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IEEE Proposes New Class of Patents
cheesedog writes "The IEEE Spectrum proposes a new type of patent that wouldn't require formal examination, would cost significantly less than traditional patents, would last only 4 years from date of first commercial product, and which wouldn't carry a presumption of validity. These 'limited patents' would be attractive to innovators in the fast-moving high-tech industry that can't wait 18-24 months for patent approval, and would help improve patent quality by populating the USPTO's prior-art database more efficiently. Additional commentary on this proposal is available."
... did they patent this new class of patents?
I can just imagine what it will be like when a patent dispute happens. We already have enough BS patents out there clogging up the patent office that slow them down, how is this going to help any? I agree that patents need to be granted more quickly, but is giving out patents without formal examination really the answer?
This is a very good idea. My current patent application was filed Jan '01 and is still being reviewed!
TimJowers
Expect Freedom.
So a 4-year patent just means you have to pay them 4 times, and then you have procured the patent for the approximage 17 years of a regular patent. Or, perhaps longer... assuming pressure from all the companies to whack this once it goes into effect, so that they can keep their patents for cheaper. Any patent system's original rules will be altered by pressure from the largest patent holders. What we need to have happen is to force accountability for patent fees, i.e. force some kind of license limit on the amount you can ream people for off of them.
stuff |
So all the people that have been submitting crap to the patent office that actually gets qualified as "valid", even if it isn't will have a field day patenting everything then? If the onus is on everybody else but the patent-holder to prove that it isn't valid, that kinda sucks.
-Jesse
Nothing says "unprofessional job" like wrinkles in your duct tape.
A fee? That sounds counter-productive to encouraging prior art submissions.
First, while you are in patent pending, you are protected.
Second, Patents are not expensive, paten lawyers are. You can file a patent as an individual for a few hundred dollars.
Third, a patent is a way of saying you had it first, but there are other ways.
Forth, This would be even more abused then the current system
The Kruger Dunning explains most post on
Has anybody patented this new type of patent yet?
If your "invention" isn't in the same class as Penicillin or the Cotton Gin, it's not important enough to require a patent
OMFG!! Cheap Patents!! No validation!! And it only starts ticking down after the other guy brings his product to market!! IP companies are on the up!!!! zOMFGBBQ!!!!11!11oneone!eleven!!
They'll bring the patents, and the USPTO will bring the stamps.
May the Maths Be with you!
Check out http://www.shouldexist.org/. ShouldExist is a superb place to anti-patent ideas. I will not be surprised if a fair number of software patents being filed have been already mentioned on ShouldExist.
TimJowers
Expect Freedom.
As far as software is concerned, and perhaps some other idiotic types of IP (like copyright on the "appearance" of a building in a public location), is to ELIMINATE it. Their absence is what got us where we are, but for some reason, people feel like they have to squeeze every last bit of "value" from something that is often completely intangible. The only thing it's doing is slowing things down and increasing costs. I imagine that not too long from now, the "leaders" in the US government will be scratching something, wondering why the US continues to either lag behind, or give up ground to, other countries in important areas like science and technology. The current patent system has shackled and menacled our ability to remain agile, and I fear that we will pay dearly for that over the long term.
The current patent duration of 20 years was established in the prior revolution, the industrial revolution. It is way to long and benefits the major corporate holds the most. A patent in todays faster moving world should be short as is being proposed. That would reduced their importance and significance. Is an "innovative" idea like one click shopping significant enough to lock up for 20 years? I don't think so. The whole idea behing the duration is to to help an inventor recover the cost of an invention and capitalize on it. Today's entrepreneurs can recover an investment much more quickly than in the past.
[Fuck Beta]
o0t!
First off, a better view of the article(plaintext, one page).
What the submitter failed to mention is that the patent claim is validated only when the patent owner attempts to sue an alleged infringer of that patent. FTFA: "Should the patent owner try to sue an alleged infringer, an examination for novelty would be the initial step in any litigation." And goes on to claim that this is better because the alleged violator will have to provide prior art to invalidate the patent.
This seems to increase the amount of time developers will have to spend in courts, attacking and defending, while reducing the burden on the patent office. Less chance of mistakes, but probably not a viable option for smaller developers without the resources to spend on litigation.
Also, the other linked article claims that "Novelty could be challenged at any point by someone submitting prior art and paying a small fee." Anyone have any idea where this information comes from?
StrayByte.Net
Congrats! You have been granted this patent, and we shall not verify the claim as you were the first to question. PLease send a check for a bazillion dollars to my Nigerian associate: PO Box 416, Scamtown, Nigeria. And please dont forget that this is valid for only 4 years, so please hurry.
Microsoft and its lackeys did tons of lobbying to get this done... just a guess. *Less* technical review for software patents? That's the worst idea I've heard in years. Most patent reviewers for IT patents are already approving the most ridiculous things... (before I get flamed, by all means, put the word "patent" into a search here for /. stories)
Ex nihilo nihil fit.
The IEEE Spectrum proposes a new type of patent that wouldn't require formal examination
Judging by the quality of the examination for the current types of patents, this part wouldn't be much of a change. They might as well do away with examination of patents all together, considering some of the crap that gets approved.
...arise defending your patent against a challenge by a billion $ company. That is the problem that must be addressed, not changing patents themselves (though a real examination of claims by the patent office would be nice as well.)
