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Cutting Through the Patent Thicket
xzvf writes wrote to mention a BusinessWeek article positing that the overgrowth of patents is harmful to innovation. From the article: "The first problem with patents is that the entire process takes too long: three years on average, often as long as five, and getting longer all the time. So when a venture capitalist invests in a company, its IP 'dowry' remains, at best, provisional. How much would you pay for a company when its assets are hidden from view?"
How much would you pay for a company when its assets are hidden from view?
5 bucks and a bag of potato chips. Next question, please.
..BusinessWeek article positing that the overgrowth of patents is harmful to innovation.
I didn't know Captain Obvious worked for Businessweek.
What about software patents? I thought we all loved those :-s
oh riiiiight, we arent multibillionaire software tycoons. Oh well. God bless capitalism.
Viable Slashdot alternatives: https://pipedot.org/ and http://soylentnews.org/
Several years is probably too much, it's true, but it's better than if patents was rushed without proper examination.
I mean... I guess it makes sense. But I don't see how
defending patent = losing customers
[Fuck Beta]
o0t!
In summary...
Patents were great when I was an inventor or researcher. But now that I'm a VC whose job is to takeover companies and screw the inventors out of all the money, patents are a pain. They take too long which is slowing down my screwing, please speed things up...
I think that cuts throught the BS and gets at what he means.
- Adam L. Beberg - The Cosm Project - http://www.mithral.com/
It's not that difficult these days to get VC funding, at least not with this guy around...
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As a teenager, I sat raptly in the U.S. Supreme Court gallery listening to attorneys argue University of Illinois Foundation v. Blonder Tongue Laboratories, a landmark patent-infringement case
you listened to rapty to attorneys in your teenage years? this guy's a sicko, I was doing plenty of strange new things as a teen, including things involving my left hand, then girls (in that order), and also things involving dried fauna and cigarette paper, but certainly not listening raptly to attorneys. Sheesh...
"A door is what a dog is perpetually on the wrong side of" - Ogden Nash
For over 200 years, the U.S. patent system has catalyzed economic growth
It did not, correct statement would be: for over 200 year innovation was able to overcome rotten patent law, but it finally approaches a dead end.
Consider this troll, but the only good that patent system does it makes investment, for those who have money, more appealing, than just sitting on the pile of cache (I would think there are better ways of achieving that
It does not protect the small guy, as it promises. Nowadays, small guy virtually has no chance of success, because of large corporations patenting everything left and right.
From the article:
You smoked dried animals? That is strange. ...
What's it like?
xzvf writes wrote to mention
I thought we were supposed to stop using OldSpeak in 2050.
Perhaps one reason why "obvious" patents sometimes get granted is simple inability by those deciding which patents to let through to judge whether something is obvious. Chances are, they will not have much advanced knowledge in all the thousands of topics on which patents are made, and considering just how many requests they receive, it would be very difficult to consult an expert, and even more so to find such an expert who had no interest in seeking a patent himself. Besides, people reviewing patent requests may well judge simpy by what seems advanced to them, to save time on detailed investigation.
Clearly he could much more easily screw the company's founders if it wasn't for those blasted patents they had already filed.
The more you regulate a company, the worse its products become.
This, in a nutshell, is everything that is wrong with the patent office. Most patents granted are NOT non-obvious. I would suggest that what the patent office needs is a peer-review process.
WTF? While a patent remains hidden, it is a gold mine waiting to be exploited. Why would a VC not pay even more for this free submarining service, the possibilities are endless. If people can read your patent, they may be able to get around it. If they don't know it's there, you can wait .... and sue!
We all know from past posts that all it takes is a few iterations/submissions to get the patent fine tuned and accepted. And it doesn't seem to make much difference whether or not there is prior art, or the idea is obvious.
..... It's also what is allowed to get patented. Consider the whole NTP/RIM debacle. NTP is holding RIM hostage with some (at best) weak patents that exist because someone is allowed to file them. While it is true that their patents are being shot down one after the other, it should never have gotten this far. Clean that up and I think you'll see the question posed by Newsweek become a non-issue.
