Patents of Business Destruction

SnapShot writes "Over on Slate there's an opinion article on the Blackberry patent case. Here's a quote: 'It's easy to bash trolls as evil extortionists, to do so may be to miss an important lesson: Patent trolls aren't evil, but rational and predictable, akin to the mold that eventually grows on rotten meat. They're useful for understanding how the world of software patent got to where it is and what might be done to fix it.' "

Comments

I wonder how the trolls think, reading this. :)

[Caspian]

Nothing like waking up in the morning and reading someone comparing you to mold. :)

Re:I wonder how the trolls think, reading this. :)

[faloi]

I was in the military. I've been compared to worse when I wake up in the morning.

Re:I wonder how the trolls think, reading this. :)

[damsa]

I think it's an apt comparision. Mold is also beneficial. Actually, without mold you wouldn't have modern medicine, soy sauce or cheese. I don't know what I would do without cheese. Patent holding companies are not all bad. If patents were wholy owned by companies say Amazon, go gain competitive advantage, they might refuse to license to their competitors like Borders or Barnes and Noble which is in their right. However if a patent holding company were to hold these patents, all they want is license fees thus they are more likely to license these patents to the public. Also patent holding companies are more likely to reword the inventor of the patent. How much does an inventor at IBM get for his services, maybe a few hundred bucks bonus, and then the shareholders get the value. So in this light, patent holding companies doesn't look so bad.

However out of control mold can reek havoc and can turn your house into a toxic zone. Patent holding companies may infact make it so it is risky to do any kind of technology and to get licenses to do so will make startups much more expensive. If you look at google, if the kids there had to pay license fee to some patent company to take their search engine to the public, would they be here today. Probably not.

Re:I wonder how the trolls think, reading this. :)

[damsa]

Mold or patent squatters? I hope you weren't compared to patent squatters, our military deserve far better than that.

Re:I wonder how the trolls think, reading this. :)

[faloi]

I hope you weren't compared to patent squatters, our military deserve far better than that.

No... They weren't *that* mean. Besides, we could've complained to the JAG about that.

Re:I wonder how the trolls think, reading this. :)

[damsa]

Borders is a competitor to Amazon. What happened was Borders.com was set up as a seperate entity from Borders the store so people who buy books online wouldn't need to pay sales tax. The courts ruled that Borders.com and Borders for all intents and purposes was the same company. So borders.com had to change their name or partner with Amazon. Borders the store is still a seperate entity and if they wished to there is nothing stopping them from creating a BordersOnline.com under the same umbrella as Borderstores.com. But you are right currently they are not an online competitor to Borders.

The problem with patents is that companies as long as they are not monopolies can refuse to license their patents. So how likely would Amazon license their one click patent to Corner Bookstore in Small Town USA. Probably not much, because less competition is better. But a patent holding company would favor as many licenses as possible and a license that may cost millions from Amazon may cost Small Town Bookstore a few thousand dollars.

Re:I wonder how the trolls think, reading this. :)

[Da_Weasel]

I thought you were joking at first, but now i'm starting to think you were actually serious.

Saying that these patent holding companies are more likely to licence the patents to anyone is a bit far fetched, and certainly not based on their past track record.

Based on patent holding companies track records over the past few years, especially with software patents what has happened is:

1. Patent holding companies buy up any and all patents as cheaply as possible, usually from failing companies for pennies.
2. Then they keep quite and lay low, not actively looking to licence the technology...
3. Watch the respective market their patent applies to.
4. Wait...and research ways in which they can stretch the limits of this patent to cover as many products as possible.
5. When a sufficient number of lawsuits are possible run as many companies and people through the meat grinder and bleed them dry before anyone with some money decides to stand up and fight.
6. Laugh all the way to the bank with someone elses hard earned money.
7. Start all over again.

This is the life cycle of patents at the patent holding companies. Anything else is just a sugar coated dream....

Re:I wonder how the trolls think, reading this. :)

[damsa]

From what I read these patent holding companies do not go out and bleed the smaller companies dry. They end up asking for a nominal license fee and those that choose to fight are the ones that are bled dry. You are right, I wasn't totally serious in my response. But thereotically patent holding companies would be no different than BMI or Ascap. Not that they are the harbingers of class. But in many ways BMI and Ascap made making art a lot easier. If you want to insert music into your intro to your video game, you look at the catalog, see the price and then you buy it, no need to negotiate personally with the artist. Seemless. That said, I am pretty anti patent laws especially for business method and software patents. But I can see in theory anyways, it may not be all bad mold but just some stinky cheese. Either way though, I aint eating it.

Re:I wonder how the trolls think, reading this. :)

[HiThere]

If I want to insert music into my catalog, I look at copyright lawsuits, and decide it's too dangerous.

Writing your own music is no protection. Courts have found that even trivial similarities are sufficient to make you liable.

But that's music copyrights, not patents. Still, the discussion had drifted into ASCAP, etc.

Re:I wonder how the trolls think, reading this. :)

[mellon]

I used to work for a company that got bled by the infamous Cadtrak. I think we had to pay something like $20k to make them go away. That was a lot of money for us - not enough to bankrupt the company, but enough to pay my salary for half a year at the time. The idea that a "company" is a thing that can be sucked dry, and that there is no moral or ethical problem with doing so, is wrong - real people are affected by these kinds of activities, and real suffering occurs as a result of these petty acts of extortion.

The difference between a patent troll and someone like BMI is that in the case of BMI, what they hold has actual value - someone worked, and created a thing of beauty, and is trying to get paid for it, using a flawed tool, BMI, to obtain that compensation. In the case of a patent troll company, there is no thing of beauty that was created. RIM, whatever missteps they may have made in the litigation process, actually created something and made it work. NTP, as far as I can tell, patented an obvious idea and then tried to get rich off of it, without ever creating anything of value.

So although I personally do not like the way BMI and ASCAP do business, they are much less pernicious than a company that patent things they never actually made, and then tries to extort money from a company that actually did make something of value.

If you want a real picture of a patent troll, compare it to someone who, during the gold rush, would lurk in the background waiting for someone to make a strike, and then stake a claim on the place where the strike happened, or would bushwack the person who held the claim, bury them in an unmarked grave, and then sell the claim to a third party who would actually do the work of taking the gold out of the ground. Sure, the amount they'd charge for the claim might be comparitively nominal, but it wasn't their property in the first place.

Anyway, the Slate article is quite a good article. Should be recommended reading for people who have interest in this field.

