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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."
A few weeks ago I received an e-mail from a slashdot reader asking me if I'm behind a "libertarian" conspiracy on slashdot. I brought it up at an anarchocapitalist meeting I had at my place in the middle of December, and the AnarCaps generally laughed -- none of them have the time or the drive to back up my posts with positive moderation.
Now I'm seeing similar "libertarian" pushes at various newspapers and even noted on my local TV morning news (Chicago's WGN9 news team, hilarious people) a more freedom-loving perspective on some of their opinion pieces.
It confuses me -- as a freedom lover, I'm known to promote my views heavily one very blog and forum I'm on. 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?
On topic: all the links provide interesting viewpoints on the problems with patents (and copyright and trademark and all that). The downside to the articles is that the recommended changes require MORE laws and MORE government intrusion rather than less. Does anyone really think that the same coercive laws can really be fixed with more coercive laws? Will we see laws "protecting" freedoms by taking them away?
This is akin to "New study shows Microsoft Windows to be faster, more secure than Linux" by the independent outfit Tfosorcim Corp.
Excuse my speling.
Making The Bar Project
In order for a patent to be valid, the entity (person or company) owning the patent must produce at least one (1) working, real, physical example of whatever it is that they are patenting. Otherwise, the product/concept/business process/whatever else we've decided is patentable this week is subject to invalidation if someone else can produce a working example first. This would completely eliminate "patent trolls" and would provide a much larger incentive for entities seeking patents to bring their ideas/concepts/products to market more quickly.
Fight psychopharmacological mccarthyism. http://www.norml.org/
SlashDot recently covered another BusinessWeek opinion piece entitled "Cutting Through the Patent Thicket", which argued that "the current U.S. system is harming innovation. A simplified process with stronger patents would encourage economic growth".
With spending like this, exactly what are "conservatives" conserving?
So are you suggesting no change at all, or are you suggesting we get rid of the patent system altogether?
If you are sympathetic to the idea of abolishing patents and you live on this planet, the best you can hope for is gradual change towards weakening the power of patent monopolies. Only by performing the experiment of reducing patent force can our society begin to see the benefits of less government interference in essential human rights, such as the right to build stuff and the right to create new things -- rights that patent monopolies prevent you from doing.
So I guess what I'm saying is, instead of pooh-pooing meaningful patent reform, you should be supporting it. Unless, of course, you are advocating sitting on our hands and letting the IP-maximalists continue to increase and concentrate their power.
16 year old kid invents 2 cool things, takes them to 2 companies for good-faith reviews. both are patented by the companies within a month and are never commercially marketed.
just one of many seedy things i've heard patents being used for. of course the situation is different, but it leads to the same result... stunted innovation.
Bury me in mashed potatoes.
What I think is needed is a concerted (Concerted: Unity achieved by mutual communication of views, ideas, and opinions ) movement of noncooperation with the software patent system. We must make the software without regard to the patent laws surrounding it.
We must refuse to pay the fines when taken to court if it comes to it.
If they put software developers in jail for this, the outrage would be huge, I don't think it would ever come to this, though I can't be sure. The system is unjust and we must make that so visible in our noncooperation with it, that they have no choice but to change or abolish these laws.
PS: Abolishing software patent law does not affect the GPL or other free-software licenses, these you copyright law, not patent law.
Q) What do patent lawyers and terrorists have in common?
A) The more fear, uncertainty, and doubt they spread...the better they do.
Most software patent claims are defensive. They are made in anticipation of being sued at some future date over an implemented algorithm. If companies had reassurance that such a thing was impossible they wouldn't be making the patent claims...and a lot of lawyers would be out of work. It's a very old form of racketeering. You have to pay for 'protection' from other organized criminals by hiring your own organized criminal to prepare your defence. Of course, as most of us know 99% of these so-called "software patents" can be found in introductory computer science textbooks...and of course, only the organized criminals (IP laywers) benefit from this process.
So, just like terrorists...the lawyers have snuck their way in and they are hijacking our industry. The apathy, ignorance, and lack of perception at the higher levels of government have allowed it to happen. Then again, when the majority of legislators are themselves lawyers it's not hard to see the cronyism in action.
Al Gore spent 25+ years of his life championing freedom of information, accessibility, using the internet to lower barriers of entry and to disempower corrupt structures like gangs of wrongful IP prosecutors turning a buck through the patent system...sadly > 50% of the voting american public didn't consider these freedoms a priority in 2000.
Software patents are a scandal, and they won't go away as long as the political failings underneath them are ignored.