"would last only 4 years from date of first commercial product"
i ndex.html#whatpat
This part I can buy, and I would go further and change the entire patent system to limit to 4 years on ALL patents from date of first commercial product. After all, the original objective of the patent system was to advance science, industry, etc. in the United States, it was not intended as a means of leeching cash from a productive industry or building monopolies. Shorter terms would force the hand of patent holders to put up or shut up.
I would also implement stricter rules on acceptance of patents. Today we hear over and over the excuse that lame patents are accepted because the office is overworked. I've read the rules on the uspto.gov website and several of the questionable patents that have been in the news and from what I've seen every one of them should have been rejected in the first 5 minutes of reading the abstract and claims.
The rules are simple and most patents don't pass muster. The patent office should be pushing back on those who file patents to submit applications which easily pass the initial tests:
"The patent law specifies that the subject matter must be "useful." The term "useful" in this connection refers to the condition that the subject matter has a useful purpose and also includes operativeness, that is, a machine which will not operate to perform the intended purpose would not be called useful, and therefore would not be granted a patent.
Interpretations of the statute by the courts have defined the limits of the field of subject matter that can be patented, thus it has been held that the laws of nature, physical phenomena, and abstract ideas are not patentable subject matter.
A patent cannot be obtained upon a mere idea or suggestion. The patent is granted upon the new machine, manufacture, etc., as has been said, and not upon the idea or suggestion of the new machine. A complete description of the actual machine or other subject matter for which a patent is sought is required."
http://www.uspto.gov/web/offices/pac/doc/general/
And from these basic rules it becomes obvious that SOFTWARE IS NOT PATENTABLE, you use copyrights for software. And just to add to the rant, a reimplementation of a concept or idea by someone else is not infringement of a copyright. I suspect that is why we have this big mess with software patents. I also suspect that part of the problem is interference from lawyers and lawmakers who have beaten the USPTO into submission, but at some point we need to stop all this stupidity.
burnin
If you think imaginary property and real property are the same, when does your house become public domain?
RTFA. He spends a fair amount of time on exactly this.
The universe is a figment of its own imagination.
...a new class of peanuts.. I must take a break and/or get some glasses.
AT&ROFLMAO
You don't know what you are talking about. Professor Hollaar has an intimate understanding of these issues. He is a blue-chip expert in this arena, and your suggestions to the contrary are wholly unfounded.
Lee Hollaar is one of our nation's most brilliant non-legal scholars regarding intellectual property issues. Lee has been active in intellectual proprerty matters for decades, and is the author of the BNA publication "Legal Protection of Digital Information," which you can read for free online (complete with hyperlinks to case law!) at the AUTHOR's insistance. Although he is no doubt an IP maximalist, his is frequenty a reasoned and well-informed view.
He is the author of or worked closely with the authors of highly influential amicus briefs that led the United States Supreme Courts to decisions in landmark intellectual property law cases. He worked on the hill as a staffer, and also as an advisor to the Federal Circuit Court of Appeals. And he has served as technical expert and special master in many important IP and technology law cases, including United States v. Microsoft.
As it turns out, I do not agree with Lee on the necessity or benefits of his "petit patent" proposal, and might agree with a more critically worded and substantive revision of the poster's remarks. Unlikely many on this forum, I find Lee to be open to new ideas and revisions of his old ones when confronted with solid argument. This flexibility toward truth-seeking rather than lockstep ideology is one of the principal reasons he is such a formidable opponent at a debate on IP matters, and why his opinions, even when they are wrong, are highly influential.
But I would Never, NEVER suggest that the proposal was founded in ignorance. Professor Hollaar has enormous gravitas in the IP community, and his influence is well-deserved. Right or wrong (I often disagree and spar with him), your suggestions about his understanding are wholly unfounded.
Mandatory licencing via a maximum 15% tariff on patented goods would solve the problem.
Right now the little guys get eaten alive having the burden of getting their goods to market without the propper resources to do so. With the 15% tariff all they need to do is patent their invention and the market will reap the profits for them.
Yes, big pharma might get lowballed for their R/D costs, but on the bright side they wouldn't have to spend billons on those drug ads that appear during prime time.
Also, software patents wouldn't be a problem because paying an extra 15 cents on your $1 software download isn't going to hurt much.
bash-2.04$
bash-2.04$yes "Don't you hate dialup connections?"| write USERNAME
I read the article. I don't remember that. I remember him saying that the existing system needed to be overhauled severly, but not abolished as the GP says.
and they last as long as you don't reveal them.
_ eeeeeyooooo.html
http://www.nigeljohnstone.com/archives/2006/02/eu
I think the standard of "obvious" should be that if two different people independantly come up with the same idea, then obviously the idea was "obvious".
That would allow inventors to have immediate protection against knockoffs of a technology even as they try to get broader protection by meeting the more stringent requirements for a conventional patent.
That is absolutely unacceptable because it would give people the benefits of both patent types. It would make the current situation far worse because, not only would people get the long term protection in some cases, they would get the short term protection even for the most bogus of inventions.
If people decide to use the limited patent, then they should be barred from filing the same invention under a conventional patent.
Right now the main problems are: high cost and
slow ands bad processing. The cost, btw, while
high is relatively fixed and is usually below
10K for a simple US patent.
What this does is takes the cost out of USPTO
and moves it to courtroom but you just know
this will be more expensive. For that money
you may or may not get a better patent examination
and this will then depend on how good a
lawyer you can afford.