Re:I wonder how the trolls think, reading this. :)

[HiThere]

I understand theories that say it SHOULD work as you propose. And I accept that sometimes it MAY work as you propose. (Who would hear about it?) But it's also true that it often doesn't work that way. The companies who do operate in the manner you are proposing are companies like IBM, with a real business ... and then only outside their core business.

Re:I wonder how the trolls think, reading this. :)

[damsa]

I am trying to present an argument for patent holding companies. I am no big fan of the current patent situation but for arguments sake in the most ideal light, they can be good. Personally I would rather see NTP hold a garbage patent than a Microsoft, because MS has an incentive to kill startup companies, whereas patent squatters on the other hand do not, they have an incentive to extract royalties from companies. In your example above, would you rather have one guy kill a prospector and and sell it to another guy, or a mining company kill the guy, not mine it and thus the public gets no gold. In the first place although the rightful person is rewarded the net effect on the public is the same, in the second case, the public has suffered a loss, less gold on the market.

Re:I wonder how the trolls think, reading this. :)

[mellon]

I think that if the only way to get gold is to kill people, maybe we should try to get by without it.

The solution

[aussie_a]

I say we treat patents as if it was rotten meat. Toss it away and go have chicken instead. Now I'm just hoping chicken is freedom in this analogy, because I'm not quite sure to be honest.

Re:The solution

[Slak]

Just be sure you do not "choke the chicken" too much, or you'll go blind ;)

Re:The solution

[zolaar]

I'm just hoping chicken is freedom in this analogy

Do you mean today's version of 'chickens' - i.e., animals whose beaks and talons are removed to 'protect' the chicken from itself and other chickens, and whose feathers are plucked and wings are clipped to both prevent them from escape and ease the task of processing them into something useful? Analogous to freedom?

Aww, I just made myself sad...

How to fix it?

[jpopper]

How to fix it? Where do you start... The whole patent thing with big corporations is diabolical. Take the whole "AOL" and "Instant Messenger" patent/trademark discussion for example - where is it going to end?

Re:How to fix it?

[ajs318]

I can think of a few good places for where to start reforming the system. Demand that the inventor demonstrate a functional prototype before a patent is issued. This always used to be done {a patent could actually be annulled by destroying the only prototype}. A patent application which is not supported by a prototype is nothing but a work of science fiction. Annul any unworked patents after two years. Don't allow people to sit on patents in the hope that someone else will make use of them; force them to make use of their inventions or forfeit the privilege of a patent. Pay a bounty for evidence of prior art which could be had from the non-refundable deposit. This would encourage people to search for prior art which could be used to block patent applications. No patents on mathematics. This should be obvious.

Re:How to fix it?

[db32]

Let me point out why you are wrong, and even thinking in that way is wrong. I only have to take one word out of everything you said to do this..."Obvious". If you have ever worked in, with, or around government work you would know how silly "Obvious" really is. If "Obvious" worked for anything related to government work, do you think we would have even a fraction of the issues we have today. Tax codes, voting, science vs religion in regards to government control, laws...any of them, from the trivial to the controversial are almost all FAR more complicated than required. I will now point how much of a horrible person you are for wanting to put all those poor lawyers out of business! If "Obvious" were true think how many lawyers would be having problems feeding their families!

Re:How to fix it?

[sp3tt]

There is no way you're ever, ever going to stop abuse of the patent system. That is, unless you completely and totally abolish all patents in all areas. No more patents, no more USPTO, no more abuse. As any libertarian will be happy to point out, if you put a gun in someone's hands and give them the legal right to use that gun for whatever their purposes is, you're going to have a huge mess and abuse of power. That's government for you. Patents are unnecessary, morally unjustified, arbitrary and extremely prone to abuse. There is no possibility of ever making an objective statement about what can and what can not be patented, or how long a patent should last. It's impossible. If you say 20 years - I say why not 21 years, why not 20 years and three days? Because you say so? Because the State says so?

Further, patents are legal monopolies and basically an infringement upon property rights. If it is my steel, my wood, I'm going to build exactly whatever I want to build with it. I don't care if you've invented it before, it's mine, mine, mine and you have no right to stop me. Neither does the State. Software patents are even worse. I'm going to put ones and zeros on my disks, and what those ones and zeros do when put through other ones and zeros is none of your business. Get off my property! If you invent some new metal alloy twice as strong as steel, well, congratulations. You own some metal. You do not own my metal, I repeat: you do not own my metal. If I make the same alloy as you do, well, bad news for you. It's called competition. Welcome to capitalism, dude.

Now you say, won't people stop inventing stuff? Yeah right. Ever heard of that invention, the steam engine? Watt's patent stopped others from building better engines, and most of his time and money was used not to build steam engines, but to lobby the government and collecting royalties (See Against Intellectual Monopoly, chapter 1 for a longer discussion of Watt's patent and how it stopped progress.). Further, they stop many new inventions. Just look at Blackberry. So much for patents and innovation. As the old joke goes, if pro is the opposite of con, congress is the opposite of progress. No other organisation has hindered progress more than the coercive beast that is government.

Moving on, the argument that no one will develop expensive stuff is completely false. First, it's just another protectionist argument, one that relies only on what is seen and what is not seen. With patents, you see X dollars being invested in developing Y. Without patents, what would those X dollars be used to do? You have no idea, I don't, no one does. We can't prove that society benefits from X being developed instead of some Z, W or Q. Secondly, the argument shows a huge lack of economic insight. No person can predict the future, or the future economic situation. If so were the case, no humans would act (Rothbard explains this in Man, State and Economy). Ok, so say company X develops some miracle drug. You think company X would need a patent, to prevent free riders, people who rip off the product and sell it cheaper because they have no R&D costs. Ok, well, how are companies Y, Z, Q going to know that the drug is a sucess? Isn't success defined as earning a huge profit? Well, then, when the drug is a success, company X has obviously made a lot of money from it. Arguing for patents because of free riding effects is stupid.

Imagine you're in a race. You try to imitate the guy who wins, to win yourself. However, to know what he does and who he is - you have to let the race progress and let him win. That'll help you, I'm sure. You cannot know who the winner is before he has won, and then it is too late. That's what the free rider argument is all about.

As we have seen patents are no more than arbitrary government monopolies given at the whim of some random bureaucrat, in effect giving someone the right to control what you do with your property. Further, they are an obstactle for innovation, and protectionist. They are clearly nothing else than a pure, counter-productive government intervention into the economy and an abuse of governmental power.