This is my opinion. To make sure you don't steal it, it's covered by the DMCA.
Bovine excrement! This is a fallacy, it can neither be proven or disproven. Repeat after me; "patents are not a metric for innovation".
I'm not sure how the patent office works now, but here's how I would envision a good patent office:
First, to receive a patent, you have to have a working model that can be shown on demand. Otherwise, we'll keep going on this new path of people patenting something without actually producing anything.
Second, all patents submitted will be checked over by a "Tier 1" employee. The "Tier 1" employees wouldn't have to have vast educational backgrounds; in fact, most would probably be college students working part time. These people would check over the forms and accounts, making sure that all paperwork is properly submitted, legible, and the required amount of money has been paid. If not, they send it back out to be redone.
After Tier 1 has approved a patent for review, it moves on to one of what would be many sections of "Tier 2". The sections would be divided according to industry (automotive, computer (hardware), computer (software), household, argiculture, etc.) and would be headed by those deeply educated in the field, and staffed by those not as educated, but who still have a firm understanding of the subject. An employee in this section would be given just the patent itself and a Potential Patent ID (PPID), and nothing else, to remove both any relationship they may have with the submitter and so they have less bullshit to worry about.
After examining the patent, they will do some quick searches to see if anything similar has been submitted. They won't check entire patent sheets, just the synopsi. If they appear to be the same, the patent would be marked as a potential copy, with the patent already on file that seems to match, and passed along to another section (Tier 2.5), who's only job is to compare the patents and find duplicates. That section would employ those with general educations (jack of all trades, king of none) who would inquire to the original section if they have any questions.
If the patent has no apparent relation to anything else, the regular Tier 2 staff can either accept or require a demonstration, if they thought it was total bubkiss. The patent seeker would have to come in with (or alternatively help arrange to have one of the employees come out to) the device and show that it works, after which it would be accepted.
If it's decided that patent isn't a reproduction, or Tier 2 accepted the patent, the patent would go through final processing (Tier 3), which would double check that everything has been filed and verified, and then grant the patent.
Tier 3 would also handle disputes. They would read over claims, do some basic research, and pass the claims on to Tier 2 for extended review. Tier 3 could also have the option to "contract" educated individuals in the related field to review the patent (used mainly when the section for that industry has a large influx of patents to review.)
Actually, hold off on that first part so I can do a vague patent for anti-gravity or warp drive or something.
Rednecks burn flags. Its a respectful ways to retire a flag as opposed to throwing it in the garbage or whatever when it gets old and torn.
The term "Patent Trolls" ,from the article, is highly inflammatory and counter productive to the argument. These "Trolls" are simply reallocating the risk associated with introducing a new invention to the market. Instead of the single/small inventor bearing the burden of introducing the product to market, the investors share the burden amongst many who are willing to accept the risk. This financial support of the inventor fulfills the purpose and policy of a patent law, namely to "promote the progress of science and useful arts." Small/Single inventors receive a sum of money equivalent to what they believe the inventions is worth, and a more effective marketing team (with the financial resources necessary to be successful) now owns and promotes an invention that would have likely languished in a portfolio because of a lack of exposure to the public.
Eloquent words can mask much mischief. Judge Mayer
After reading the article, I have to say the author has a poor grasp of patents. Yes, he has 70, but by his own admission they were trivial. He's also using terminology loosely. Do numerous patents get granted for trivial stuff? Yes. But the patent office has never been given a narrow definition of novel and non-obvious. Not their fault, talk to congress and the SCOTUS about that.
As far as only granting broad patents, those can be just as trivial as narrow. A broad patent may not have enough details worked out to be useful. I think he was trying to say that only economically important or scientific breakthroughs should be granted patents, everthing else being narrow. Nice idea, but it only works with 20/20 hind sight. Some times it's the guy, 30 years after the first broad patent is filed, that figures out the critical specification to make the whole thing work.
As far as his comments about venture capitalists, so what? If they aren't bright enough to figure out good technology from bad, good patents from bad, that's their own fault. Making it easier for the dumbs ones to become rich isn't very motivating.
