Slashdot Mirror
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."
Patent Hawk Invention Assistance is $125 per hour. Contact Patent Hawk for further details, and to find out whether Patent Hawk can help.
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I'm glad that someone is finally standing up for the horribly broken, outdated patent system.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.
Because you know "Big Patent" is going to condemn itself.
About the Contributers
Peter A. Haas
Peter A. Haas, a registered patent attorney in Portland, Oregon, offers a full line of intellectual property law services, but focuses his practice on patent procurement and infringement opinions. An eight-year career in engineering prior to his entry into the legal profession, Peter understands good project management - a strategy reflected in his own practice - allowing him to offer many services on a fixed-fee arrangement. In addition to serving clients, Peter serves the legal community as an instructor of intellectual property law at Portland Community College.
Intellectual Assets - David McFeeters-Krone
David McFeeters-Krone of Intellectual Assets has an extensive background in patent licensing from working with MIT, NASA, and Intel. Since founding Intellectual Assets, David has provided Intellectual Property strategy services to DoD, NASA, Sharp Technology Ventures, Tektronix, Deloitte, OHSU, Providence Medical Center, PSC Inc., and the National Technology Transfer Center (NTTC). David's projects entail portfolio triage, technology evaluation, licensing and IP process implementation.
Patent Hawk - Gary Odom
Patent Hawk is a patent technical consultancy, serving attorneys, companies, and individual inventors. Patent Hawk services include: prior art search for patentability and patent validity; non-/infringement analysis; technically accurate claim construction; patent valuation and infringement damage assessment; assisting companies and individuals in profiting from their patents; helping companies maximize their patent portfolio by expanding the scope of their inventions; technical assistance in working around patents; mentoring individual inventors in patenting their own inventions.
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
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To the poster:
I have previously patented the right to complain about patents, specifically U.S. patents: I should further inform you that I have already actively started placing patents in other countries as well, regarding this issue.
As you did not pay me to post this message, I do request that you either pull this post or pay me 60% of all profit. If you are not making profit from this post: I will allow you to continue this post, provided you seek monetary compensation and that I get 60% of it, otherwise it must be removed immediately or face legal action.
You have 100 comments in order to respond,
Thank you.
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.
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
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.
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?
Parent is a blatant plagiarist.. See also this other example from earlier today.
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)
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.
"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.
Compare what the article proposes to what it complains about.
The article proposes the following change: if a patent is valid and infringed, there will be no injunction unless the patentholder is using/selling the invention.
But, that change would do nothing to fix the things the article complains about: Too many patents are issued for "innovations" that are obvious, vague or already in wide use. Too many patent holders try to extend their claims to devices and services that weren't even contemplated when the patents were granted. And it's a difficult, costly exercise to overturn a questionable patent after it has been awarded.
So "you have to ask yourself: What does this have to do with this case? Nothing. . . . No! Ladies and gentlemen of this supposed jury, it does NOT MAKE SENSE! If Chewbacca lives on Endor, you must acquit!"
"We reject as false the choice between our safety and our ideals." --The American President (20.1.2009)
RIM has been sued by NTP over patent infringement. A jury agreed that RIM had infringed NTP's patents. A judge is threatening to ban RIM from doing business in the US if they don't settle with NTP very soon. The patent office has issued at least a preliminary revocation of all the NTP patents.
So, there we have it, RIM is expected to pay hundreds of millions of dollars to NTP for patents that the patent office says are bogus. The patent system and the justice system are both broken. Neither encourages innovation. Both make lawyers rich. I chose the wrong profession.
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.
Read the EFF's Fair Use FAQ
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?
1. Create a dictionary of all words used in applying for a patent.
See MPEP 2111.01. In applying for a patent, you may define "giraffe" to mean "flashlight". There are at present few (if any) reasons for doing so, but if you're going to "computerize" the patent prior art search as you have described, there is suddenly an extremely good reason to say "giraffe" when you mean "flashlight".
2. A second dictionary of terms which are equal to each other.
See above. As an aside, maybe a better solution would be a classification system that categorizes patents and patent applications according to the technology involved, regardless of the vocabulary invoked? Such a classification could be performed by humans - maybe even get patent examiners involved. If a certain group gets too large, further subdivide it. Try to keep the groups to about 250 patents if possible. (I've described the system that's been in use for at least 100 years, but seriously, this super-thesaurus idea sounds promising. Except useless because of MPEP 2111.01.)
3b. All entries should be listed (just like with Google) in a descending order of revelance.
This has been available to examiners for years.
4. All applied for patents should be kept on file so they too can be checked against.
This was a great idea when Thomas Jefferson first thought of it.
People may say we can't do this.
Yes, but Thomas Jefferson was a great man, and when the computer technology of 1987 implemented the rest of what you're talking about, those people looked like idiots.
As for graphical pictures showing how something works - it depends.
The entire collection of patents (except the X series that burned) are available in image format to the examiners.
You need the bad patents in there as a way to say "Hey! Here are examples of why you can't have a patent!"
I'm not sure how you define a "bad patent" - that is not an invitation to explain - but regardless, this is an absurdly bad idea. As an alternative, investigate what an SIR is at MPEP 1111
Just my $0.02 worth.
Is there a rebate?
Other responses suggest your whole post is plagarized. If so, I imagine it was -extremely- relavant 15 years ago. I really wish Slashdot had a "What Made You Think You Were Qualified To Post?" moderation.
...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.
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.
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.
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)
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?
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.