Support property rights, help innovation, abolish patents.

Re:How to fix it?

[erroneus]

I definitely have to concur with the bold assertions.

I especially like the "unworked patents" issue. While I can see plenty of room for abuse with this idea, I think it's pretty obvious that people who attempt to make a living or run a business simply by owning patents on important technology should be discouraged. There are several good examples of this so I won't go into that. But it's hard to respect the notion of "I bought someone's idea and now I'm making a living from it." The notion that a thought or an idea could be considered property is still a bizarre and alien notion to me. It reminds me of an old and short-lived Christmas tradition I had in my family -- we would pour through the Sears catalog for that year and make circles and squares so that our mother could see what we wanted. We got into fights about who wanted it first. "I wanted it first" seems so petty and ridiculous now... and so does the idea of "owning ideas."

People will ALWAYS come up with new ideas. If there was no money in it, they'd still come up with the ideas. People do immeasurable deeds simply for the love of doing it or perhaps hoping to make their mark on the world. Not everyone does anything exclusively for the purpose of making a buck. The Open Source movement/community/'whatever' is testament to that fact as thousands of clever programmers, designers, writers and others have put themselves out there to do whatever it is they want with no plan or intention to make money from it. (yes, some do... but largely, they don't.) And the idea that "people would never invent anything" is ridiculous as surely when one person decides not to publish his work, someone else will also come up with the idea independantly and publish it just for the love of doing it.

Nothing would stop -- things would just get more sane.

Re:How to fix it?

[NewWorldDan]

Demand that the inventor demonstrate a functional prototype before a patent is issued
Ok, I'm down with that. Even a mostly funcitonal prototype that implements the core claims of the patent. The prototype should even be kept for the duration of the patent so that subsequent court challenges have something to compare to.

Annul any unworked patents after two years
Doesn't the functional prototype kind of invalidate this? If they must demonstarte a prototype, the patent has therefore been worked? Or is this an alternative to the functional prototype - have a working model available within 2 years?

Pay a bounty for evidence of prior art
What is this Slashdot obsession with bounties? Haven't we learned yet that these idiotic financial incentives are what get us into trouble in the first place? How about we get the courts to be more open minded about what constitutes prior art as well as applying the proper standard for obviousness.

No patents on mathematics
Why do you hate math so? Someone spends months or years finding a really good way to factor very large numbers, doesn't that deserve a reward of some sort? It's bad enough that the Nobels don't reward math. I think we can keep an open mind about what constitutes an invention. That said, I really wouldn't expect to see much pure math come about that was patentable, however, a lot of inventions are based upon mathematical insights that most people wouldn't see.

Re:How to fix it?

[anothy]

the single biggest problem with patents in my mind is that the term has not been adjusted to keep up with the changing rate of innovation. that is, 17 years on a patent (adjusted about a decade ago to 20 years) was fine 200 years ago when we were talking about new ways to make steam trains climb mountains, but is grossly inappropriate today. patent lifetime should be, at absolute greatest, 5 years from issuance of patent; i'd say 2-3.
along with that is the problem that it's not really appropriate any more to enforce one length for all patents. even just in "computers", for example, 5 years sounds about right for new technologies in chip manufacture, but is an eternity in software design.
separate from this but related on several points is the fact that the current patent process is not transparent. that is, i can submit a patent that you have no way of knowing about - and thus knowing you're infringing - for up to a few years. that's plenty of time to build an entire business today. ideally, patents should be visible from date of filing.
i'd also agree with the common complaint on patents on mathematics, on the principle that they are naturally occurring phenomenon, not true inventions. this eliminates a good number of software patents but still leaves room for truly novel activities. having to choose all or none, i'd back the "no software patents" position, because doing real evaluations of that class of patents is hard and costly, and it's worse for innovation - at least today, if not always - to grant too many than too few.

the most important thing people need to remember, and most of the involved government seems to have forgotten, is what the point of patents are. the constitution is often silent on intent; this is one of the few cases where it actually tells us why it's doing what it's doing. patents exist explicitly to "to promote the progress of science and useful arts".
honestly, i think we need somebody with lots of free time and discretionary income to make a big fuss about this. i believe the current PTO policies are unconstitutional and violate existing Supreme Court findings (see, for example, Diamond v. Diehr, 450 U.S. 175, which excluded patents on "laws of nature, physical phenomena, and abstract ideas").

for point of reference, one of my current responsibilities is working on our company's IP portfolio. i'm quite familiar with the current rules. they're stupid, but in order to remain competitive companies are often forced (by the market, not legally) to play by them. it's unrealistic to expect companies (or individual filers) to simply "do the right thing" with regard to what they're filing, or even to have any idea how to evaluate that.

Re:How to fix it?

[Gorbag]

Consider the lifetime of the patent compared to the inventors lifetime. Inventors aren't living shorter lives, and the idea that a major breakthrouh should provide enough income for some large fraction of the inventors lifetime seems to me to be something that should not be lost.

No, the real harm are application patents - these are patents that don't describe new technology, but just the application of technology. The patents in this discussion would be in that category, as would a lot of patents that help "lock up industries" to a particular holder. If it doesn't matter, in detail, HOW you do something, just THAT you do something, I would call that an "application patent" and I don't think they should be allowed.

Re:How to fix it?

[budgenator]

I've often wondered what would happen if not only were a working prototype required, but the source code to produce the working prototype should be placed in the public domain. My hunch is it would pretty well squelch most software patents.

Re:How to fix it?

[ajs318]

First let me say I don't hate mathematics at all. In fact, I took my O-level maths a year early, did additional maths alt. O-level in my fifth year {the last year of O-levels, before the introduction of GCSEs}, then took my A-level maths a year early and did Further maths in my second year sixth -- so I have four qualifications in the subject, plus a B.Eng. which {it's been said} contains just as much mathematics as a mathematics degree.

Mathematics belongs to everyone, and it's simply not reasonable to patent it. If you can patent a way of compressing data {which is really just a mathematical operation -- or a series of mathematical operations, which can be taken to the nth degree}, then can you patent more abstract mathematical operations? Everything in Nature is representable mathematically. Think how much you would owe in royalties if someone patented the function y = sin(x) ..... though they'd end up splitting them with whoever owned the patent on y = cos(x)! And then what if someone owned a patent on the differential equation d2y/dx2 = -y? It's ridiculous even to think about it. Could you patent multiplying a vector by a vector, and getting a scalar? You might own every joule of kinetic energy in the world!