So all the article ends up being is the random musings from someone ill informed. Fix the system if you must, but don't listen to this guy.
The world is made by those who show up for the job.
Most companies are honest and will respect a legitimate cease and desist letter. They'll squirm, they'll try to justify not doing it, but if it's a solid claim, they comply. Then they either redesign or license. Yeah, there are weasels that don't, but that's a minority. And they get slapped with triple damages.
At the moment, there is no difference between hardware and software patents. Your code can be infringing even if it's free. And the patent publically publishes 18 months after application, usually well before issuing. Patents are in force for 20 years from date of application. Don't know where you got 7 years dude.
The world is made by those who show up for the job.
Anyone involved in any kind of regulatory behavior is less likely to do his job well if he knows his decisions will be smacked down by a court. One of the reasons the patent office issues so many garbage patents is that the courts have issued decisions that make it hard for them not to do so. The result is that things that would never get a patent thirty years ago now get patents.
Any new legislation has to be so clear that the courts can't tamper with its meaning.
> I think that cuts throught the BS and gets at what he means.
What's the point in spending all your VC money on something you'll never even use? The point was that people only need patents because others have them. If no one had them, they could save millions and not have to worry about someone patenting one-click shopping or holding auctions online before them.
In short, we're wasting money on lawyers so that people won't sue us. Does nothing about that strike you as wrong? Have you any idea what the "broken window fallacy" is, or why this whole charade contributes NOTHING to society, but is rather a drain on it and an utter waste?
Yes, VCs can screw startups over. But they're not protected from that at all by patents. They screw them over via the agreements they sign to get the money. Patents are merely all that's usually left of these startups--something the VCs can sell when the startup tanks.
"Without them it would be nearly impossible for an independent inventor to get a product to market: either everything about your product would have to be secret (giving you a credibility problem), or you would risk that your product ideas would be stolen whenever you gave a sales pitch."
One word: NDA. Give your sales pitch under an NDA. Better still, if its software you can just show the effects of the software without revealing the secret magic inside.
Example, I'm writing a page ranking algo now. I think I have a better way to rank pages. I will explain on my blog the values it would assign to pages compared to Google PR. But I won't explain the algo because I want to use it. Either I'm a genius or an idiot, but you can tell that from the numbers the algo generates, without the need to explain how I do it.
When I started in the Patent Office (This is before it was renamed Patent and Trademark Office), it was common to use this kind of reasoning to make rejections, and you would be sustained if challenged, because this was the "accepted" view by the Board of Appeals and the Court of Customs and Patent Appeals, the judicial appellate court from the Board, at the time (since then merged into the extant Court of Appeals for the Federal Circuit, who follows the CCPA law). Examiners were accorded great respect in making obviousness judgements and in dicussing the prior art references.
But, about the same time, the patent bar started to become more aggressive in challenging these rejections, demanding that the cited prior art show, or, to use current terminology, "suggest" reasons why the cited prior art references "would" be combined. Say, hypothetically, the applicant claimed a light source, a mirror at 45 deg to deflect the beam 90 deg, a modulator modulating the deflected light beam, and a detector to, well, detect the deflected, modulated beam. Now consider some prior art: Firstly, a light source producing a beam going directly to a modulator, thence to a detector and, secondly, a reference showing a mocrowave source sending microwaves to a microwave reflector, followed by a microwave modulator, that then followed by a microwave detector. In the old days you could combine the two references in an obviousness rejection and, for the applicant to overcome the rejection (beyond adding significant limitations to the claim(s)) he would have to provide some convincing argument, perhaps supported by evidence supported by a "132" oath/affidavit, showing why such a derect analogy was incorrect. But this is no longer true; now the burden is on the examiner to provide prior art that specifically shows that optical and microwave elements can have similar designs. Of course, any such reference, if not exactly showing the source, reflector, modulator, detector combination would be attacked as not applicable to that combinatio; of course, if you had such a reference, you'd have an anticipating prior art and would make the stronger "102" rejection in the first place ("anticipation is the epitome of obviousness")
So, why the change? The answer is, basically, the CCPA and its successor, the CAFC. Attorneys kept appealing and winning reversals, and the Court opinions in those cases clearly kept raising the bar on making obviousness rejections. It's not something that, on the surface, is very stark, but it has greatly increased the burden to make each rejection. Now you might have to search twice (yeah, pulled out my butt but probably in the ballpark) as long, even with modern online search technology, to get the prior art needed to support the rejection. Furthermore, you might not find just the exact "teaching" reference to put you over. The result is claims, and applications, go to allowance that would have never made it under the environment that existed years ago. Couple this with extreme PHB management culture that has developed over the past 30+ years and you have the current mess. And, due to the explosion of filings in recent years, even though the examining corps has increased by a factor of 4 or 5 since around 1980 there is still a 3 year pendency in many arts, yet examiners have even less time, due to lots of tasks, many having no positive impact on examination, heaped on top of them, and the fact that the average time allotted to examine an applcation, has not changed since Commissioner C. Marshall Dann gave a whopping one additional hour per application back in the 1970s.
