdated patent system.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.

Re:Finally

[ZephyrXero]

Yeah, but isn't this just preaching to the choir by posting on Slashdot? ;)

Re:Finally

[dougmc]

I wonder what it will take to finally get it an overhaul.

If we could somehow blame the 9/11 disaster on the patent system, that might do it. Or at least it might get the current administration to send the military to invade the patent system offices. Let's put `regime change' to work for Good!

But no, an editorial in a big newspaper isn't going to do it. Most people don't care, and there's a lot of powerful people (big companies, lawyers, etc.) who are very interested in making sure that the current system stays in place. But perhaps if people can start attributing the massive increases in costs in healthcare to patent abuse, or how AIDS drugs can't even be afforded by poor countries to help their people, that might be a good start. (And yet pharmacuticals are exactly the sort of things where patents make a lot of sense -- they're not obvious and cost lots of money to research. They're not good examples as /. readers often see them, but they're what the masses will understand.)

Nice to see

[Freaky Spook]

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.

Re:Nice to see

[Shadow Wrought]

Personally, I get a bit worried when a rallying cry from Slashdot is picked up by the Mainstream Media. I just don't trust them to get the actual issues right. Then they fight for the wrong thing and, since they were "victorious," immediately drop all further coverage. And your window of change is out the door faster than a shyster's C&D.

Re:Nice to see

[joe_adk]

It's nice to see decent media starting to report what most people are thinking and saying.

Actually, I think the peoblem is that MOST people aren't thinking about this. It doesn't impact peoples lives in a "missing blond girl" kind of way. They don't know, don't show, or don't care about what goes on in the USPTO.

joe

Patent everything under the sky, or above it....

[penguinoid]

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?

Re:Imperical evidence would suggest otherwise

[Spy der Mann]

Let's not forget about all of the innovation that has occurred under this "flawed" system.

Yeah but what about the unnecessary complications CREATED BY and the innovations HINDERED BY it?

Like *ahem* EOLAS browser plugin patent, *ahem cough* Amazon's one-click buying *cough cough ahem* Linux patent allegations, *cough cough!* blackberry *COUGH COUGH!* lawsuits against farmers for using patented seeds *COUGH! CHOKE *COUGH* SPIT* (oops, is that blood I'm coughing?) *COUGH* Patents on the human genome *COUGH COUGH! *CHOKE* *DIES*

R.I.P. Technological innovation

my experience as a prolific patenter

[Anonymous Coward]

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.

Re:Imperical evidence would suggest otherwise

[Col. Klink (retired)]

Can you give me *one* example of a software innovation that would not have been made if it had not been patentable and has had any significant impact on the WWW? Does Amazon's 1-click patent really make the web better, and would they have not "invented" it if they couldn't get a patent?

I just want one example. Something we all couldn't live without and wouldn't have been invented if the inventor couldn't patent it?

Since the whole point is to encourage innovation, I'd like to see some trace of evidence that it has ever accomplished that. You can't simply say "a lot of stuff has been invented lately" because *all* of it would have been invented anyways.

Re:you overlook some evidence

[AuMatar]

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.

My fav quote from Groklaw...

[marcushnk]

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

Re:you overlook some evidence

[cpt kangarooski]

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.

Re:Yes

[canuck57]

,,,file for obvious patents for the sole purpose of hoping that our competitors will accidentally use this idea in their products.

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.

Re:Imperical evidence would suggest otherwise

[LordLucless]

As I posted on another thread, the patent system was not designed to spur people into inventing. Patents or not, people will always be inventing. The patent system was designed to ensure that the way new inventions work will be available, in the future, for other people to build on.

Say I manage to invent some uber-efficient new power cell. Nobody knows how it works, and because my invention is a non-obvious, opening it up and attempting to reverse engineer it is very difficult.

Without a patent system, I sell these power cells and make lots of money. Then a die, and nobody knows how I did it, and the invention is lost. With a patent system, I sell these power cells and make lots of money for a limited time. During that time, I am secure in the knowledge that even if someone else figures out how I did it, I have an exclusive right to that idea. At the end of the period, my exclusive right is revoked, and everyone can now build new inventions on top of my existing power cell (assuming they didn't licence it off me beforehand).

That is how the patent system is supposed to work. It's sort of like a way of mandating open-source for inventions - we'll give you a guaranteed, limited-time monopoly in exchange for telling us how you did it.

The system falls down when non-obvious ideas are patented. In this case, the "schematics for monopoly" deal is a bad deal - society is not interested in the schematics for an obvious invention because, well, it's obvious. But lately patent offices have been making many, many bad deals on behalf of the public, handing out government-sponsored monopolies like they were candy.

I've digressed a little from what I started writing about, so let me just say it again. The patent system is not designed to somehow encourage invention. Inventors will always invent. The patent system is designed to encourage inventors to divulge internal workings that could not be easily inferred from looking at the invention by someone skilled in that area. With our current level of technical skill and technology, there are very few inventions that could not be reverse engineered. Thus there are very few inventions that give the public a good deal on patents.

alternative is:

[dwandy]

Great Alternative:
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.