Someone spends months or years finding a really good way to factor very large numbers, doesn't that deserve a reward of some sort?

The only reward it deserves is the satisfaction of having done it, and to have your name associated with it for the duration of living memory. It certainly does not deserve exclusivity. Patents on mathematics are about the ultimate dog-in-a-manger-ism.

Beside which, the method existed, in its own abstract little sort of a way, even before you discovered it or found a use for it.

Re:How to fix it?

[anothy]

... the idea that a major breakthrouh should provide enough income for some large fraction of the inventors lifetime seems to me to be something that should not be lost.

ah, but that's never been the idea! at least in the US (in many other jurisdictions, too, but i can't provide exact references and wording), patents exist explicitly to "To promote the Progress of Science and useful Arts", as per the Constitution of the United States, Article I Section 8. granting monopolies on inventions for a limited time is a useful way to hit that goal, but should only be employed to the extent that it remains useful to that goal. patents (like copyright, but that's a separate discussion with other issues involved) shouldn't be judged relative to the inventor's lifetime, but rather to when an equivalent "invention" would have come around. as the rate of innovation increases, this length of time decreases; thus, patent terms should decrease correspondingly.

this is not a definition i'm making up, it's the one from the Constitution. it's been restated in US laws and explicitly upheld by the Supreme Court repeatedly (although not uniformly).

Re:How to fix it?

[ajs318]

This sounds like "Age of Plenty" economics talking, and it's a lot different from the "age of scarcity" that should have come to an end years ago -- except that those who stood to lose the most from the transition from scarcity to plenty started a war just to keep the scarcity going.

In the Age of Plenty, everyone will be allocated an equal share of the sum total of the resources available to Humankind {today this means the Earth's resources, tomorrow who knows?} -- but which must be given back in full when they die. Obviously this means you can't do anything like burning oil, because then you can't give it back -- but things like metals can be melted down when done with, and you can use up all the plant and animal products you can grow on your allocation of land.

It's all very different from what we have today, and it's almost understandable that people would seek to prevent it; it's the greatest change that Humankind has ever faced. I think a Stone-age hunter-gatherer probably would understand today's society easier than someone today would understand the coming Age of Plenty. But that's still no reason not to press ahead.

Re:How to fix it?

[sp3tt]

Actually, the argument against intellectual "property" is largely based on the difference between scarce and abundant resources. An idea is not a scarce resource, tangible objects are. Your use of a car excludes my use of it. Therefore, there has to be private property rights, to allocate the use of scarce resources. Ideas do not suffer from this, my use of, for example, a one-click ordering application does not exclude Amazon.com's use of it.

Re:How to fix it?

[wkk2]

I also believe that patents need to have different expiration dates based on the subject matter.

Drugs probably should have a date linked to regulatory approval. So there might be a different expiration date for human vs. veterinary medicine. It might even be wise to link the expiration date to liability reform. Liability, for the inventor, might be reduced or capped if the patent is dedicated to the pubic early.

Maybe the term length should also be linked to capital investment. If a company invests billions deploying an idea for a new power plant, maybe the term should be longer. Don't invest and your patent expires.

Given corporate greed and politics, I haven't a clue on how to implement any reform.

Much to the detriment of future generations, we are probably stuck with perpetual copyrights. We definitely don't want to go that direction with patents.

Re:How to fix it?

[Elektroschock]

It is a matter of power. Get organised, build up a strong US movement against software patents and they will be history soon.

Note that we strongly need a Us campaign against Software Patents as the USPTO tries to export its crappy regulation to other parts of the world, see trade agreements with the Americas, see the swpat in india, australia etc.

http://lists.ffii.org/mailman/listinfo/us-parl

Re:How to fix it?

[mavenguy]

(Damn Slashdot for posting a patent story just as I go away from the computer for a few hours)

I can think of a few good places for where to start reforming the system. ... No patents on mathematics.

Well, this is already law, at least as applies to converting BCD data to binary, Gottschalk v. Benson. In this case, the Supreme Court reversed the Decision of the Court of Customs and Patent Appeals, the predecessor of the Court referenced in the article. The CCPA decision reversed was, itself, a reversal of the Patent Office Board of Appeals decision upholding the Examiner's Final Rejection of this method as not being statutory subject matter able to be patentable, 35 USC 101.

Basically, the Supremes bitch-slapped the CCPA, which stumbled for a while (IIRC, they upheld a rejection for analyzing oil prospecting data something like in re Christiansen(sp?)), but soon decided to narrow Benson as much as possible, reversing the Patent Office Board time after time (for example, a method involving natural language processing was distinguished from Benson since it was dealing with natural language, not mathematics). Basically any non-mathematical data manipulation passes muster under 35 USC 101, according to the CCPA, and it's successor, the Court of Appeals for the Federal Circuit, which inherited the CCPA's judges and case law.

Re:How to fix it?

[CDarklock]

I keep talking about this, but nobody listens.

http://www.darklock.com/blog?p=55

The basics: make the patent holder prove the validity of the patent when challenged, and pay for any challenge they lose. If they win, the challenger pays.

This makes it expensive to lose a patent challenge no matter which side you take, so nobody will want to lose one. A patent will be applied for only when the company feels confident it will not lose a challenge, and challenged only when the challenger feels confident that the patent is invalid. Over time, the system heals itself.

Re:Funny definition of useful

[critter_hunter]

Yeah, patent trolls are not evil, they're just greedy, devoid of morals and will do anything to further their ambitions

Oh wait, THAT'S LIKE THE VERY DEFINITION OF EVIL. What kind of idiot writes those articles?

Freedom Range Chicken

[Fr05t]

I'm getting a patent for Freedom Range Chicken.

Re:Freedom Range Chicken

[damsa]

Is a patent for French Fried Chicken too obvious?

Ducks.....

Re:Freedom Range Chicken isn't Free

[kernelblaha]

Freedom isn't free It costs chickens like you and me. And if we don't all chip in We'll never pay that bill

Expect the worst

[JanneM]

I suspect economical, political and social systems are best built the same way you do strategy analysis.

Forget about maximizing the best possible outcome in the best possible world. It's not going to happen anyway, so why worry about it? Instead, focus on the worst possible outcome, and create your system so as to minimize that. Any outcome that turns out better than that pessimistic minimum is then just a happy bonus.

