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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?
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.
Totally Absurd Patents
IP funny
Patent of the week
I am sure there are more, but it gives you a glimpse of the absurdity in patents. Some of the patents are funny too .. so enjoy :) (just don't spill coffee while reading)
The only way to purge this infestation is to burn the infection out with high priced legal action!!
Oh wait...
May the Maths Be with you!
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.
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.
From Business Week: Old Economy companies face similar trouble. Apparel maker VF Corp., for instance, regularly gets letters complaining it has infringed bra patents. "In the old days you would think of these things as the tinkering of a technician who knew his way around women's apparel...and wouldn't even think about getting a patent on it," says Peter Sullivan, the attorney who filed the brief in the KSR case on behalf of VF and others. "How many bra patents can you possibly have?"
That says it all.
GetOuttaMySpace - The Anti-Social Network
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.
Then nobody will be able to do anything.
He who knows best knows how little he knows. - Thomas Jefferson
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.
For your information, there is a so-called Provisional Patent Application available in US. It costs just 100$ to have your priority date locked for a 1-year grace period.
Better read about patent system first before posting ignorant comments
If the Patent Office closed its doors today it would need two years just to clear the backlog.
How about a 2 year moratorium on patents?
It's true no man is an island, but if you take a bunch of dead guys and tie 'em together, they make a good raft.
First off, I believe some of their citations are a bit dubious. They mention these great critics without citing any, and use the period of two decades with no supporting fact for the decline over that time. The Patent backlog has only worsened in recent years and the only way I can think they came up with the two decade number is because that is around the time SCOTUS opened the door for software and business method patents.
Interestingly enough, the case they pointed to is in a field not covered by either of these, but this is their attack. This is probably because these have become the two hotbed matters of discussion so it is best to stick to what infuriates readers the most, I suppose. However, a decision by SCOTUS would affect all patent areas, so maybe they aren't too far off...but still.
They say the obviousness bar has been lowered. However, I truly believe it was only lowered once when the Court of Appeals for the Federal Circuit (CAFC), decided to require motivations for making combinations and throwing "the one of ordinary skill in the art" out the window. Some have said this was an overreaction to hindsight issues in obviousness rejections.
They only mentioned one side of the brief as well. If I remember correctly an amiscus (that might be spelled wrong) brief was also filed against the arguments made by KSR. You see your technologies sit on one side while the bio-techs seem to be sitting on the other side, meaning two of the largest industries are pulling for opposite sides of the fight.
While they use the number of patent issuances going up, they seem to ignore the fact that patent filings have also sky-rocketed along with them. If the percentage of allowances per examinations are the same, then the stat is pretty irrelevant since the number would just be a case of more cases being viewed because of greater numbers of filings and more examiners examining cases.
I think an equally big problem with the patent process today is the number of simultaneous directions a company can use to defend itself. However, while you are waiting for a decision on one of the routes you may be decided against in another. The perfect example of this is RIM and NTP. RIM is waiting for the completion of re-examinations before the USPTO of NTPs patents and a case before SCOTUS on NTP's ability to sue RIM because of their location and operation as a Canadian company, but the District Court judge does not want to wait to hear from these cases (or the injunction case of ebay and Merch Exchange) and may force RIM into an expensive settlement that turns out to be pointless.
In the end, the blame for obviousness problems lies fairly firmly on the CAFC who added the unnecessary burden on the examiner of providing motivation for the combination of references. If this gets overturned it would send many patents tumbling and make rejections a lot easier. The last line of the article, however, is just plain wrong. I would be willing to wager that obviousness rejections under 35 USC 103 are the most common form of rejection used by the USPTO. It is very rare that anyone files for a patent for a device that has been previously released and would be rejectable under 35 USC 102. The article does provide some good information, but it also sorely lacks facts and definitely shows some degree of bias on the issue; however, it is an op-ed piece, so bias is fairly inherent.
"Some days you just can't get rid of a bomb."
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'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?
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.
I know lots of people here love to bash patents, but really, they are a good thing.
/their/ patents. Well then you whip out your portfolio of patents and thumb through them until you find some things that /they/ are infringing on of yours. Then you horse trade: "Hey...I'll let you off the hook for THESE infringements if you let us off the hook for THOSE infringements..."
/your/ idea and makes a fortune off of it leaving you with nothing.
I am a mechanical designer. I am listed on several patents for designs that I have been created or been involved with.
Yes, a lot of patents seem absurd. Hell, a lot of them probably ARE absurd. There is a reason for this.
Corporations like to build webs of patents around their products. It is not sufficient or desireable to just have a single patent. The idea is to create a web of patents around your product so that when someone infringes on one of your patents, and you take them to court, and they manage to use their highly paid lawyers to wiggle out of the infringement, you then can slap them with infringements on a bunch of other patents.
Another thing a web of patents do for you is they allow you to horse trade. Let's say someone comes against you with a lawsuit that you are infringing on one of
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.