The government has a defect: it's potentially democratic. Corporations have no defect: they're pure tyrannies. -Chomsky
I've seen this critique of the PTO growing from multiple directions. What bothers me is that it's all too easy to find the bad patents we can all laugh at. If we need non-obvious, and non-trivial, and truly unique patents, how about if someone provides a few examples they judget to be just so? I don't want to hear of Patent XX which is bad. I want you to point out a half dozen patents that you think DO meet an acceptable standard of non-obvious.
Instead of taking the cheap shot saying what has not met standard, how about the harder job of truly judging what non-obvious looks like and put it out on the table for people to learn from?
I think it's the patent systems fault because it explicitly allows the abuse of the system. There is absolutely no oversight on what gets patented and what not, it's *WAY* too easy to get a patent on something frivolous, it should not be possible to get something patented without actual development and the presentation of a working device. Business methods and software should NOT be patentable at all, or only for an extremely short period.
The sort of people I worked (not WORK, I've been self employed for quite a while now) would do just about anything to make a buck, I was fairly young, fairly naive but I got wise and split with them and their ways.
Taking your 'idea' and underselling you is not the kind of abuse I was talking about. I'm specifically referring to submarine patents and patenting stuff with no intention whatsoever of ever marketing the device (or even developing a working prototype).
The kind of protection that is needed would push the cost of a patent up quite high, but in my opinion that would be a good thing. It would be an initial barrier that would get people (and especially the corporations that take out hundreds of patents annually) to pay attention to the filing process and the requirements. It would also make sure that you only patent those things that you actually intend to spend development capital on.
If it's 'just a good idea' you should not be able to patent it at all.
If it took you hundreds of hours of sweat and labour and mortgaging your house to research your idea your patent should be a solid one.
Right now a patent is just another gun in the armory of larger corps. As a small time inventor you will probably not have the stamina and the funds it will take to defend your patent, and as a larger corp you can use the patent system to beat up competitors smaller than you.
MP3 Search Engine
1 - Make patents like trademarks, they have to be actively used and defended. This means that a patent holder must actively be engaged in the manufacture or production of the patented item (or at least show demonstrable intent to do so - like arranging funding to build a factory). That would effectively end the "patent troll" business model of being in business to only licence patents. If the holder is "too small" to own the factory individually himself ,then he can be a principle of the corporation or business that does.
2- If not ending software patents altogather, limit them to 5 years. Five years is practically forever in the software market. (perhaps they should do this with software copyrights too)
3- Because patents (and IP generally) are the work of the human mind, make patent ownership non-transferable and limited to the private individual who actually used his mind to invent it. No corporate ownership allowed.(Oh? You say that IBM funded the lab and not the indivdual inventor? IBM paid his salary? Well, then IBM can contract with the inventor to have a favorable or royalty-free license.) Corporations would be able to license, but never own. Provision can be made for joint ownersship in small limited partnerships when more than one person collaberated.
4 - Elminate method patents completely. If a method is secret, then it is already protected as a "trade secret".
Imagine creating a Prior Art section in Slashdot.
One or two articles per day is posted describing in English (not USPTO-ease) a software patent being applied for.
Obama's legacy: (N)othing (S)ecure (A)nywhere and (T)error (S)imulation (A)dministration
> Sounds corny, but consider this - when Kodak tried to get into the instant film business
> to compete against Polaroid, Polaroid took them to court for patent infringement. Kodak had
> nothing with which to horse trade, and Polaroid refused to negotiate - they drove them out
> of the market. This after Kodak had invested millions in new plants and employees.
> You never want to get caught with no bargaining chips at the patent negotation table.
O.K., but the patent system initially was not installed to protect polaroids stream of revenue, but for the "furtherance of arts and sciences", or some such, I do not recall the exact wording.
The general idea was that e.g. polaroids founder would not have spent a lot of resources to develop the instant film process if he couldnt have been sure to reap the potential rewards of that risky development because of patent protection.
This may or may not have been the case.
On the other hand, during the last quarter of the 20th century, it was obvious to even the most casual observer, that polaroids
a) sucked
b) were a ripoff
Therefore, Kodak with its vast technological resources entering the field as a fierce competitor, might have really "advanced the arts and sciences" in the instant film business.
Furthermore, with Polaroid and Kodak more or less monopolizing the "instant" and "chemical" film business, respectively, in the US and other parts of the world, they arguably spend most of their resources fortifying their business by protecting it with patents, but did not pay enough attention to other emerging fields like digital cameras. (in fact, Kodak was and still is working on digital camera technology, but IMO not with enough vigour)
As a result, Polaroid collapsed a few years ago, and Kodak is only a shadow of its former self.