So, make rules for patents that discourages fluff patents and extortion (you need to deposit a substantial sum that is returned upon a successful grant, but witheld if turned down?). Make it reasonably easy to challenge patents when invalid grants have slipped through, but that discourages vapid challenges (loser pays, for example).

Re:Expect the worst

[ficken]

The problem comes when you are using hundred year old ideas - patents were a result of trying to protect innovators and exploration of progress. Now, the business of Patent Hoarding has become lucrative. Its no longer about protecting innovation. Its about sucking up as many ideas as humanly possible in order to take full advantage of capitalism.

This (IMHO) is a downfall of capitalism - businesses no longer compete by making a better product, they compete by leveraging laws and other details against any existing and would-be competitors. If you can manipulate the rules, you do not have to play as hard.

Re:Expect the worst

[JanneM]

Design the system so hoarding doesn't pay, then. That's the idea of designing for the worst case. How, in this case, I don't know - but there are any number of possible ways to discourage it. Allow no more in yearly patent royalties per licensee than the owner is earning from the technology in the patent themselves; make it legally binding to "sell" the use of the patent for a set one-time fee once the technology has become an ISO standard (that would encourage the use of standards as well) - there's many ways.

The thing to keep in mind is to focus on minimizing the downside. If, after lots of trying, you can't make for a reasonable downside and still make patents attractive to use, then perhaps pantents aren't the right tool for the problems we're trying to solve.

Re:Expect the worst

[swillden]

patents were a result of trying to protect innovators and exploration of progress

Not exactly. And it's worth understanding the purpose of patents when trying to think about how the system can be fixed.

The purpose of patents was to promote progress by encouraging inventors to publish the details of their inventions. In a world without patents, inventors had a strong motivation to keep the workings of their inventions (which were physical devices) as secret as possible, so that others couldn't duplicate them. The notion of patents was introduced to open up (the word 'patent' derives from the latin 'patere', which means "to be open", and scientific and medical communities still use the term to mean "open", or "free of obstruction") the details of inventions so that others could learn from and build on the ideas. Inventors recieve a temporary monopoly on their idea in exchange for publishing the details. The bottom line, though is that patents are supposed to primarily benefit the public, not patent holders. Any patent regime that fails that test is broken. The ideal patent structure is that which generates the greatest flow of ideas to the public, and it should be obvious that this optimization problem is one that requires constant retuning as the structure of society and the nature of research changes.

The same is true of copyright, by the way. Copyrights should primarily benefit the public, in the form of increased flow of materials into the public domain. Any benefits that accrue to copyright holders are mere byproducts of the primary goal. Like patents, copyrights require constant tuning to ensure that they're providing the maximum benefit to society. Like patents, the current copyright system does nothing of the sort.

Re:Expect the worst

[Dausha]

"This (IMHO) is a downfall of capitalism - businesses no longer compete by making a better product, they compete by leveraging laws and other details against any existing and would-be competitors. If you can manipulate the rules, you do not have to play as hard."

No, this is an example of monopolism run amok--not capitalism. The whole premise behind patents (and copyright) is that the government grants a limited-term monopoly to encourage development of an idea. After all, once an idea is out there, it is easy to exploit--so the monopoly encourages a fellow to make good on his idea. That is, patents are an artificial creation to protect an idea from capitalism.

It is contrary to the interests of good economy to allow monopolies (or oligopolies, IMO). It's been a few years since I took my economics class, but monopolies are not optimized the way true capitalism would be--the price is artificially inflated--or something like that.

Re:Expect the worst

[Kirth]

This (IMHO) is a downfall of capitalism - businesses no longer compete by making a better product, they compete by leveraging laws and other details against any existing and would-be competitors. If you can manipulate the rules, you do not have to play as hard.

Monopolies are the enemy of the free market. Funny enough the same people who don't want the government to interfere with business are the same ones lobbying for governement-granted monopolies.

Re:Expect the worst

[jafac]

It's not the downfall of Capitalism.

It's the downfall of Western Civilization, the Rule of Law, and the concept of a Constitutional Democratic Republic. As long as the right to spend money to influence the political process is equated with an essential liberty, then human greed can subvert it for it's ends, rather than the ends for which it was intended.

Re:Expect the worst

[Burz]

Except there is this inconvenient little detail that it is been largely the freemarket ideologues who insist on maintaiing a naive/permissive attitude toward monopolistic tendencies in the private sector. Government intervention (hence public accountability) is always portrayed as an abomination, often with maudlin undertones from an Ayn Rand novel.

Unless, of course, that intervention is by the military into the lives of millions of foreigners to secure resources for the economy at home. Then its time to wave the flag (literally) after every commercial break.

Re:Expect the worst

[Burz]

Tyranies are supposed to the be enemy of communism. But definitions on paper do not make something actually true.

Any society that insists a) on permitting only ONE organizing principle, and b) on turning a blind eye toward its own worse tendencies, is "cruisin for a bruisin".

Re:Funny definition of useful

[CastrTroy]

I think that what they are saying, is that although we don't like patent trolls, they are necessary to show us just how bad the patent system really is. It's kind of like saying drunk drivers are good for teaching us how unsafe our cars really are.

Almost there

[hummassa]

But "annul any unworked patents after two years" == "no patents will ever be used". Because: Inventor "I" invents something, but does not have the $$$ to build the thing (I know I don't have the $$$ to build a cold fusion reactor, even if I had the knowledge to do it). The Corporate Cabal just sits down, refusing to help for two years and ta-da... the patent is annulled, now they will win the big $$$ without rewarding the inventor at all.

Re:Almost there

[marcosdumay]

Agreed. The hardest part of any patent reform (with good intent) is to differentiate the patent trolls from the small researches.

Re:Almost there

[dwandy]

The Corporate Cabal just sits down, refusing to help for two years and ta-da... the patent is annulled, now they will win the big $$$ without rewarding the inventor at all.

There's enough money out there to eliminate this possibility in a very real way. The most you might see is a diminished return to the inventor if those that might pay the most are more willing to sit on the sidelines and let someone else p(l)ay.
The reality though, is that if I come up with some kind of invention that makes another obsolete then the current players will step up and buy in since they don't want to become obsolete along with their product.

I actually like the pp's ideas:
Since the 'deal' is that society grants protection in exchange for publishing for the purpose of promoting progress* it makes sense to me anything not being used gets immediately pushed into the public realm, and will (possibly) be used as a basis for something new that (might) be used much more quickly than if you had to wait 20yrs...