End result: full valid patent will cost more,
be obtained as slowly or slower (our courts
aren't the fastest beasts) and bad patents
will still get through except now they will
be easier to link to the better law firms.
What we do need to do:
1. Reduce all patent validity to 4-5 years.
2. Introduce peer review where every patent
is taken through a double blind test: you
give qualified engineers a spec and see if
they propose something like the patent, in
which case it is obvious to one skilled in
the art.
3. Make it possible for people to submit
prior art within one year of patent being
granted and make a committee explicitly
biased to reject anything that even
remotely looks like it is in prior art.
4. Sponsor watchdog groups which will organize
engineers to do peer review in 3.
5. Introduce limits on examiner workload
and make sure their pay is higher than in
the industry to attract the best.
It would be nice also for the bar association
to put pressure on patent attorneys to
litigate IP cases for poor clients on a flat
fee basis. There is already pro bono system
but I have not heard of IP cases being tried
pro bono. We need an intermediate solution
where a lawyer gets paid something but the
client can know his costs in advance.
Currently one of the requirements for a patent to be accepted is that the invention is not obvious (to someone "skilled in the art"). In practice, a lot of obvious patents are allowed by the patent office (in the US as well as in europe).
From TFA: "That exam would take less time than a regular patent examination, because obviousness would not be considered."
A patent would get examinated only when challenged, but obviousity would NOT be taken into account.. what these people propose is to make a law of the current bad practice of allowing obvious patents.
Also the guy seems to think that the reason we have such bad software patents around is that in the past software developers were not patenting their ideas, so now there is no prior art for old ideas. This is extremely stupid since somthing doesn't have to be in a patent application to be prior art: if an academic paper described an idea ten years ago it is prior art for new patents even if nobody patented it. The same should be true for an idea implemented in the linux kernel ten years ago, although in this case I am not sure it would meet the USPTO's documental requirements for prior art.
What really would have happened if the US patenting system had allowed "techniques from the early period of computer applications" to be patented, is that IT would not have had anywhere close the development it has had, and the US would be lagging behind the rest of the high-tech world because innovation would have been stifled.
Here is the relavant part of the United States Code you can interpret yourself...
The uspto has a publication on this subject, but it's mostly legalese. With most government actions, often fee is involved. However, and I quote the publication...Everyone on /. consistently bashes the current IP/patent system and the PTO, always offering heaps of reasons why it sucks.
This guy, an actual *professional* in that field, comes up with some ideas and spends the time to think them through, document them, review them with peers, and even has a huge body (IEEE) behind him.
Yet 90% of the posts on here are negative, with absolutely no substantial suggestions that would improve the situation.
-David
It makes sense until you pay attention to "until a patent is granted." That screws the whole thing up. Effectively he's proposing that patents get published immediately instead of after 18 months. Yeah, publications don't carry the same weight, but people still pay attention to them. IFF you have to decide between short and patents, then it starts sounding attractive. Maybe it needs some tweeks, but it's a start. You file, you automatically get a short patent. Validity is tested only when it's challenged, then it gets a full review. Both parties get to speak so validity is more stringent. If it passes, cool, it was deserving of a patent anyway. If it doesn't, it's dead. After 4 years, it's dead either way. If you keep the "4 years from commercialize" part, you better set a time limit on commercialization (1 year?). And you only get to have claims on that embodiment. Still, I'd go for the long patent. It often takes 4 years before something starts selling well. 20 years of protection seems safer. Maybe I like this proposal because I'd like to see others take that path.
The world is made by those who show up for the job.
> First, while you are in patent pending, you are protected. Almost -- you are _potentially_ protected, namely if and only if your patent eventually gets accepted. > Second, Patents are not expensive, paten lawyers are. You can file a patent as an individual for a few hundred dollars. Yes, per country. Now imagine you have something in the pocket that you want to protect in all major countries, you have to provide certified translations and pay fees in all countries where you seek protection. Can easily sum up to $100,000. > Third, a patent is a way of saying you had it first, but there are other ways. Yes, but it's the only one in existence that gives you a monopoly, with all pros (for you) and cons (for society). > Forth, This would be even more abused then the current system In Germany, something like what IEEE has propose actually exists, you can file a utility model for 40. But people still opt mostly for patents, because they are a "stronger weapon".
...Patents are not expensive, patent lawyers are. You can file a patent as an individual for a few hundred dollars...
That's a distinction without a difference. In practical terms, nobody files a patent without consulting a lawyer who specializes in patent law. Why? So the patent will hold up in court and to improve the chances of it getting approved. If it's valuable enough to bother patenting, it's worth consulting a lawywer. If you can't afford a laywer, your patent is effectively worthless anyway because you can't enforce the patent.
I submitted a correction to /. about this, but The Powers That Be didn't bother to fix the headline, so I'll try do it here:
/. is debating Prof. Hollaar's idea, just note that it's not an official IEEE proposal.
I'm the IEEE Spectrum editor of this article, and for the record the IEEE has made no such proposal. To quote the disclaimer we run with every issue: "The editorial content of IEEE Spectrum magazine does not represent official positions of the IEEE or its organizational units."
Prof Hollaar's article is funtionally equivalent to an Op-Ed -- as a respected, knowledgedable, and articulate individual, he was given space in the magazine to share a proposal we found noteworthy. We've actually run a lot of articles on the "What To Do With Patents" theme recently, as our contribution to the patent reform debate, with authors advocating ideas ranging from replacing software patents completely with copyright, to more-or-less leaving well enough alone. I think it's great
"Just once, I'd like to meet an alien menace that wasn't immune to bullets." -- The Brigadier, Dr. Who
In the proposed IEEE system...
