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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."
I agree. It has becomming horrible... where I worked up until last summer, we were actually paid a bonus of approximately $1000 to file for obvious patents for the sole purpose of hoping that our competitors will accidentally use this idea in their products. Though those were stupid, I would have to say that the record goes to this: http://patft.uspto.gov/netacgi/nph-Parser?patentnu mber=4,022,227
46487 466780 252994 376409 96920 39622 205366 244315 622115 512361 668040 63608 259203 955314 811176 652718 166330 23922
Well here is just a question for my fellow techies who probably recognize that making a startup and selling it would be a better life than that of a salary man. How is our perception of the patent system affecting our plans for possible startups? Does the state of the patent system frighten you away from entrepreneurial ventures, or do you just plan to keep things closed source and ignore patent laws? Or would you try to stay out of the radar and get acquired before anyone with a patent portfolio came for a shakedown?
The late 90s were really fun, I'd like to see that entrepreneurial vibrance happen again, especially because it was fun for the nerds and irksome for the old guard, but I'm worried that perhaps the legal overhead is discouraging a lot of creative and competent people.
From TFA:
Besides, the near-automatic granting of injunctions can lead to the absurd result of a company being forced to pay royalties to license patents later found to be invalid.
Easy enough to solve-require the holder of any patent later found invalid, or who charges licensing fees for something later ruled not to come under the scope of the patent, to pay back triple such fees and/or court awards they won from the invalid patent or improper use of it. You'll see a lot more caution in patent filings, and a lot more willingness to back down on questionable or obviously invalid stretches.
To fight the war on terror, stop being afraid.
Many of the problems with the current patent system go to the fact that you can now patent things that can't be represented as physical devices. Reinstating the requirement that all patents are accompanied by a detailed description of a physical device would remove all the absurd business concept patents, as well as many unreasonable types of software patents.
h tml/srchnum.htm&Sect1=PTO1&Sect2=HITOFF&p=1&r=1&l= 50&f=G&d=PALL&s1=4803736.WKU.&OS=PN/4803736&RS=PN/ 4803736).
Before you scream that novel and non-trivial algorithms wouldn't be patenable (like, for example, a new algorithm for encoding images etc), all algorithms can be represented by specifically designed analog or digital electronics (example of a non-trivial algorithm that can also be represented by a physical device: http://patft.uspto.gov/netacgi/nph-Parser?u=/neta
Things that require code, like hyper-links, one click web ordering, and other patents that most people consider ridiculous would still be protected by copyright on the code... and last time I checked MS, Oracle, Sun, IBM, Apple etc.. didn't have all that much trouble protecting their intellectual property as start-ups without software patents.
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, without requiring a massive paradigm change for what patents are supposed to protect (this isn't to say that I'm not in favor a more rational system for challenging a patent, especially for prior art issues, but reform tends to move in baby-steps)
"How else do high-tech products keep improving other than by continual innovation meriting patent protection?!" - Patent Half
I think all patents do is grant a temporary control over a certain field of creation. If we were to eliminate or limit patents then that means in order to be #1 seller, your product has to be the best and decently priced. Of course, there's also marketing in there but that's a whole other subject.
What I'm trying to say is that Company A makes zig, Company B makes ziglar, a remarkably similar product which may be cheaper and maybe even better. If it's better and cheaper, then hey! How does Company A keep up? They make Zigziglar.
Of course there would need to be some restrictions, but nothing so bizarre as what we have today. This could, of course, be achieved through a more human process than just filling out forms and wording everything a certain way as to persuade different people. But hey, what do I know? I'm not an economist, professional engineer, or a marketer.
$fortune
Tomorrow has been canceled due to lack of interest.
Hence, it's just like our good-ol politicians leaving service for some dinky, high-paying lobby job and then exploiting the system since they've worked both sides. It's sad that you'll only see 10% progress from 100% effort, where 90% goes in the pocket of the ex-govvy. What a racket.
I've been in the brand spanking new complex. It's nice, looks like lots of money when into those buildings, though the commissary is crap (then again, old town's a step away for nice $$ lunches). Aside from serving political agendas set by politicians, they have one goal: make money and lots of it--sort of like the rest of government nowadays. Where do those profits go? Now that's what the tax payer should be asking!
