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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.
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/
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
Because we've all seen the results that proper examination has given us so far.
-- If it isn't broken, you haven't let my users have a crack at it yet --
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?
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.
..... 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.
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.
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.
"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?
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?
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.