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?"

Comments

And The Answer

[MrNonchalant]

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.

Re:And The Answer

[yog]

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.

You and the captain, make it happen.

[joemawlma]

..BusinessWeek article positing that the overgrowth of patents is harmful to innovation.

I didn't know Captain Obvious worked for Businessweek.

His 4th problem with patents

[TubeSteak]

Fourth, and probably most important, few venture-capital-backed companies will ever dare to defend their IP in court. If they do, they'll risk losing customers and squandering anywhere from $1 million to $5 million of their precious venture funding.

I wonder what he's basing this statement on.

I mean... I guess it makes sense. But I don't see how
defending patent = losing customers

VC-Think

[Duncan3]

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.

Re:VC-Think

[s20451]

Patents really *are* great if, like me, you are a researcher. 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.

I firmly believe that without patent protection, very little innovation would occur at startup companies -- which is a shame, because that is where much innovation and technological risk-taking occurs today.

If anyone can come up with a solution other than patents that protects the small inventor against a big corporation, I'd like to hear it.

It did not !!!

[Anonymous Coward]

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.

The most significant bit of the article

[dillon_rinker]

Frmo the article:

"While at AT&T (T) in the early 1990s, I sponsored two separate ideation sessions around a potential new market, bringing in 50 experts each time to brainstorm for applications. Both groups generated ideas with real commercial value.

Both groups, however, generated more than 95% of the same ideas in common. They were "obvious" in the fullest sense of the word and would have been commercialized with or without the incentive of a patent. But the Patent Office found them "novel," and issued AT&T claims by the basketful."

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.

The problem isn't the speed of patent filings....

[8127972]

..... 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.

False premise

[Anonymous Coward]

For over 200 years, the U.S. patent system has catalyzed economic growth and protected the national interest.

Bovine excrement! This is a fallacy, it can neither be proven or disproven. Repeat after me; "patents are not a metric for innovation".

Poor article

[jbeaupre]

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.

Re:Another foul use of the word "troll"

[nhnfreespirit]

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.

One reason for the current state...

[mavenguy]

...of the US patent system concerns the issue of obviousness, and is illustrated by the following quote from TFA:

And much of what the Patent Office sees as invention is merely science applied to a new field by equation or analogy. At AT&T, we took old microwave patents and filed identical claims on optical inventions, which are also radio waves, only 10,000 times smaller. We were able to do this even though it was obvious to anyone who ever picked up a physics textbook that once you have the ability to make things smaller, the physics just translates over.

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.

Recently

[Ogemaniac]

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.