Agencies that run this way always remind me that we are currently under another form of government than your ideological democracy
So much for serving the public good.
The parent post is probably correct in its description of the process, but there's reason to believe that this system is not "fundamentally and deeply flawed".
Consider that the patent office received 406,302 patent applications in FY2005 ( http://www.uspto.gov/ ). It would be horribly *inefficient* to evaluate each of those applications thoroughly, especially because the vast majority of those patents are without value and will never be heard of again. What you really need is a system that somehow *selects* valuable patents, and subjects *only those valuable patents* to scrutiny.
The process where the USPTO first rejects an application, then eventually accepts it if you spend the money and persist is one way for the system to select valuable patents: applicants will only spend time and money on multiple resubmissions in proportion to the value they place on the patent.
The fact that patents can be challenged in court is another way the system selects valuable patents: useless patents are never challenged, while those with value will be challenged and carefully scrutinized by a court.
The patent system isn't perfect, but all serious reform proposals, e.g. third party pre-grant challenges, take this selection idea into account.
Imposing Libertarian views on everyone online since 1992.
What would happen if all patents were reviewed in a peer-review fashion, similar to academic scientific articles?
Each patent would be sent to 3-4 reviewers who are knowledgable about the specific field. The reviewers describe the novelty of the patent (or lack of), but must cite sources to reject the patent as not new.
The USPTO examiners then act as judges, read the reviews, perform their own research using the sources given to them by the reviewers, and finally making a judgement.
That way, the examiners get both the knowledge of the "experts" and also the final call on new/not new.
If you think the reviewers of the patent will try to nullify the patent and patent the idea themselves, then there's many safeguards to prevent that from happening. Reviewers would not be able to patent the same idea (of course). Reviewers would be required to prevent evidence of any prior work. The names of reviewers would stay on public record just in case the reviewers decide to infringe on the patent and later get sued for infringement.
Do you think it would work?
Favorite
...but despite of the system.
It is part of our lives to have to find solutions for the problems we face. Many times, the solution is just the application of knowledge we have previously acquired (through education, experience). Sometimes we just buy a product that does what we need. But often you need to come up with a solution by going through a creative thinking process. In that case, chances are someone has gone through the same problem and solved it in a similar way, but in most cases this will be very hard (if not impossible) to find out, even if there is a public database containing all the ideas someone currently owns.
Why is the other person more entitled to use the idea than you? You went exactly through the same trouble! Why do you have to pay or find an alternative way of solving the problem you already solved?
I don't think that there will ever be a sane patent system. In that case, I would rather live in a world with no concept of intellectual property (even acknowledging that in some fewer cases that may be unfair to the original inventor) than the mess we are now.
The vast, vast majority of software patents I've seen don't need a Ph.D. to understand -- any difficulty in understanding comes only from the legalese they are written in. Moreover, very few software patent inventors actually have Ph.D.s. Most patents are not on some arcane variation of a data compression algorithm, but some basic user interface feature written by a couple of engineers at Adobe or IBM who got their bachelor's at a state university. (Remember the "Progress Bar" patent?) I should point out, also, that many entrepreneurs like "the boys" at Google, Yahoo!'s founders, and of course Bill Gates dropped out of their programs.
I'm going to assume that you have a Ph.D., and it is your belief that no mere mortal without those letters after his or her name can understand the "cutting-edge" research you are doing. I'm going to go out on a limb and say that you think that the reason that "obvious" patents are getting issued is that that the patent examiners are too uneducated to know if something is obvious. In fact that's not right as a legal matter. The obviousness standard almost requires the suggestion to be found in the literature; patent examiners (and judges) are not permitted anymore to simply say that an idea looks obvious and reject the patent.
Biotech patents, on the other hand, are often written by patent agents and lawyers with Ph.D.s, reflecting the higher level of knowledge required in practice. And while software patents can usually be had for under $10k, a biotech patent usually runs $50k. The only time Ph.D.s get involved in a software patent dispute is usually at trial, when some security-camera company claims that their patent covers computer network firewalls and the law firm has to hire a professor to tell the judge and the jury that the plaintiff is full of shit.
With great power comes great fan noise.
From TFA: A federal judge may reinstate the injunction he granted against RIM for violating NTP's patents even though the Patent Office, which is reexamining the patents, has issued preliminary findings that all five are invalid.