*most people seem to be mistakened as to the purpose of patent protection. It's not to enrich the inventors in a monetary way, but rather to enrich society with more innovation...

Re:Almost there

[NickFortune]

The Corporate Cabal just sits down, refusing to help for two years and ta-da... the patent is annulled, now they will win the big $$$ without rewarding the inventor at all.

Nope, don't think so.

Look, suppose you're a small to medium scale venture capitalist, maybe 10 million to invest in the right project. If someone comes to you with a patent and you say "no thanks I'll wait" you're going to be competing with the multinationals, who will use control of channels and superior marketing budgets to freeze you out.

On the other hand, if you invest, you get 50% of the pie. Assuming you have faith in the product, it's not a difficult decision.

Re:Almost there

[arkanes]

If you don't have the money to build a cold fusion reactor, you don't know that your idea works. Check out all the "free energy" crap (and some of it even manages to get patented) for some great examples of people just making shit up. The purpose of patents is to promote progress and reward society. If you can't or won't productize your patent and give society the benefit of it, then you don't need to have it - the patent protection (and the money from it) can go to someone who is actually using the patent.

Re:Almost there

[ajs318]

Once "Inventor I" has an official description of their invention, which combines the two elements: proof that it works, and a temporary monopoly on its use, they can go and show that to any company. If the first one doesn't want to know, they can try another, and another, and so on. By looking at the patent, they've already committed themselves not to exploit the invention commercially as long as the patent remains in force. Of course, it's possible that nobody would be interested, and the patent would lapse. But then anyone could build the invention, without the protection of the patent. So, by waiting out the two years as you suggest, a company won't have to pay the inventor any royalties; but they also miss out on the best part of twenty years without direct competition. And every moment of those two years adds to the risk that another company will be interested in the invention, licence the patent and hold them out of business for at least 18 years.

If you had the knowledge to build a cold fusion reactor, you can bank on someone wanting that, and wanting it to themselves for as long as possible.

Re:Almost there

['nother poster]

Yes, but it does so by giving the creator monopoly control of the invention for a fixed period of time but requiring that the invention be made public. Whether they can successfully exploit the invention or not is immaterial. If you take away that motivation by saying that patents revert to the public domain in an extremely short timeframe if they aren't successfully exploited, more inventors will treat their inventions as simple trade secrets which are protected by law and do not revert to the public domain. Someone would have to steal the trade secret and publicize it to make it public domain, but then the whistleblower would be subject to civil and criminal prosecution. This is a step backwards if you ask me.

Patent law is in dire need of reform, but patent laws are supposed to foster creativity by giving the inventors a chance to profit from them, whether it is emotionally, socially, or monetarily.

Re:Almost there

[ajs318]

Suppose A invents something but keeps it a secret. Then B comes along, and invents the same thing completely, and demonstrably, independently of A. Now B is free to apply for a patent and seek backing -- leaving A in the lurch, unless A can prove to the satisfaction of a court that B stole A's secret. Which B didn't, because B invented it independently and didn't even know of the existence of the secret.

That's what would stop people from keeping things secret: the fact that inventions sometimes cry out to more than one person. How about Joseph Swan and Thomas Edison? Alexander Graham Bell and Elisha Gray? Hell, the second I heard that someone had invented a fridge door that could be opened from either side without mucking about swapping hinges and handles over, I knew exactly how to make one. But I don't expect anyone to believe me on that one :)

Re:Almost there

[dwandy]

Whether they can successfully exploit the invention or not is immaterial.

I agree - it's also impossible for any specific inventor to know in advance if their 'exploit' will be successful.

If you take away that motivation by saying that patents revert to the public domain in an extremely short timeframe if they aren't successfully exploited, more inventors will treat their inventions as simple trade secrets which are protected by law and do not revert to the public domain.

Since the odds of more than one person independantly arriving at a similar solution when faced with the same problem is near 100%, keeping trade secrets doesn't necessarly help an inventor. While the exact details (a comma here, a comment there) might differ from implementation to implementation the patent covers off a reasonably broad solution explicitly to prevent this.
So I guess what I'm trying to say is that if all you use is trade-secret you will have competitors very soon.

If you use a patent and then discover that no one wants to buy your product, then, well, what do you care if it falls into public domain? There are two possibles here:

• You hold the patent for 20yrs and it never gets used. Upside? None. Downside? Society was deprived that someone else could in fact make use of it.
• You hold a patent for 2yrs and it never gets used. Upside? It falls into public domain after 2yrs, meaning that troll lawsuits decrease, patent searches are faster/easier (less to parse) and people can more quickly build upon your original idea to create something else (which will be subject to the same conditions). Downside? None.

Let's keep in mind that patents in use would continue to be protected: so we're just talking about cleaning up the garbage...it's estimated that 90% of patents are crap, should never have been granted and/or are not in use. This provision would mean that these garbage patents only exist in the system for 2-yrs - not 20.

Re:Almost there

[AndersOSU]

That's true in the most places, where the first to file is awarded a patent, but not in the US, in theory anyways. If an inventor A can prove to the court that he invented something before inventor B came up with it completely, and demonstrably, independently of A. Inventor A still gets the patent, provided he files within a year.

See this

Re:Almost there

[mrgreen4242]

I always figured one way to (help) do this is increasing the fees based on the number of patents the person or company submits in a given time period, say a year.

Currently patent filing fees are anywhere form $75 to around $500, depending on the type of patent and the status of the submitting company. I say get rid of the "small entity" category, and the various types of patent applications, and go for a unified pricing structure. Everyone gets one freebie a year. The next one in $100, and the next $200, then $400, $800, $1600, $3200, etc etc. This will make IBM or MS's 3000th patent this year (not at all unlikely for either of them) cost about $9 million... not a whole lot of money for them, something they could afford but not unless they really really really thought what they were patenting was worthwhile. Plus, small inventors would get to patent one thing free, which is good for innovation in general, and even five inventions a year would only cost them $700, not really breaking the bank.

Another thing I would do, as mentioned, is expire patents quicker. If you haven't built it or licensed it to someone in 2 years, then you're SOL.

The last thing I would change is make patent enforcement more like trademarks. If you don't defend it then you can lose it. This would stop stuff what's going on with Blackberry... how long have they been operating this service? Seems like at least 5 or 6 years, probably close to 10 though. And this company just now decides to sue them? They were just waiting till someone built up enough cash for them to get a payoff on, not protecting their "intellectual property". Bah.

