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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?"
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!
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.
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.
Bovine excrement! This is a fallacy, it can neither be proven or disproven. Repeat after me; "patents are not a metric for innovation".
Except thats not what is happening... What is ususally labeled a patent troll, is someone who buys up patents with no intention of ever doing anything with the invention covered. The simply sit on the patent until someone invents (and markets and promotes) something (often only vaguely) simmilar and then they sue them. This is basically what is happening in the NTP vs. RIM case. NTP has never used these patens to create a product or invest the money the poor inventor lacked to commercialize his idea. This is a parasitic behaviour at best.
I like your idea.
Its simple, logical and fair; and they are the three reasons why your structure will be difficult to implement in a bureaucratic world. Also, it is very difficult to take a complex system and make it more simple - (Ever increasing entropy).
Step one is the big step in the right direction.
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.
The U.S. patent system is seriously flawed. In my opinion, it's all these vague "business process" patents that have really screwed things up. They get hundreds of thousands of these applications per year clogging up the system, and the net result is that nothing gets done before at least three years, as the article points out.
Even worse is that the business process patents make it nearly impossible to implement anything without violating someone's patent. I looked into patenting an invention that had to do with a linux-powered answering machine and soon discovered that almost everything you can imagine has been patented. Some guy got a patent for "compressing a voice recording". So do I have to ignore his patent and let him sue me, or send him money for something that's a questionable "innovation" at best? Perhaps megacorporations can afford this hassle but not that many individuals, I would think.
The patent system was originally intended to encourage innovation by protecting people's rights to their inventions, and it has now been perverted into a thicket of pointless, indefensible rules that inventors must navigate to get a product out the door.
Probably the solution is to tighten up the definition of an invention and, as so many in this forum and elsewhere have pointed out, invalidate software patents and business process patents. Even Congress is supposedly getting wind of the problem, but I'm not holding my breath until it's solved.
it's = "it is"; its = possessive. E.g., it's flapping its wings.
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?
Toronto-area transit rider? Rate your ride.
"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?
Ask any major company (Like 3M) to sign a NDA and they will refuse. By their logic, they are so big, that someone within the company has done work similar to yours. If they sign the NDA, they will give up the rights to that work...
In that case the patent should not have been approved until the "critical specification" was resolved.
From http://www.uspto.gov/web/offices/pac/doc/general/
'The term "useful" in this connection refers to the condition that the subject matter has a useful purpose and also includes operativeness, that is, a machine which will not operate to perform the intended purpose would not be called useful, and therefore would not be granted a patent.'
Therefore, if it took 30 years to make the thing work then at the end of the 30 years when they had a "useful" invention it should then be patented.
That is part of the problem with the current patent system, not the system itself, the law, or even the legal interpretations, its that its not being applied properly. It seems that many of the patents we see in the news now days surrounded by law suits end up failing the test of useful, non-obvious, or novel, by any sense of these words. But somehow stupidity rules at the patent office and in the courts.
And looking back through history it appears it has never been applied properly so you have cases like Ford vs Seldon, Pavel vs Sony, and all the scum bag leeching we see in the courts today. The system is a failure because those in charge of applying the system have failed.
burnin
Good patents are good... but as TFA says, at least 80% of patents are worthless (too obvious or impractical) and 95% of them are never used - though I suspect these ratios are rising.
I cannot remember ever reading a genuinely innovative and useful patent... all those I have read to date (mostly software and digital system stuff) were either 1) expensive practical jokes, 2) obvious, 3) excessively broad blankets obviously intended for patent warfare or 4) technically interesting but practically useless.
The patent system needs a thorough reform to reduce the number of unnecessary/redundant/parasitic/etc. patents that get granted. Inventing stuff should not require threading through a legal/patent minefield.