/. about this, but The Powers That Be didn't bother to fix the headline, so I'll try do it here: (this is a repost of this comment)
/. is debating Prof. Hollaar's idea, just note that it's not an official IEEE proposal.
I submitted a correction to
I'm the IEEE Spectrum editor of this article, and for the record the IEEE has made no such proposal. To quote the disclaimer we run with every issue: "The editorial content of IEEE Spectrum magazine does not represent official positions of the IEEE or its organizational units."
Prof Hollaar's article is funtionally equivalent to an Op-Ed -- as a respected, knowledgedable, and articulate individual, he was given space in the magazine to share a proposal we found noteworthy. We've actually run a lot of articles on the "What To Do With Patents" theme recently, as our contribution to the patent reform debate, with authors advocating ideas ranging from replacing software patents completely with copyright, to more-or-less leaving well enough alone. I think it's great
"Just once, I'd like to meet an alien menace that wasn't immune to bullets." -- The Brigadier, Dr. Who
I betcha I can come up with a method of posting even faster than THAT, using an innovative mechanism derived from non-obvious technological advances. Claim#1: ....
[You have a stable society when some nut guns down a schoolyard and the law doesn't change.]
Sometimes I put ideas there in the hopes that they will be picked up by industry, as they don't seem to take product ideas from the public (computer and camera manufacturers), they just ignore my messages.
even has a huge body (IEEE) behind him.
/. about this, but The Powers That Be didn't bother to fix the headline, so I'll try do it here: (this is a repost of a comment I've posted elsewhere)
/. is debating Prof. Hollaar's idea, just note that it's not an official IEEE proposal.
I submitted a correction to
I'm the IEEE Spectrum editor of this article, and for the record the IEEE has made no such proposal. To quote the disclaimer we run with every issue: "The editorial content of IEEE Spectrum magazine does not represent official positions of the IEEE or its organizational units."
Prof Hollaar's article is funtionally equivalent to an Op-Ed -- as a respected, knowledgedable, and articulate individual, he was given space in the magazine to share a proposal we found noteworthy. We've actually run a lot of articles on the "What To Do With Patents" theme recently, as our contribution to the patent reform debate, with authors advocating ideas ranging from replacing software patents completely with copyright, to more-or-less leaving well enough alone. I think it's great
"Just once, I'd like to meet an alien menace that wasn't immune to bullets." -- The Brigadier, Dr. Who
Maybe there's a patent attorney who has a brother-in-law in the IEEE group that proposed this, or something.
/. about this, but The Powers That Be didn't bother to fix the headline, so I'll try do it here: (this is a repost of a comment I've posted elsewhere)
/. is debating Prof. Hollaar's idea, just note that it's not an official IEEE proposal.
I submitted a correction to
I'm the IEEE Spectrum editor of this article, and for the record the IEEE has made no such proposal. To quote the disclaimer we run with every issue: "The editorial content of IEEE Spectrum magazine does not represent official positions of the IEEE or its organizational units."
Prof Hollaar's article is funtionally equivalent to an Op-Ed -- as a respected, knowledgedable, and articulate individual, he was given space in the magazine to share a proposal we found noteworthy. We've actually run a lot of articles on the "What To Do With Patents" theme recently, as our contribution to the patent reform debate, with authors advocating ideas ranging from replacing software patents completely with copyright, to more-or-less leaving well enough alone. I think it's great
"Just once, I'd like to meet an alien menace that wasn't immune to bullets." -- The Brigadier, Dr. Who
Better quesion here is what they want to do with that legislation. Decrease unempolyment rate? Even now US courts are full of patent cases and can't handle the load. With this one,.... well court buildings construction would impose higher demand, clerks, judges, lawyers etc. You could probably employ most of the currently unemployed. Other unemployed could just start new job, litigation without sense.
Off course, US major bussines would move from production and sale to litigation.
Conclusion: Damn, sounds like SCO will sue US for infringing their intelectual property.
Signature Pro version 1.13.2-3 release 83.5 beta3try7 after-breakfast edition
First to market won't quite work, because people could put up silly "products" that incorporate an idea just to meet this requirement. I think though that a better way to achieve the same thing is to go ahead and use the standard method to grant a patent, but if it hasn't been commercialized within a certain time frame then the patent is deemed invalid. This would prevent patent squatting and would ensure that good ideas get to public domain in cases where the inventor is not able to commercialize the product.
I wouldn't mind seeing the current class of patents see their terms reduced. Considering how many patents are made by those with no intention whatsoever of producing or selling their own invention, but they do it only for the lawsuit income, and also considering the current pace of advencements as well as how some areas of technology are artificially hindered by patent politics, I think technology in general would benefit from a shorter patent term today.
If someone has a truely beneficial idea, but either cannot afford patent license fees or the patent holder is absolute in their denial even if the new idea comes from a very rich inventor, then you have to wait around a number of years for anyone to benefit from such an idea. I'd like to reduce my wait, thanks.
I understand why patents were created way back when, but they've flipped-flopped from being a protection and encouragement of innovation of yesteryear to a hinderance to innovation today. I'm not saying we should get rid of patents completely, but only to adjust things to work better with today's potential pace of advancements.