Re:Almost there

[marcosdumay]

The incresing prices seems to be a good idea. Even if the researcher needs more patents, he can have them. And it punishes big companies, who gain much more from current laws that small people. But notice that you are not identifying a troll, you are fighting another problem, that is big companies getting lots of low value patents to monopolize markets.

But I don't think the other two would work. A small reseacher can't know about people violating his patent because the way things work are not public. You can expect people to defend their trademarks because names are public information, but no company goes out saying that it violates your patent.

Also, the GP have already showed a (very common) situation where finishing not produced patents won't work well.

Re:Almost there

['nother poster]

If someone is willing to use the invention after it falls into the public domain after only two years, then it was valuable, they just were too fucking cheap to pay the inventor and figured that two years wasn't too long since it would take most of that to arrange a production line for the product. Corporations get profit, small inventors get screwed and disalusioned. Glad you are on the side of the Corps and want to stifle innovation by all but the large corporations. By the way, while a patent is in force, you can improve on it even if you don't hold the original patent. Since it has to be disclosed as part of the filing everyone is free to improve upon it, it's just that to use your improvement, the manufacturer would have to pay both parties a license fee. BTW not all license fees are in money.

Re:Almost there

[ajs318]

Now, that's just broken. You can't prove when something was invented. Was it the night someone had a dream with the idea in it? Was it the day they started work building it? Or the day the prototype was first tested and found to work? None of these events would be officially recorded, and could be falsified far too easily {most camcorders allow you to set the date and time to anything you like .....} There is an official record, however, of the date that you take your paperwork to the Town Hall, Patent Office or wherever; in fact, there would be an official record if you phoned them up in advance to tell them you were coming with an invention.

Going by date of filing is the only really fair way to award patents. It encourages people to file patents as soon as possible -- which, of course, means that they will expire and pass to the Public Domain as soon as possible. And getting inventions into the Public Domain is the real intent behind the system -- the "reward" of temporary exclusivity is a part of the means, not the end.

Re:Almost there

[AndersOSU]

Which is why any serious inventor, or any company R&D orginization keeps maticulous records. Notebooks signed, dated, and witnessed are common practice.

Re:Almost there

[ajs318]

But however meticulous these records may be, they are still falsifiable; the important records are all internal to the company. Whereas, the date of filing at the Town Hall is not falsifiable: both interacting parties {the inventor and the clerk with whom they deal} have separate, independent records of the event. That's why the "first-to-file" system is preferred in the civilised world.

Isn't it ironic?

[BarryNorton]

The irony of the patent system is that while it's relatively easy to get a patent, the vast majority of the assigned patents are completely worthless.

"It's like raaaaaaaain on your wedding day..."

Fix it?

[Black Parrot]

How are you going to fix it, when the lobbyists who run the country think it's great as it is?

Re:Fix it?

[anothy]

that's a defeatist attitude. which wouldn't be a problem in itself, i guess, but i think it also happens to not be true. there's a very large number of very large companies (think Microsoft) that are calling for patent reform. they're not all saying the same thing at the moment, but it's at least obvious that not everyone the government listens to thinks the situation's fine and dandy.

Re:Fix it?

[patmfitz]

How are you going to fix it, when the lobbyists who run the country think it's great as it is?

Just take it up to the next level:

It's easy to bash [lobbyists] as evil, to do so may be to miss an important lesson: [lobbyists] aren't evil, but rational and predictable, akin to the mold that eventually grows on rotten meat. They're useful for understanding how the [U.S. Federal Government] got to where it is and what might be done to fix it.

Re:Fix it?

[Alsee]

there's a very large number of very large companies (think Microsoft) that are calling for patent reform

No, that's a manipulative political ploy.

They are claiming they want "patent reform" and calling for essentially procedural changes to divert any political attention and control any legislative action. By calling for "reform" themselves they create the illusion that they are on the side of fixing the patent problems. They position themselves as the "reasonable compromise" position for fixing the patent problems. And then anyone who actually wants to fix the fundamental problems.... anyone who actually wants to deal with the fundamental software patent and business method patent issues... they get painted as radicals. By pushing for their own "reform" package on basically proceedural issues they get to ensure that there is no change to threaten the software and business method patents that they want to protect.

The Microsoft proposal is to change the rules from giving the patent to the inventor, to insted give the patent to the first person to file a patent application. They also want the patent applications to be published, and people could read those applicatoions being reviewed and could submit prior art evidence to th examiner. The idea is that some of the patents with existing prior art will be invalidated sooner, in the application stage rather than later in court. Of course the general public won't be reading thses published applications - companies like Microsoft will be reading these applications.

But the real issue is that NONE.... NONE of the changes actually change what is and is not patentable. That is their goal - to ensure that there is NO CHANGE in what is patentable. They want to change who gets the patents, and they want to somewhat reduce the number of invalid prior art cases that get granted and then invalidated. They do not want to do anything to reduce the number or types of of bad patents that are granted and are upheld as weapons in court.

-

Re:Fix it?

[Alsee]

How are you going to fix it, when the lobbyists who run the country think it's great as it is?

Well duh! Stand up and vote in different people to run the country!!

...

What do you mean we don't get to elect our lobbyists?

-

Re:Fix it?

[cyberformer]

There are two big problems with the patent system. There are patent trolls that do nothing except sue real companies over trivial or overly-broad patents. Then there are patent cartels, where large corporations negotiate cross-licensing agreements to lock out smaller competitors (and open-source, in the case of software patents).

The large companies like Microsoft want to eliminate patent trolls, but (obviously) not patent cartels. As an added bonus, their reforms will also remove any remaining protection that patents offer to small companies or lone inventors who really have invented something.

There is nothing wrong with the 'patent troll'

[RembrandtX]

There is nothing wrong with the 'patent troll' that couldn't also be called 'evil' in laywers, doctors, or any other learned profession.

if by 'patent troll' the author means people who buy up neglected patents, and then enforce them, how is this bad ? Its no different than some real-estate agents who buy up crappy houses, give them the once over, and flip them for profit. One man's garbage ...

If the author means 'people who file friviolous patents', thats alread self limiting. Its either a very time intensive process to write a good broad patent, or a very costly process to have someone do it for you. A non broad patent isn't very enforcable except in the EXACT case that it states. The average patent out there has fees associated with it that are well above 15k over the life of the patent.

