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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?
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.
So are you suggesting no change at all, or are you suggesting we get rid of the patent system altogether?
The latter would be great. The current system of patents was completely broken from the start. Even if the US had the best patent law in the world, what stops other countries from ignoring it? I don't want to see the military going overseas to protect patents, and I don't like ANY trade deals as they are all forms of favoritism.
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.
How? There is no chance of things getting gradually better -- laws that protect 10 cartels worth billions are not going to get changed by 200 million individuals who might save $10 a year each because of the monopolies created. 10 people chasing $2 billion will work harder than 200 million people chasing $2 billion.
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.
I agree, but my argument from the previous paragraph stands: you won't see things becoming "kinder and better" as long as we allow Congress and the federal branches such abusive powers.
Unless, of course, you are advocating sitting on our hands and letting the IP-maximalists continue to increase and concentrate their power.
Their power that We the People granted them by ignoring the Constitution. We gave our federal branches the ultimate powers that they were never allowed, and we're surprised that they give those powers to the highest bidders?
The solution is no more laws and more control/regulation. The solution is to remove those powers from the federal politicians, and return them to the People.
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.
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 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.
But isn't that exactly what our current patent system allows? I.e., there isn't another priceline.com because priceline has a monopoly on Internet reverse auctions.
When I look at the number of patents issued that cover essential Internet techonologies and even simple programming practices, I see a world that teeters on the edge of widespread regulation and central control.
To date, many of these [defensive] patents haven't been excercised. But we are beginning to see the lawyers come out of the woodwork, so to speak, and trying to put anything up on the web is increasingly a process of obtaining the correct "permissions" from those holding exclusive patent monopolies.
I know this from personal experience, having had to remove a simple research project, website, and java applet from the web while in college because of a cease-and-desist letter received from a patent holder. It didn't matter that I didn't think the patents applied to my work. It didn't matter that I thought I could win the "right" to continue my work in a court of law -- I didn't have the resources to go through that battle, so I folded.
And I'm not the only one.
In my case, the project I worked on wasn't earth-shattering, but I certainly think it could have made the world just a tiny-eeny-wee bit better had I been allowed to continue. My fear is that we are squashing a lot of really earth-shattering stuff that could benefit all of us, as well as their inventors.
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
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!
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