I think the basic premise that you cant apply for a patent unless your invention is within the marketplace is sound. However, it is contrary to international law and the Paris convention. The vast majority of nations require an inventor to file for a patent *before* placing his invention in the marketplace. Anyone who files for one of these "petit" patents would waive patent protection in most foreign countries due to Paris convention requirements. Thus, no one with a valuable invention would ever apply for these petit patents and the petit patents would only be used for inventions without any value (and novelty).
So basically what the IEEE is proposing is that the USPTO issue millions (billions?) of cheap patents on worthless inventions, which is the last thing anyone needs. I cant image what the patent trolls would do if they could get a hold of a million patents each month.
Four years sounds better than 20 especially because software moves so quick... is four years too short or too long? What happens if someone has a brilliantly novel and innovative idea but is ready way before the market will accept the new technology? Say the inventor maxes out his credit card just to get to year four when the market is starting to pick up... then along comes GiantCompany who takes the idea and makes billions. This would make a case for trade-secrecy.
A better prior art database with an intelligent search and natural language processing might be advantageous. With software patents maybe the source code itself could be submitted and stored in a giant revision control system. A super-compiler / analyzer could characterise software and cross reference with patent application, search for prior art, maybe even access the novelty and innovation. This could speed up the whole patent system take some of the nonsense out of software patents, reduce bunk claims, and cut out the lawyer middleman. Then again it would all depend on how "fairly" the system was built and evolved.
Professor Hollaar just published a paper on this topic (probably the basis for this idea). I know for a fact that this has been in the process of being considered by the IEEE for a few years now, so it's not some half-thought-out idea.
f
e llFinalPaper.pdf
digital-law-online.info/papers/lah/mini-patent.pd
Also, some research I did for him last summer on this topic:
www.wise-intern.org/journal04/WISE2004-JeremyTunn
While I don't always agree with Professor Hollaar on every issue, I think this idea deserves some serious consideration. There are many countries out there (australia, japan, etc) who have successfully implemented it.
That is the way it is right now. Code is NOT patentable. Actual source code is only protected by copyright.
argumentum ad fallacium: Fallacy of defining a fallacy which allows one to dismiss the argument in question.
I see a lot of comments from people that obviously didn't read the article. Some have made some good points, for those that did.
After reading the article, the solution proposed is a good solution IMO. A patent granted through this system solves many of the problems with the current patent process.
1. Eliminates the upfront burden on the patent office.
2. A patent is only enforceable if a commercial product is produced by the patentee. That's a biggie. This gets rid of the current batch of "IP" companies, whose sole existance is pumping out patents and litigating. No product, no enforceable patent.
3. The first step in any litigation is an examination by the USPTO.
4. These mini-patents can be challenged via prior art with a small fee.
5. It will help build up the prior art database, which should allow the USPTO to be quicker in making prior art determinations in any examinations they have to do.
Although people might bemoan the fact that this would grant a lot of trivial patents, those same trivial patents also mean that prior art has been established. Those trivial patents are meaningless unless a commercial product is produced. And if it's trivial, then chances are it will be easily refuted upon a full USPTO examination. Which means you've now established both prior art and refuted the patent, both of which can be referenced by the USPTO directly for later patent examinations, which should help them make determinations for prior art quicker.
Since the fee involved with one of these patents is small, it will also mean that people would be free to submit patents for the sole purpose of establishing prior art, even if they have no intent of bringing a product to market. This could be used to actually prevent folks from taking out trivial patents in the future, making a product, and then trying to enforce it, since a prior patent had already been issued. Even if that prior patent is not enforceable, it still establishes the prior art, thus invalidating the subsequent patent.
Would love to see someone's reasoned arguments as to what the pitfalls might be under such a system.
First, while you are in patent pending, you are protected.
You are only protected after your application is published, and only if you have not substantially altered the scope of the claims while you're before the USPTO. A published claim must have substantially the same scope as an issued claim, or there is no practical protection. This not necessarily an easy task when there is extensive prior art. If you file an application blindly (also relevant to your second point below), it is practically impossible.
Second, Patents are not expensive, paten lawyers are. You can file a patent as an individual for a few hundred dollars.
The filing fee is $395 for an individual, assuming that you qualify as a small entity. The filing fee cannot get you a patent. If you prosecute the application perfectly, meaning everything you need is in the specification (no affidavits or declarations), you argue allowable claims within two office actions (not an easy task, it is not uncommon for an examiner to be wrong, and they do not tend to "roll over" as some suggest), and you ask for no extensions of time to make your arguments, the typical patent itself will cost you an additional $1000 (issue fee and publication fee).
If you file an application without performing a patentability search and analysis, you are almost guaranteed to obtain an inferior patent (no pre-grant protection, claims that can only be interpreted literally) or no patent at all. A search costs ~$500 in a simple case. The time spent analyzing the results will at least equal that, unless your opportunity cost for your time is $0.
Patent lawyers are expensive because patent law is hard. The USPTO offers free copies of past patent bar examinations with answers here. You need to score 70% or better to pass, i.e. be minimally competent, and you need to complete the examination in 6 hours or less. Good luck.
Third, a patent is a way of saying you had it first, but there are other ways.
True. But most people seeking patents claim that they are not only seeking notoriety. Patent grants rights. Publishing your paper on the internet grants others the ability to copy you mercilessly. People who come up with truly novel and non-obvious inventions typically prefer to obtain rights.