As for the Jobs of engineers like you, all at Polaroid and most at Kodak were destroyed.
The (now almost entirely digital) camera business is now largely owned by companies in the far east that innovated rather than rest on their patent cushion.
Therefore, in my view, the "instant film" example is an argument that, for the "furtherance of arts and sciences", as well as for the jobs of their citizens, governments around the world should abolish patents, or at least heavily restrict them to real technological breakthroughs.
I think that some parts of the industries in western countries, and especially those that look beyound the next quarterly conference call, begin to understand this.
If you take a highly innovative and fiercely competitive industry like semiconductor design and manufacturing, you will notice that the largest part of the expenditures are equipment and tools.
An SDRAM is a fairly simple device, compared to the equipment used to manufacture it.
If a company A builds a fab in the US, it can be sued by a competitor B about the alleged patent-infringing way it aligns the masks. A preliminary injunction could shut down the 2 billion dollar factor for a year, rendering it worthless.
In china, a local judge would never shut a local manufacturer Cs factory down for patent infringement.
Since the chips eventually imported by C from China into the US do not contain parts of the "mask aligning process", competitor B can not do anything about them.
However, A and B still pay hordes of patent lawyers to file "offensive" and "defensive" mask alignment process patents, and their engineers spend significant portions of their time checking and circumventing more or less trivial patents.
After a few years, A and B cannot compete any longer against C, they "deinvest", lay off the bulk of their workforce, and their remaining managers begin to harass the few remaining domestic competitors in bordering fields with the rest of their "valuable patent portfolio".
If you want to save domestic jobs in the long term, the patent nonsense must be stopped immediately.
>My thought is that if A wants to come up with the idea and then sit
>and wait for some B to come up with it independently and do the hard
>work of turning the idea into a product, A doesn't deserve a slice of
>B's hard work just for being lazy. Now, if A's shopping it around to
>people who can actually produce it, that's another matter, but these
>patent holding companies don't put any effort of their own in, they
>just wait for someone else to expend the effort and then demand a
>slice of the profit. That's not the way to create an incentive
>for anyone else to do anything new.
Why not? How do you think the patent holding companies got the patents they are holding? Answer: They paid someone for their ideas. There's the incentive. Or, they developed the ideas themselves, and they are hoping for a payoff at some point in the future - again an incentive.
Is it lame that someone buys the patent for an idea and then waits for someone to start infringing on the patents they own before demanding royalties for using their property? Maybe - some would call it shrewd. To me it's no different than the guy who buys cheap farmland and then years later sells it to developers for a fortune when the area has grown and turned urban.
Believe me, it sucks to get boxed in by patent constraints when you are developing a patent - I have had to change direction on my designs in the past when I have found out that I was possibly treading on someone else's patents. But that is the price we pay for having the protection for our ideas.
Steve
A work that expires before its copyright never enters the public domain and thus enjoys eternal copyright protection.
Upto your Kodak example, you're basically arguing:
...), so it's not surprising to see hundreds of modules/components/techniques/interactions in one software package (also a reason why there's so many bugs in comparison with the hardware world, but that's a different discussion).
"Patents are good, because you need patents to defend yourself against patents"
See the circular logic here? If there were no patents there would be no problem in the first place.
As for your point about "protecting intellectual property" - I'd echo the sentiment that other people had - you could steal other companies' ideas too, and the advances in your field would actually advance much faster! Don't forget you're standing on the shoulder of giants - in science you use other people's innovations all the time. I'm willing to bet it's exactly like that with engineering too - the more components a system has, the more likely it is you're going to want to use someone else's techniques. That's why software patents make the problem so apparent - software is "cheap" (no materials, no tolerances,
What patents basically do is slowing the rate of progress - people and companies have to watch out for a minefield of techniques they can't use for 10-20 years, even though it would make complete sense to do it from a technical standpoint. That also means, that if you're not using these techniques, you're not going to build on them or evolve them. You're either going to work around it (re-invent the wheel) - badly in some cases - or you're just going to drop it. That's progress with its hands tied!
As to your final point: yes, I have known people that used ideas of mine, and made a nice profit of them, and basically my reaction was: good for them! Having ideas is cheap, doing the work and taking the risk to bring them to fruition is the hard (99%) work. Another thing you might notice about ideas is that very often they're the product of the environment you're in. The technology is finally ready to do this or that, we have finally enough bandwith for an application like this, CPU power is now cheap enough that we can do this, etc etc - and that's also why it often seems a lot of people have the same or similar ideas at about the same time. I'd be way more pissed if I couldn't work out an idea because some twit patented it, than if I found out someone was "inspired by" (or in your words: "stole") an idea of mine (or even more likely: "came up with the same idea independently").