Giving the sales pitch under an NDA does not protect you if the customer has the ability to develop the technology itself. For example, say you wanted to sell your page ranking algorithm to Google -- a patent would still protect you where the NDA didn't. Most tech startups only exist to sell solutions to large tech companies, so this is an important issue.
And if you want your NDA to contain language that gave you the same protection as a patent, then why not go the whole way?
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The non-obviousness clause of american patent law requires that it be non-obvious to someone of normal skill in the art.
Experts don't count, and patent agents are generalists at best, rarely are they an expert in any one area, rather they specialize in several things.
"And if you want your NDA to contain language that gave you the same protection as a patent, then why not go the whole way?"
1. You license the patent to the company via a contract, so the whole way *is* the contract/NDA.
2. You have the NDA *now*, you only *may* have the patent *later*.
3. To patent you have to reveal the secret, not just to the company you want to license to, but all its competitors and foreign competitors too that aren't subject to the limits of the patent in your own country. NDA is better because you only reveal secrets to the interest VC buyer. Limits leakage.
4. In the case of software, even companies subject to the patent may use your algo and you would never know because its not clear from the output of a search engine the algos its using. If it was, we'd have Google new algos sussed by now.
5. Because the patent office issues patents like toilet paper, there may be hundreds of trolls waiting to pounce if they think they can claim infringement by your new algo. By patenting you are giving them the basis for their patent troll.
An alterative to patents? How about nuthin'. ... so I see no reason why patents are or ever were needed to encourage invention. ... so as an inventor, you are reliant on the ability to re-use the ideas that came before yours: patents take away that ability. You can argue that it's temporarily - but let's face it: 20-yrs is 1/2 a (work) lifetime.
Now, I know that on the surface you're not going to like that idea, but here's the deal:
Lots of stuff got invented before patents
All new invention is based on something that existed before. There is nothing new on this planet, just variations, modifications, additions and combinations
Without patents, there are no patent lawyers - you save big on legal.
Without patents, products could get to market 3-5yrs faster, providing revenue streams sooner.
Without patents, consumers would be given more choice, as companies innovate continually to compete, not simply creating one new idea and profiting indefinately.
Lastly, troll/predatory companies can't exist: they can not simply engage in blocking tactics with a legal construct.
So, a world without patents would have an explosion of new ideas, run more efficiently, provide returns on investment sooner, and deliver new products to consumers faster and at a lower cost.
If you think imaginary property and real property are the same, when does your house become public domain?
Almost by definition, the average bureaucrat in the public service has very little skill ... and certainly is not top-tier - else they'd be in the private sector earning 2-10x as much...
Asking the near-dropouts from the class of '76 to peer review new stuff is exactly the problem we have today - the patent office employees can not now, nor can they ever, understand the products they are patenting: and as new stuff gets more complicated it gets exponentially worse, never better.
"These "Trolls" are simply reallocating the risk associated with introducing a new invention to the market."
But a patent troll doesn't make the *thing*, he just makes the patent. The only risk he has is the patent fee. The last thing any of them want to do is risk the cost of actually making something, at best because then you can see their invention and its no longer vague lawyer words in a document. At worst because the invention can't work.