Forth, This would be even more abused then the current system
I don't have an opinion on this, at least not yet. Many European countries have had petit patent systems for historically significant periods of time. Literature discussing the experiences in those countries would be a good place to being if you want to form an informed opinion.
Why not outsource the whole courtsystem? With todays teleconferencing tech, the jugde could come from India and a couple of Canadians could provide security in the courtroom....
Error #13: No coffee. Operator halted. Please place boot device at bottom.
The patent office website could have a simple form at the bottom of each pending patent where people could post prior art references, or "obviousness" points.
And they could just skip business process and software patents all together. I like the "in the hand" rule, if you can't hold it in your hand,or physically grab it, it isn't patentable.
Now, I haven't extensively looked at patents that were granted in the past, but most of the ones I have seen, were for macro-inventions or macro-processes; such as a gadget onto itself. But it seems nowadays, corporations are taking advantage of the patent system by patenting micro-inventions or micro-processes; such as one-click purchasing, or some other small cog that makes the larger system work.
Now I can understand why the small inventor would not want to dole out an arm and a leg (and a first born) trying to patent every minute detail of his invention, but it seems unfair when put against large corporations who have the deep pockets needed to dissect one of the their inventions and patent every imaginable nook and crannie in their product.
So perhaps, we should also take this into account when drafting new patent laws.
That of making (possibly all) patents last 4 years.
Wondering why i am doing so strange posts? I am trying to get a "+5,Flamebait" or "-1,Insightful" rating.
man I LIKE your prior art bounty idea! That would work!
Acme loses, because, as written in the article:
Should the patent owner try to sue an alleged infringer, an examination for novelty would be the initial step in any litigation.Because your product already is on the market, you win easily. And if is not on the market, you can also win, if you show that the tecnology had been indipendently created, and so Acme is not the first. (I hope that my english is correct ... :-) )
I responded to the original post, which incorrectly and improperly suggested Prof. Hollaar is ignorant of patent issues. I don't disagree with you as to some of your remarks, and am not nearly so excited about this proposal as is he. However, he did make strong arguments in favor of his proposal, which require deeper analysis than to engage in name calling.
One point to make, however, is that "novelty" is a very specialized term in this context, and it is one of the Hollaar proposal's most difficult issue. A claimed invention is NOVEL, whenever no single prior art reference (or publicly practiced thing) contains ALL of the limitations in the claim. A single technical difference is enough to make the claim NOVEL. However, trivial technical differences, like design decisions are generally not sufficient to make the novel idea unobvious. Accordingly, the scope of "things" that can be protected by a four-year petit patent in his proposal is much, MUCH larger than that for which a big patent.
In other words, the restriction to novelty doesn't limit the scope of patentable content, it limits the scope of bases for REJECTING protection. The present standard is novel, useful and unobvious. The new standard would be merely novel and useful. I think you might agree with me that this could be a bad thing.
Given that this will be exploited by first entrants to quickly moving markets, I am concerned that the principal marketplace protections -- yes pretections -- of the patent system may be circumvented, and that the inventor protection this offers can significantly stunt innovation and American competitiveness.
His proposal DOES address important problems of the status quo, but not all the imporatnt problems of the status quo. And it exacerbates others. The proposal is not wrong because it is imperfect, but its benefits must be fairly weighed against its costs. This is how one makes an argument in the face of new ideas. Calling them "dumb," without more, is neither insightful nor helpful.
" Right now the main problems are: high cost and
slow ands bad processing. The cost, btw, while
high is relatively fixed and is usually below
10K for a simple US patent."
that is wildly incorrect.
it cost a few hunder for an individual to file a patent.
Noy, if you want to paty for someone else to do a patent search for you, that's your option, but it is not a requirement of the patent office.
"1. Reduce all patent validity to 4-5 years."
not practical, and people who state that must be pretty far removed from the process of getting something to market.
"2. Introduce peer review where every patent
is taken through a double blind test: you
give qualified engineers a spec and see if
they propose something like the patent, in
which case it is obvious to one skilled in
the art."
You have just quadrupled the cost of a patent, probably more.
It may be obvious now that the engineer is aware of the problem. What about people with forsight and want to prepare for an issue before anyone else knows it is an issue? Or yuu propose something for a new market?
"3. Make it possible for people to submit
prior art within one year of patent being
granted and make a committee explicitly
biased to reject anything that even
remotely looks like it is in prior art."
Becasue soething the remotly looks like prior art, isn't prior art.
"4. Sponsor watchdog groups which will organize
engineers to do peer review in 3."
great, more comittee, and another quadrupling of costs.
"5. Introduce limits on examiner workload
and make sure their pay is higher than in
the industry to attract the best."
ecept the best probasbly don't want to review other peoples ideas.
The Kruger Dunning explains most post on
This is probably the single biggest and most widely voiced misconception about patents in general. The idea of patents is not primarily to get people to invent things or help them get rich -- it's to get them to publish what they've invented, and turn it over to the public in general after a (fairly) limited period of time.
IOW, the question isn't whether Bill (or Larry, etc.) got rich, but whether any technology they invented will eventually become openly available. Without patents, the answer is generally no -- at least not legally. Admittedly, you could argue (and in the case of Windows many would) that most of us don't want the technology, but in that case the patent didn't really cost you anything either -- in theory in deprived you of using some technology for a while, but if you didn't want that technology, that doesn't really matter a lot.
The universe is a figment of its own imagination.