Even though the patent office itself has declared that the patents may not pass muster some appointed-for-life judge is prepared to make a ruling worthing hundreds of millions to billions of dollars based more on the arguments of lawyers rather than the actual facts or the law.
From your comments: POPA, the examiner's union. That says it all. Government employees shouldn't be allowed to unionize - unions cost taxpayers excessive quantities of money and further eliminate any semblance of personal responsibility or honest accountability on the part of people who are pretty much guaranteed jobs for life with little risk of accounting for their screwups.
(Since I've already mentioned unions and undoubtedly ticked off lots of people I think it only fair to point out that I am not opposed to unions in general - in a free market I think people should be allowed to organize themselves into the Teamsters, the UAW, the CAW or pretty much any other group they want to. I object only to AFSCME, SEIU, POPA and similar unions that actively declare that public service jobs serve the public only as an afterthought. At the very least I want them to engage in competitive bidding every other year just to make sure that the taxpayers - who either pay those union salaries, meekly go to jail or are killed resisting - are getting an honest product and their money's worth.)
If the g'vt kept the data on you that google does you'd better believe you'd be calling it "doing evil"
One thing I hope the Patent Office will one day do is return the requirement of a working prototype. The trick is in forcing the patent requestor to store the prototype and giving the patent office the right to inspect it at short notice, 1-2 weeks. This is primarily during the application stage.
This should stop at least some junk patents, where someone has thought of a great idea but cannot build it. If you add in fines for failing to have a prototype on demand then you can start reducing the rates of junk filing. If they cannot pay the fines you can then take away their other patents simply by adding the fine to patent renewal fee notices and taking the fine portion out first.
This should help small inventors as they have to store very little compared to large patent hording companies.
37 - what does it stand for really...
1. They do. They create a database entry that is stripped of all words like "the" or "and", and this is indexed by the main search engines, EAST and WEST. This covers the abstract, claims, specifications, everything relevent.
2. Done. It's on NORTH, and it's also done internally by the majority of workgroups. They are called synonyms. There is no _good_ automatic way to do it.
3. Yeah, we do that to. It's called a PLUS search, and it compares the distilled word list generated at step 1 to the word lists of all other patents. It's generally not as useful as you might think, and class searching and keyword searches are much more fruitful.
3a. The PLUS search is not constrained by classes/subclasses.
3b. You end up having to pick a threshold, ie "let me see the 200 most relevent", then you can browse the contents of that set.
4. Yep, we do.
Every patent discussion on here puts me off of Slashdot, and reminds me to take everything read with a grain of salt. The patent examiners fight two battles: meet production, don't allow anything that makes the front page of slashdot.
Yes, the managers warn us about you.
It's called payment for service. It works perfectly well and requires only limited government enforcement.
If you can't convince somebody to pay you a certain amount for an idea, then it wasn't really worth what you thought it was. That's the nature of a free market. Expecting to get paid more than what people are willing pay, or to keep control over the idea after revealing it, is greed and arrogance in action, respectively.
Ok, unless you have some special powers the rest of us don't, you don't know this as a fact. The current set of patent holders would like to convince everyone (and it's been quite successful) that w/o protections no one would invent.
As I pointed out earlier, for this to be true there could be no invention that predated protections.
Reality #1: Drug companies make billions of dollars of profits. I'm not opposed to profits - that is what companies do, but the patent protection is giving them monopoly profits. Them there monopoly profits are much bigger than those that people can earn in a competative market place. Where do you think those profits come from? Does that help or hurt your personal bottom line as a consumer? Patents are (if anything) anti-capitalistic, not pro-capitalistic.
Reality #2: For some reason Bayer continues to be able to sell 'Aspirin' right along side 'ASA' (here in Canada the trademark is valid), and for some reason, even though the cheaper house-brand sits right next to it on the shelf, people still shell out for the brand name... weird, huh? This tells me, that the 'inventor' even w/o protections can somehow still compete and make a profit...
What all this tells me is that there is still nothing that conclusively convinces me that the protections are needed. It's just middlemen fearmongering; telling you that the human spirit is somehow tied to their profits...of course their pitch is a little more slick than how I just said it.
If you think imaginary property and real property are the same, when does your house become public domain?