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The Patent Epidemic
cheesedog writes "BusinessWeek is running an editorial titled The Patent Epidemic, which chronicles not only how abusive and absurd our patent system has become for software and business method patents, but how it hurts even traditionally innovative fields such as the automobile industry. Interesting commentary can be found in the regular places, with Right to Create suggesting action you can take to stem the spread of this epidemic, and Patent Prospector attempting to refute BusinessWeek's arguments."
Yeah I wonder why PatentHawk refutes the allegations, despite them being blatantly obvious...from their site "Patent Hawk facilitates and mentors individual inventors in getting their own patents, as a way of fostering innovation for those interested in learning how to obtain their own patents, and who might not otherwise be able to afford it.
Read more about getting a patent with help from Patent Hawk.
Patent Hawk services are nominally $125 per hour."
If the US patent system is to be defended (can someone do it with a straight face?) then it should be done by someone with some credibility.
I couldn't take anything in the Patent Prospector link seriously after reading that...
When you can't make it through one paragraph before resorting to namecalling,
you must not have a very strong argument to make.
The right to be heard does not automatically include the right to be taken seriously.
They are not the ones, who built the exploitable system. They just use it -- legally.
In Soviet Washington the swamp drains you.
For years I was beaten down for my odd views, but now it seems like I'm just one amongst many, even in the mass media. What the hell is going on here?
it's a distance-from-center issue. 8 years ago, with a president chasing every tail on the hill and the biggest thing in the news being sex and violence on TV, most moderates found themselves to the right of government, and liberty-oriented activism was considered radical-far-left. now, when all the news is on domestic surveillance, republican dominance, and DRM, moderates find common ground with anarcaps. the point: enjoy the next decade - you'll be called crazy again in the twenties.
The problem with patents is not that they are being granted at all, as some intellectual anarchists would have you believe, it is that they are being granted for entirely obvious "inventions" that are not really inventions at all. I will not bother to list them, one only has to look into the portfolio of a Jeff Bezos to see that these things are not being reviewed for prior art, orginality or utility, but are instead being rubber-stamped by reviewers more intent on clearing their desk than doing their jobs. Even when they try to do their jobs, rarely does it seem that they know what they are looking at, and rarely do they reject anything for being an entirely obvious application.
Until such time that patents are made more valuable by requiring an invention to be truly unique, the problem of patents being used predatorily to stifle competition will continue. This will take a sea change in Congress, and will be fought tooth and nail by the large corporations with large patent portfolios. They'll naturally claim that each and every patent is indeed a wonderful thing and that each and every patent that they hold should be upheld.
The only thing I can see coming of this is another windfall for lawyers who'll end up battling this out in the courts, one way or the other. It may sound pessimistic, but the truth is that the people and fairness will lose out in the long run.
I think the simple solution is to employ some form of litmus test when a person applies for a patent.
The test I would suggest is as follows:
"If the innovation in question can be duplicated by an individual, or a group of individuals with limited time, resources, and money, then the innovation in question cannot be patented. Period!" If I can create the same technology in my garage over the weekend, there is no reason why I should have to pay royalties or licensing to implement the technology.
Patents should apply to technology that requires years of research and/or lots of money and/or lots of people to develop (i.e. when there is definite financial risk to a company doing the R&D but unable to recover if the patent isn't awarded). I simply can't understand how a patent for putting a hyperlink in a web page or a special button on a device has the same legal standing as developing a hybrid car engine or a new innovative propulsion system that will take us out of the solar system, i.e. REAL INNOVATION!
Another aspect of the patent litmus test is to question whether the patent is ACTUALLY a unique innovation, or whether countless other people have the same idea and simply don't have the resources or time to go through the patent process. What right does someone with a high priced team of shysters have over winning a patent over a thousand other shmoes that wake up one day with the same idea but without the resources to make the patent happen. These days, patents are nothing more then a race to see who among hundreds or even thousands can cut through the red tape quickly enough.
Also, why not insist that if the innovation has merit to benefit mankind, then the patent will only be awarded if it becomes public domain. I.e. a process to create medicine to save the world from AIDS or Cancer cannot be licensed or impose royalties on to those companies willing to make the product a reality. This will separate those looking to profit from the suffering of mankind to those people looking only to make a quick buck squating on some new web idea.
Finally, a patent should only be awarded to a company or individual willing to make the innovation a reality. There are lots of companies being established that simply buy ideas off of the average joe or create think tanks and finance the patent into existence without EVER desiring to actual create the innovation or product in question. They instead rely on greedy licensing fees, or sit on the patent waiting for that fateful time when some other company actually creates a product that patent might infringe on, even if it has nothing to do with the original patent purpose, and sue the pants off that company.
In all honesty, the whole patent process is out to lunch, allowing of millions of meaningless and trifling ideas to become legally binding innovations when they can either be easily duplicated or are thought up by thousands of other people.
Someone should patent the patent process, this will end this stupid industry once and for all.
I haven't thought of anything clever to put here, but then again most of you haven't either.
Well, while the above links may prove humorous, keep in mind that this does not in anyway speak poorly about the patent system. The issue with patents is not that stupid things are patented, but that patents are being thrown around on obvious inventions/methods.
All of the patents on patentsilly are quite silly. However, they are valid patents. There is a HUGE difference between silly patents and absurd patents. A patent on a glove that chews your food for you is silly. A patent on a 'review system allowing consumers that purchased the item to review it for the public' is an absurd patent.
If you think about it, a patent on a roller skate where the 4 wheels are placed inline seems quite silly. However, the inline skate is born and people are roller blading everywhere.