Damn me, but if this would happen', I think EU would sue MS for preinstalled MSNCourtChat with the next release of Windows:)
Signature Pro version 1.13.2-3 release 83.5 beta3try7 after-breakfast edition
Not really. shouldexist.org seems to publish mostly unimplemented ideas. But you can't patent ideas, you have to implement it before you can get a patent. Therefore, all the unimplemented ideas on shouldexist.org are still patentable by someone who goes through the effort of working out the details by creating an implementation. As other have said, the proposal requires the patent owner to distribute a product, which itself requires an (economicly feasible) implementation.
On the other hand, it is true that to establish prior art you need to publicize your implementation, and there may be good ways to do that other than paying the patent office. A sticking point is establishing the date. For example, you could release an open source implementation, but I'm not sure how you would establish the date of release in a way that could not be forged in the eyes of the patent office (just back-dating copyright 1996 on the source code won't do it). Maybe if you get detailed reviews in a reputable print magazine, or distributed on a dated periodical CD by a reputable third party. The more standard academic way is to publish an article in a reputable peer-reviewed journal, but that may be difficult for more trivial inventions (one-click purchases, etc.).
Want to jack prices up and stiffle innovation? Reduce the window of profitability. Who are these numbskulls?
:T:R:A:N:S:
As far as software is concerned, and perhaps some other idiotic types of IP (like copyright on the "appearance" of a building in a public location), is to ELIMINATE it.
Yes.
This proposal is not a good idea.
Let's look at what is wrong with it, from the point of view of an engineer:
(a) It adds more complexity to the system. We already have the issue that Lawyers are necessary to do anything, that many people do not understand how the existing system works, and that it is goddamn expensive to handle arguments over who owns what. This makes the problem only worse, by adding *another* class of patents to the mix (which are irritatingly presented as being a stepping stool to obtaining a "regular" patent). The only winner in a situation like this is a patent lawyer, who will obtain more billable hours from companies producing software.
(b) It makes software patents even *easier* to get. The problem is that patents cover too many things, not that it's hard to get a patent. There are *huge* swaths of possible inventions that are covered with patent lawsuits for anyone who comes through. Again, only winners here are patent lawyers.
(c) Who gives a damn about "assumption of validity", which is what the author seems to be trying to address? You can already file a counterclaim (though I agree that the economics of this rather suck). Somehow, though, someone versed in the field and the legalities involved needs to enter the picture here and decide whether the patent is valid or not. That sounds a lot like either trying to get the USPTO to fund lawyers or having to shell out even more to lawyers. That's hardly fix for inefficiency in the tech world. The problem is not limited to patents with prior art being granted (though that is *part* of the problem, yes). What about patents that are granted, have never been done before, but simply should not exist in a sane system? The problem is that right now, as long as a patent is not a trivial modification of an existing patent, it's patentable. There is no question of whether or not any expert in the field would produce the same solution in five minutes, given the same problem. *That* is the problem.
(d) It does not eliminate a *single* potential for abuse. The author is very friendly to filers -- he merely offers them more choices (and, actually, filers now have the ability to obtain *both* types of patents to cover "inventions"). We are left with his assumption that filers are benign, and that given a more community-friendly option, they will use it. That is just plain ridiculous. People filing BS patents today are doing so because they can get away with abusing the system. The existing loopholes need to be *closed*. No more patents for something that gets produced during day-to-day work from a techie. It does not reduce the maximum length of a tech patent. It does not make it harder to get tech patents. The only thing it does is provide another "patent pending" like document, which simply makes life easier for companies to lock down more IP. The fact that this is being presented as a solution to patent abuse is absurd.
(e) I disagree with the author that "scrapping software patents altogether is not the solution". I am very, very unconvinced that patents do anything to actually drive true advancement in the software industry. The people coming up with clever new software systems are out putting together said systems, not filling out forms and trying to squeeze settlements out of people actually building new systems. It is cheap to build a software system (compared to, say, constructing factories to build a new type of plow), so the need for a goverment-granted monopoly beyond first mover benefit is dubious. The life of a copy of a software package is short, so it is dubious that 20 years is remotely acceptable for the length of a monopoly in this industry. Software is far more difficult to reverse engineer than anything else in the world. Anyone who sees a new plow design can simply clone it.
Any program relying on (nontrivial) preemptive multithreading will be buggy.
Screw that. It sounds like a patent abusers' wet dream.
No. It was just written *solely* from the standpoint of large patent-producing companies who want to produce a stream of patents to maintain ogliopolies (such as is the case in the GPU, CPU, and hard drive industries).
The concerns that it addresses are those of Microsoft or IBM -- worries that patent-holding companies will simply obtain a bunch of patents and then try to play the lottery with large companies.
It does absolutely nothing for the open source developer (and in many ways, makes his life more difficult). It increases the number of patents instead of decreasing them, making it even less possible for even an expert in the field to know what is patented -- good for an incumbent in a field who cross-licenses with everyone else, awful for a challenger in the field.
It does not reduce the length that a tech patent can last.
The issue of "presumption of validity" is a nonissue from a standpoint of someone who must go to court at all.
This is simply not even remotely a fix for the patent problems. This is patent reform as fits the needs of Microsoft and IBM, not individual engineers who just wish that the mass of patent-filers would simply leave them alone and let them build software without worrying about whether or not their latest system is legal or not.