"promote the progress of science and useful arts."
Only if patent writing is an art.
"But this is no longer true; now the burden is on the examiner to provide prior art that specifically shows that optical and microwave elements can have similar designs."
I think some of that comes from WIPO, they worded it so that patents are granted as a right in all fields under the TRIPS agreement. Courts interpreted that as shifting the burden of proof of refusal onto the patent office. But also its the patent office themselves, they pushed for expansion of patents as a means to expanding IP wealth. They're not exactly innocent virgins in this mess.
Even now with all the problems they are causing, the patent office still lobbies for more patents.
"Say I come up with a great tech idea that could make a lot of money. What is to prevent a certain company in Redmond, WA from taking my idea and squeezing me out of the marketplace? At least with the patent, I have legal recourse. Even if I don't have enough money to litigate myself, I have leverage to offer contingency fees, etc."
Nothing, but then you open a coffee shop in the high street, a major StarBucks opens next door, what is to stop them driving you out of the market? Welcome to the world, competition is a good thing. Come up with the next idea and try harder next time to get market traction before the competitors enters, e.g. like Skype, eBay, Google...
The patent is to cover the case where the first entrant into a market pays a high cost that isn't faced by the later copiers, and has insufficient time to recoup that cost, and revealing the product reveals the secrets inside (like a steam engine for example). It's not because you have some moral right to a monopoly on your idea.
Bear in mind in software, they are not copying, they are reinventing, because the software doesn't reveal the algorithms inside in any easy manner.
"In a world without patents, I expect that most innovation would take place within large companies, ".
Why? The big guys can lock you out of even entering the market using patents. Look at how Ericcson locked out Sendo using 11000 GSM patents.
I attended a seminar on patent protection in my field (chemistry). Most of the speakers were patent attorneys. Basically, the overall theme of their presentations was "we can help you hoodwink the patent examiners", basically by flinging lots of overly-broad @#$# against the wall and hoping the over-burdened examiner lets some stick.
While patents are probably a necessary evil, the system does need to be reformed, and far fewer patents need to be granted.
I just got a crazy idea here: perhaps there would be a market for "IP escrow" companies? You want to sell an idea to possibly sinister company A. You present your idea to a trusted company B which hires the best of experts. B tells A what they think your idea is worth, and how it may be applicable to A's business. If A isn't interested, they never get to see the idea. If they are, they have to pay before they can see it. Could it work?
To patent you have to reveal the secret, not just to the company you want to license to, but all its competitors and foreign competitors too that aren't subject to the limits of the patent in your own country.
If you apply for a patent in the United States, Canada, Japan, and Europe (through the European Patent Office), then you have most of the developed world covered. Then you could have imports from a developing country such as China blocked at customs.
This is a nice idea, but I think there would still be problems....
,etc, etc, etc... I'm under the (naieve?) impression that most technological fields were relatively unobstructed by patents until the past 10-20 years... So I think there is a way to survive without relying on them as companies do now...
One thing grad school in ECE is teaching me is that I know and understand very little (compared to how much exists in just that field)... When I attend the huge conferences, I am somewhat familiar with the works presented, but I no capability to fully *understand* their proofs, fully understand their methods (get at their heart), or even compare how novel their approach is compared to existing ones... (At least none of this without **a lot** of extra time studying and researching their work). And I believe my case is a fairly common one.
Now is **any** patent clerk going to spend as much time and energy as a grad student would at this stuff? No computer database can figure this stuff out. A little complex math or use of *interesting* mathematical tricks will likely completely baffle most and they will think it is some amazingly novel or sophisticated work, or so complicated, "it must be novel".