I don't need to propose anything, really, because my "dream" utopia is coming to fruition with almost NO need for me. I look at the Internet and see anarchy at work. Sure, many governments are trying to find ways to control the web, and megacorporations are, as well, but in the end the individual is finding just as much strength as everyone else. Do I fear Google or MS or Yahoo could take over at any minute? No, because anyone else can come up with a better product and get it in motion if the market wants it.
eBay is a great example of anarchy in motion -- it isn't chaotic or nihilistic at all, it is two people with needs trading with one another and both parties profiting from the trade. Sure, eBay may rely still on some legal procedures, but they're connecting people in different countries with different laws and the process mostly works. The same is true of the blogs out there: how many bloggers include copyright symbols on their blogs? Quoting, sharing, linking -- it all works to get information out there in a controlled anarchy -- controlled by the market, not by the government.
The only way I see anything falling apart is if the Internet gets regulated more, or if central authorities find a way to control it. I don't see that happening, especially with the anarchy of BitTorrent and AIM and other systems that provide for competitors to come in and give them a run for their money.
Who exactly is going to spend billions on cancer research if they have no market share following their discovery of the cure?
There's humanity in a nutshell for you. If reading that doesn't make you sick, then I feel very, very sorry for you.
"So are you suggesting no change at all, or are you suggesting we get rid of the patent system altogether?"
Isn't this a false choice? I mean, the solution isn't limited to: (a) do nothing (b) get rid of patents.
It could be something as simple as:
Roll patent laws back to about 1960. Software is not patentable, regardless of the medium that it's fixed in. Business methods are not patentable, regardless of the medium that it's used or fixed in.
I think that solves the problem nicely. And if I've missed something, I'll add another sentence or two.
You were mistaken. Which is odd, since memory shouldn't be a problem for you
All true a decade ago. Today, though, you aren't going to be sued by someone who makes something. You're going to be sued by a patent holding firm whose only "product" is patent litigation. What good is your patent portfolio when your opponent doesn't make anything that could infringe on your patents? You can't horse-trade when you don't have anything the other guy wants (except money).
As far as protecting intellectual property goes, again most of the problem patents these days are of the "Balance your checkbook using exactly the same procedure used by millions of housewives for decades, but LETTING A COMPUTER PERFORM THE STEPS!" sort. That kind of "intellectual property" doesn't need or deserve protection.
The problem with the current patent system is that it was made with the idea that the economy would be a craft/agrarian economy forever (when the patent system was invented so that craft makers could protect their inventions). In our main economy, the world has moved from agrarian, to a craft economy, to an industrial economy, to the modern design economy. At each stage the lower stages become streamlined and mechanized so that few people are needed at the lower levels. An agrarian economy falls to mechanized farming, a craft economy falls to the assembly line, and an industrial economy falls to robotic manufacture, or a highly mechanized assembly line. In essence, the western world is in a design economy, but mechanized fabrication is not well utilized thanks to extremely cheap foreign labor. At any rate, even without foreign labor, robotic manufacturing would have pushed us to a design economy by now, but now since ever larger teams of highly trained people are designing each new product to be manufactured, the patent system has now become an impediment to the moving forward of the new design economy. The main goal behind economic laws are to make sure that proper protections are given to people who contribute to the economy so more people contribute. A proper reform would be to do away with the patent system, and slightly expand the copywright system to make sure that designs can be copywrighted in their totality, but not tiny, minor, broad mechanisms.
"Scientists don't change their minds, they just die." -- Max Planck
How are software patents radically different?
;)
I'll see your question with another: How does a patent on the FAT filesystems promote the sciences or arts? FAT was patented until just a couple of years ago when Microsoft threatened some camera/flash makers with licensing fees, and the camera makers fought back. Even had the filesystem not be copied practically verabatim from a textbook (which resulted in it being overturned), is a 20 year old filesystem patent promoting anything?
In the general sense, what case can you make for 20 year patents to promote any innovation when said innovation is "old hat" in a year or less? By itself, this would not be such a critical issue: Microsoft could claim they are using the revenues from older patents to develop new innovations. But, with the emergence of the "patent trolls", technologies are being locked up in such a way further innovation is either impossible or just very expensive. What reason would a researcher have to develop better AI, when he or she has to pay $50,000 to one patent holder for the operation of a dual-layer neural network, $2000 to another for a method by which a computer can identify an object in an image, $8000 to yet another for a method by which a computer can identify multiple objects in an image, and so on (these are merely examples, though computer vision techniques probably are patented). Worse, should researchers shell out the dough, they do not receive a dual-layer neural network or a computer vision implementation, no, they merely receive permission to use one, should they manage to come up with one.
(as an aside, this alone makes "idea" patents radically different than historical ones: should someone license a mechanical patent, the patent itself was the implementation, one would simply refer to the diagrams within, where the inventor had already done the design work.)
Worse still is the next level: If the researchers invent a brand new beast that performs the same function as a two-layer neural network, but in a different way (perhaps better... say twice as fast), the patent holder will still have them put up against the wall, because unlike a machine where one can easily disassemble it to see how it works, compiled software is a nice black box. So the patent holder sues the researchers, and the researchers are forced to choose: lose, settle, or release the source code to the software so that they can prove that they have in fact created something new. You can bet that should they do the latter, the patent holder's next version of their software (assuming it's not just a "troll") will "mysteriously" be twice as fast as the previous. Of course, should the researcher be with a large company, their lawyers will probably deal with the other company's lawyers and iron that out, but if you're working on your PhD and living off your stipend, what are you going to do when someone at your thesis defense points out that FooCorp just released a product just like the research you were doing?
Now, as for extending that to proof of unconstituionality, that I'll leave to the original grandparent