Here's some proposals *I* have (that, I am sure, IBM and Microsoft have little interest in lobbying for):
*) Prevent patent-holders from obtaining injunctions against the sale of an infringing product, and limit damages to actual direct monetary profit from an infringing product. Result? Open source authors who are simply giving away their effort don't have to worry about what's going on in the corporate world. It would never happen, of course -- Microsoft would quash anything like this long before it hit Congress. It also doesn't protect people like Mandrake, who charge a fee to get a pressed CD.
*) Make someone filing a losing patent infringement lawsuit liable for treble legal fees. That'd put a kink in the willingness of companies to sue (and people to worry about getting sued), if people who were getting falsely sued could *profit* from it. You want to sue based on a patent, make damn sure that you're right before doing so.
*) Allow future patents (it's unreasonable to retroactively apply this, since patent holders would never accept it) to be revoked during a challenge based on a criteria of whether, given the problem that the patent solves, the patent is a logical and immediate solution for someone versed in the field.
*) Allow examples of prior art to be attached to patent applications (not gonna happen -- there are too many) and patents (good idea, and IBM likes it, but not a complete solution) at the USPTO.
What I'd really like to see is software patents just going away. I've yet to see a compelling defense of software patents -- just vague insinuations that they are "necessary for innovation". If you have the ability to produce a real, valuable, significant advancement in software, if this isn't just an attempt to corner a chunk of the market because you filed some papers, you can also almost certainly produce a piece of software and make money on this software.
Any program relying on (nontrivial) preemptive multithreading will be buggy.
There was a time not so long ago that patents were considered to be far more widescope in claims than the more specific nature of copyright.
... well... us humans. Elements or facets of abstraction physics include the actions of abstraction creation and use, such as defining a word to mean a more complex definition (word = definition, function-name = actions to take, etc.), Starting and Stopping (interfacing with) of an abstraction definition sequence, keeping track of where you are in the progress of abstraction sequence usage (moving from one abstraction to another), defining and changing "input from" direction, defining and changing "output to" direction, getting input to process (using variables or place holders to carry values), sequencially stepping thru abstraction/automation details (inherently includes optionally sending output), looking up t
Here is an idea: Lets change the public perception of what is actually what and promote a claim to present a new form of IP protection...to last a short period of time....
Hey wait a minute....wasn't "IP rights for a short period of time" the original creation of the copyright and patent office....IP granting terms????
Hmmm, isn't it like the software industry to reinvent and market as "brand new" something actually old?????
Of course the process of such a "new/old" thing would follow the same evolution....getting longer and longer in terms and less specific.... Just like it has before...
A better direction is to simple revert to the way it originally was in term length. Of course until even that is to long in terms for ever increasing advancement rate.
There is always the nature of the subject matter as to whether or not it actually qualifies for copyrightable or patentability, if either.
What is software but that is of and follows the natural laws of human mentality and the logic of physics in its application of abstraction creation and use.
Of the things not patentable (by the words of the USPTO):
Natural Law
Physical Phenomenon
abstract ideas
these are the three top primary things not patentable.
Mathmatical algorythims fall into the secondary class of what is not patentable, due to being made up of the primary three.
it all begins here:
Physics of Abstraction (abstraction physics)
Abstraction enters the picture of computing with the representation of physical transistor switch positions of ON '1' and OFF '0' or what we call "Binary" notation. However, computers have far more transistor switches in them than we can keep up with in such a low level or first order abstract manner, so we create higher level abstractions in order to increase our productivity in programming computers. From Machine language to application interfaces that allow users to define some sequence of action into a word or button press (ie. record and playback macro) so to automate a task, we are working with abstractions that ultimately accesses the hardware transistor switches which in turn output to, or control some physical world hardware.
Programming is the act of automating some level of complexity, usually made up of simpler complexities, but done so in order to allow the user to use and reuse the complexity through a simplified interface. And this is a recursive act, building upon abstractions others have created that even our own created abstractions/automations might be used by another to further create more complex automations. In general, if we didn't build upon what those before us have done, we then would not advance at all, but rather be like any other mammal incapable of anything more than, at best, first level abstraction. But we are more, and as such have the natural human right and duty to advance in such a manner.
There is an identifiable and definable "physics of abstraction" (abstraction physics), an identification of what is required in order to make and use abstractions. Abstraction Physics is not exclusive to computing but constantly in use by
Also I have been doing some amount of patent reading, and it is quite clear that none of it is written in a way to be of any use: typically, problems get patented rather than solutions, or anyhow the details of how it works are omitted (they shouldn't be, according to patent law) so to this date I have not read a single patent that added anything useful to my knowledge.
Oh and how about the older US patenting system, where patents were valid 17 years after APPROVAL (rather than 20 after submission as it is now), and patents were not published until approval? The trick is that the applicant could deliberately delay the approval of the patent for 10, 15 years, to have the patent come out as a surprise bomb when the subject covered had already become an industry standard (example: microsoft's FAT patent: ever wonder wy it was in the news this month, after so many years?)
It is true that one of the main problems with the patent system today is that the "novel" requirement is hard to define precisely. But instead of making this requirement more defined, Hollaar pretty much suggests that we should just open the floodgates.
These words don't mean what you think they mean. Novelty is probably one of the easiest and best understood aspect of patent law. Although sometime notions, like "inherent novelty" are complex in practice, novelty is the baby exercise. You appear to be confusing novelty with unobviousness, and thus wholly misunderstanding the proposal.
I am still not sure what you are saying. Is it:
Patents are bad.
or
Bad patents are bad.
or
Software patents are bad.
or
Bad software patents are bad.