You could argue: "yes but, ideas have value - if you choose not to capitalize on it that's your problem". Well, the only reason ideas have value, is because of the artificial scarcity created by patent law. This is not automatically bad, but I believe in this case it is. Patent law is a delicate balance - the advantage of encouraging inventions with monetary rewards vs. the disadvantage of stopping other inventors from using certain ideas. I believe in the case of patents the disadvantage far outweighs the advantage, because I think a lot more harm is done by stopping others from using certain ideas (even if it is only temporarily) than from the very few inventors who would stop inventing because there's more risk to make it into a profitable product to recoup the cost of inventing.
You are correct - people will game any system, including the system. I apply the same test as with law proposals "One should always judge laws by their potential for abuse, not by their proclaimed benefits".
Collecting patents doesn't create value, but /creating/ patents sure does create value, because patents, and the investment that went into creating them, are valuable.
It is the new ideas, not the patents, that are valuable. The patents are an effort to attach additional artificial value to the ideas. Not having a patent on an idea does not make it worthless, and research into new things is still going to be valuable, even in a world without patents.
Let's take the cameras from earlier in the discussion as an example. Presume we are back in time in an alternate patentless past with Kodak busy making instant film cameras - something into which, in practice, they will have to put R&D. Sure, they can reverse engineer what Polaroid did to get the basics, but to actually manage to produce good quality working instant film cameras of their own they'll have to put in some research and engineering effort of their own. In the meantime Polaroid, instead of resting on their patent, is busy doing R&D to make better instant film cameras. As long as there are advancements to be made Polaroid, with their R&D team who are well acquainted with all the fine details of instant film cameras, far more so than reverse engineering people at Kodak, will always be the premiere instant film camera manufaturer, which is worth money. If Kodak simply reverse engineers everything they will be always be behind and playing desperate catch up ("how do we integrate this idea into our cameras? We would have to re-engineer all of X to do it!"). The only way for Kodak to actually get ahead and be anything other than the cheap knockoff brand would be to invest money in their own R&D team, working quite independently. Are the innovations that Polaroid might come up with as valuable as they might be with patents? Possibly not, but they are still distinctly valuable, and there is plenty of incentive for both Polaroid and Kodak to invest in R&D. Moreover, this alternate world would provide at least as rapid advancement in instant film technology as the real world with patents ever did.
But wait, there's more. While Polaroid and Kodak are busy slugging it out over instant film cameras there is still plenty of incentive for Asian camera makers to throw money into R&D on digital cameras because those investments will pay off. Even in the real world it is not so much patents holding Kodak back in the field of digital camera technology so much as the fact that Kodak just doesn't really "get" digital cameras. The companies that put in the hard slog researching and engineering digital cameras are way ahead. Kodak didn't believe digital photography would take off, and got into the game way to late. In our patentless alternate world exactly the same thing could very easily happen, and any company willing to put in the effort into digital camera technology would very likely see that effort repayed. There is still plenty of incentive for innvovation in the patentless world, and by not granting artificial monopolies companies are encouraged to push ahead in R&D rather than resting on their laurels from a single good idea. Innovation, research and development, and advancement of arts and sciences will all still occur, and quite vigorously, even in our theoretical patentless world.
But let's try another example, just to demonstrate that there is inherent value from serious research; that the value of research is not solely a function of patents. How could the US compete in a patentless world? What would they produce? Imagine a research thinktank specialising in technology X. If they come up some new innovative design that makes technology X cheaper, or more efficient, or just better, do you not think that technology X manufacturing companies in China, or India, or wherever, wouldn't pay good money for the fruits of that research? How much would they pay for contract with the thinktank for exclusive rights to any new innovations with regard to technology X for some fixed timeframe? Sure oth
Craft Beer Programming T-shirts
Corporate abuse of a broken system does not justify the system being broken in the first place.
But without such protections, there would be little incentive for companies to pay people like me to invent new products, because as soon as we did, they would be copied by places like China, and sold back in our markets for pennies on the dollar for what we could be able to sell them for. . . . Let's face it, folks, thought (IP) is one of the last marketable things that our country (USA) produces.
Without IP protections, we'd be making a hell of a lot more tangible goods domestically, and we wouldn't be worrying so much about foreign competition. On the other hand, IP protection by its very nature prevents free market domestic production of the same tangible goods. Strong IP rights being enforced domestically are, ironically enough, driving manufacturing jobs overseas, creating the very problem you fear.
This post expresses my opinion, not that of my employer. And yes, IAAL.