But more importantly, patents protect intellectual property. I know, I know, everyone likes to poo-poo the idea of intellectual property. 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. Just about everything else that can be mass produced is now made somewhere else. Without some mechanism to protect IP, it will become worthless, and then we are going to be in some deep shit.
No one likes patents, until someone takes
Steve
A work that expires before its copyright never enters the public domain and thus enjoys eternal copyright protection.
"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
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
>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).
I understand your sentiment. But just about any market gets gamed. Look at the folks who milk the virtual world for "credits" and sell them for real currency in the real world!
I don't really have a problem with firms who's sole function is the holding of patents. They are NOT in the business of "patent litigation". They are in the business of buying commodities - in this case thoughts. They hold onto those commodities until someone comes along with the resources to use them, and then they charge royalties for the privelege. Nothing wrong with that.
Thoughts are becoming very valuable assets. Of course you are going to find people who want to treat them like any other futures commodity.
If someone comes up with a patentable thought, and someone wants to buy that thought with an eye towards it being in demand later in the future, what's wrong with that? Nothing, in my book.
>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.
I hear you. But you would not believe how absurd some things that truly are patentable seem when you first look at them. You think, "How could this possibly be new and different?" The fact is, especially in the mechanical world, most of the mechanical ways of making structures have already been done. But when you put old ideas together in new ways to achieve something new, often as not, that can be patentable. Hell, I'm on a patent for a DUST COVER ( http://tinyurl.com/8eh7l ) - a simple rubber plug for fiber optic ports. It's all in the way you word your patent.
Are there absurd patents out there? Sure. But remember, patents aren't bullet proof, either. They can be rejected, even after being approved.
Steve
A work that expires before its copyright never enters the public domain and thus enjoys eternal copyright protection.
>You had nothing to start with. An idea is just an idea ---
/did/ have the means to bring that machine to market.
>we all have them. What you are describing is simply envy that
>someone else has managed to make money out of an idea when you
>yourself didn't.
You are completely incorrect. Sure, we all have thoughts, but some are valuable and some are not. Very genreally, if you have a thought, and can demonstrate that there was no prior art (no one else thought of it first), you can patent it, and capitalize on that thought. If it is a good enough thought, people will pay you to make use of it.
>As an electronics engineer and software architect with many years
>behind me, I have a stack of notebooks absolutely brimming with novel
>ideas, the vast majority of which I will never use in any product.
>Patenting them would be utterly diabolical, effectively denying
>others the right to invent those concepts for themselves independently.
LOL! Patenting them would be diabolical? It happens every day, dude. People invent things themselves independently every day. And you know what? If they are first to the patent office, they get themselves a patent. If you don't care to participate, that's great, but not much of an argument for the case you appear to be making that thoughts aren't valuable, protectectable assets.
>Does it matter to me when someone else develops one of my ideas by
>themselves, or stumbles across it fortuitiously? Of course not.
>Ideas are two a penny, and "losing the potential to make money"
>is losing nothing at all. If I wanted to make money out of them myself,
>I would, and if I don't have the means to do so then this very clearly
>illustrates how that "potential" was actually an illusion and entirely
>worthless.
This is so flawed I'm not sure where to begin. Just becase you don't have the means to captalize on your ideas does not mean that the idea was worthless. I would hazzard to say that this is the quandry with most inventors - they have great ideas but lack the means to do anything with them. Hell, just getting a patent is very expensive! But this certainly does not mean that the idea is worthless. If I invented a machine that could produce gold out of horse shit but I didn't have the means to actually make the machine would my idea for this invention be worthless? Hell no - I'd be selling that thought for billions to someone who
It may not matter to you if your thoughts are independently discovered by others and then capitalized by them. But it would bother me. But that wasn't my point in my original posting - what my point was then is that patents protect your thoughts that other people DON'T get independently (they copy you) and they make a fortune off of.
Steve
A work that expires before its copyright never enters the public domain and thus enjoys eternal copyright protection.
Inline skates took off when the patent expired. I think the most recent designs were from 1980. Now the patents are on the various brakes.
Funny. The media (especially business media) was very pro-patent up to a few months ago. Suddenly all these articles questioning patents are cropping up.
Either they are hurt by the fact that their Blackberries may stop working, or there is an orchestrated PR campaing going on.
Dejan
And his article referenced therein.
Nickname: Stephan Kinsella
Review: As a practicing patent attorney, I've observed that both proponents and opponents of the patent system use unprincipled, flawed, utilitarian (wealth-maximization) reasoning to support their position. The primarily principled opponents of patents are anti-industrialist, anti-private-property socialists. The solution is to realize that there is a non-socialist, pro-property rights, principled case against patents, as I have laid out in my article Against Intellectual Property, available at Mises.org http://www.mises.org/journals/jls/15_2/15_2_1.pdf
Date reviewed: Jan 3, 2006 8:54 PM
Richard Steven Hack - This sig is TOO GODDAMN SHORT TO DO ANYTHING USEFUL WITH! MORONS!
>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.
...if the patent office would actually go out and check to see if the patent is vapourware or not, rather than just blindly accept that the person has created whatever it is.
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
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