For example, what level clerk would notice these are all the same:
1) Linear Least Squares estimation on Non-Gaussian RV's
2) Minimum Mean-Squared Error on Gaussian RV's
(And there are probably more others)
or what about:
A) Raise-Cosine Pulse Shaping for Pulse-Amplitude Modulation (using polyphase filters)
B) Software-based Variable Phase Interpolation for Synchronization
C) Optimal approximation of a Low-Pass filter in Discrete Time (Optiminal in the MMSE sense)
(Guess what, these are all pretty much the same thing, unless you consider putting peperroni on pizza and putting pepperoni on a sandwich to be two entirely distinct and individually novel concepts)
Now these are really simple concepts... But their descriptions could be made arbitrarily unintelligible with over-use of sub/superscripts,funny letters, etc... And what if they were inside much larger patent applications, for extremely varied purposes, who would realize they were the same???
And if someone patents a generalization of some process/idea/product, then how is the clerk going to realize that a later application is really only a special case of the prior work?
Even today, Engineers are discovering that some of the crazy stuff Mathematicians discovered a few hundred years ago has completely novel applications... And still today, it still happens that groups in entirely different diciplines happen to be working on the same problem as the other, and don't realize it (understandably)...
And how intelligble is the patent application going to be after a lawyer gets to it??
Yes, I realize one can't patent facts, but it looks like the use of facts can be patented as a business process!!! And it looks like algorithms can also.. (which in fields like Signal Processing, are often trivially obvious once some system has been modeled mathematically in a certain way) So even if the math can't be patented, anyone who sees the math often instantly discovers how to implement it... For example, the Fast-Fourier-Transform [decimation in time/freq/etc] )
Even someone with a MS degree in engineering is not going to be able to understand highly technical patents outside their own narrow sub-sub-field... Even different fields/sub-fields have entirelly different vocabularies to describe the same thing...
Yes Innovation is important... But it cannot be a business model in itself... Businesses need to find out how to exist by making high-quality products/services, fast-turnaround-time
Also, patents are killing innovation also by discouraging it (rather than impeding it)... It looks like companies now, instead of maintaining many quality employees for R&D, they prefer to just wait to see which startup does something good and t
Maybe somebody patented the business process for "effective, non-crappy patent system" and the USPTO is just doing their best to avoid getting sued.
The original intent of patents was to get companies to reveal their trade secrets in exchange for a limited monopoly. Like everything in business it is a trade, in this case between the inventor and the people. The inventor recieves the limited monopoly, and the people get detailed instructions on how to reproduce the invention in exchange. If the invention is trivial then the people do not get a fair trade, the monopoly is effectively givenaway for nothing. It seems obvious that for something to be patentable it must have some value as a "secret" - IE if you could not keep the technology in question as a trade-secret, you should not be able to get a patent on it. Independant invention is a sure sign that something is too trivial to be patentable. This leads to the "trade secret test". A patent should only be granted if the technology could be reasonanly kept as a trade secret. On this grounds Coca-Cola could apply for a patent for the "coke secret formula" but Amazon would have been denied the one-click patent, as any web designer could copy the technology after one look at Amazon's website (Amazon would not be able to keep this as a trade secret)...
That might as well say: Most patent exploitation companies exist to exploit patents, so this is an important issue.
The existance of people making money off of something is not a reason to keep a situation in existance if there are other reasons for abandoning it.
Your entire post confirms my point. Without patent protection, if my idea was "worth something", the big company would have no penalty for stealing my idea. Why should I bother spending the time to invent it in the first place, when it is ultimately worth nothing to me? Unlike a musician, I can't make money by giving my inventions away and inventing live in front of an audience.
I reiterate: patents foster innovation by protecting the small inventors, who take the most risks. Most large companies like the status quo and are less likely to develop innovative ideas that could fundamentally change their business.
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For you info, "compressing a voice" is one of those well-researched
and well-patented technical problems of great practical significance.
While most of the patents are for minor improvements, some patents are
for conceptual things like MELP, so your comment about some guy patenting
voice compression (which is actually some partucular way of doing this)
is ignorant at best...
Go do your homework first...
And, YES, if the patent you are talking about is a valid patent, you'd
better ask this guy for a license...
Take Viagra, for example.
Any drug company can easily analyze and replicate the substance, once
it is out and some people start taking it.
So, no patent for Viagra, according to your foolish "test" ?
Go fuck yourself...
I, as well as all other normal people, want to enjoy all new drugs made possible by the strong patent system.