Its not like someone just sends in a document, and *poof* they have a patent for 25 years. You have fees all along the way until the patent expires. Assuming the patent even gets granted and is novel.

What people don't seem to realize is that for ever RIM-esque patent case, there are thousands of infringements that never even get discovered or enforced. [either due to cost or time or neglect]

There are very large companies *cough*-*cough* ebay *cough* *cough* Microsoft *Cough* that have been charged with several large patent infringement cases, and simply paid out to the inventors listed on the patent. Or bought the rights from them. YEARS after the fact.

There are companies out there who's entire product lines infringe on patents held by private inventors, guys like you and me in our garages, who can't do anything about it because of the legal fees. I mean, what can one little guy do against a company that has 50-60 million in sales every quarter .. with *HIS* idea.

The reason patent trolls exist isn't because they are 'evil' or 'money grubbing'. Its because problems like this exist, and they are willing to either step in to help enforce patents, or willing to purchase the patent themselves and take all the risk with the rewards in mind.

But to sugges that we not allow patents to be filed for some of the reasons mentioned here, like non functiong prototypes etc .. why not just cripple the U.S. technology growth even more.

Re:There is nothing wrong with the 'patent troll'

[0xdeadbeef]

That's exactly the convoluted logic that an ambulence chasing lawyer would use. You blame the system for allowing people to exploit it. Do you give the same free pass to spammers and malware authors? "Don't blame these troubled youths, blame Jon Postel and Bill Gates!"

Re:There is nothing wrong with the 'patent troll'

[RembrandtX]

Are you suggesting that instead, a private inventor who holds a patent that he cant possibly enforce due to money reasons, should just give up his rights ?

The systems isn't the problem here, its the 70+ years of people not having the ability to do proper due dillegence while declaring a patent novel.

*gasp* there are patents out there that were issued by the USPTO that infringe on other patents, simply because the people filing the 2nd patent didn't have the resources to make sure ALL of the other 7 million patents on file don't infringe.

As for 'patent trolls' (ambiguitious term) being associated in the same bracket as spammers and malware authors .. i believe the term is malicious intent. A 'patent troll' is normally a patent attourney, and to make any money whatsoever, one who can see the value in the patents they buy or licence. Last I checked, you didn't need a masters degree to write spam.

Re:There is nothing wrong with the 'patent troll'

[ErroneousBee]

There is a reason Microsoft and Ebay didnt license the patents, and then just payed out on them when challenged. Its because this is just the way you have to deal with the patent system with its millions of potential infringements waiting for your lawyers attention.

You cannot build a non-trivial peice of software without falling foul of a load of something obvious - on a computer patents like one-click or the infinite subtle variations on LZ compression. So the only way to actually get anything built at all is to ignore the whole thing and let the lawyers sort it out later.

The only difference between these two (Microsoft and Ebay) and smaller companies is that they can afford to pay up, whereas a smaller company will end up going bust. Someone like RIM is probably on the threshold of being big enough to survive the patent shark pool and will splash about a bit before getting eaten.

Re:There is nothing wrong with the 'patent troll'

[HiThere]

Well, I *do* blame Bill Gates. Is that any consolation?

Date of filing,not invention

[Flying pig]

Where the USPTO is out of whack with the rest of the world is that the US enables submarine patents by working to date of invention, not date of filing. (The European patent office allows cheap early notification of a patent to get round the potential cost issue.) Date of invention is an inducement to fraud because it is easy for Big Corp to fake or modify documents, especially as the whole idea is that these documents are secret as otherwise the patent is in the public domain. An idea originally intended to help small inventors in days when transport and communications were poor s completely obsolete today, but encourages forgers, lawyers and IP practitioners to sit on potentially patentable ideas and do nothing, hoping that someone else will do the work of putting them into practice whereupon they can establish a patent.

So yes, I agree with your proposals but they don't go far enough.

Re:Date of filing,not invention

[SeekerDarksteel]

And how is first to file any better in the long run? If the PO allowed for cheap and easy filing so that a small research house could file as soon as possible so that another company cannot hijack their patent you've created an entirely new problem. Large corporations will attempt to patent anything and everything because they will be afraid that someone else will come along and see an idea they have that the corporation does not think is patentable or novel. That other person then goes, files a patent, and boom, the corporation now owes liscencing fees on their own idea. In first to invent they could hold up their idea and show that they had it years before someone else tried to come along and patent it. Any attempt to discourage mass filing of junk patents (e.g. penalties for rejected patents) will make the entire process completely arbitrary as any potential filer will have to make the decision between risking rejection and having someone else patent their idea. As a result, the PO would be flooded with even more junk patents while making profiting off of someone else's idea even easier.

Re:Date of filing,not invention

[NewWorldDan]

Really, to be workable, a patent needs to be based on date of publication, but prior art must be based on date of invention. IE, if person B invents the same thing as person A before person A's work is published, the invention is therefore not patentable. If person B can reasonably claim that they were completely unaware of person A's work, they should not be held for infringement.

Re:Date of filing,not invention

[budgenator]

Date of invention is an inducement to fraud because it is easy for Big Corp to fake or modify documents,
Proof of the date of conception, is a bit more difficult to establish than your giving it credit for. Firstly there are cronological journalized lab books, both hand written and computerized which alows times stamping, if I have what I think is a good Idea, I can type it up on the computer, do a md5sum on the file and publish the checksum in a news paper and save it. This is almost, perfectly unforgable. Frequntly people send copies to them selves via the post office giving them a dated postmark on the envelope that can be opened in court; traditional but not as good. I just don't think that a patent should be awarded to the person that wins a race to the lawyers office.

Re:Date of filing,not invention

[js_sebastian]

It seems to me that what you suggest would imply that anything not filed as a patent application would not count as prior art..

So everyone would have to attempt to patent every stupid little concept in their products/research to avoid someone else doing it. Right now at least if you have a patent on X but my product doing X has come out before your patent was filed, your patent is void (should have been denied by patenting office, and will be in court if you try to sue me).

Stop handing out "business method" patents

[Jivha]

While patent reform may be far too complex a beast to be tackled in one comment(or even a whole post+comments), I think one place to begin must be patents granted for "business methods". From the article:

"For most of U.S. history, patents had traditionally been issued in tangible objects, like monkey wrenches. For years, the courts and the PTO took a hard line against granting patents on intangibles like software or "business methods," based perhaps on the instinct that such inventions are too abstract and might cause economic damage.

All that changed in the 1980s and '90s, when Congress concentrated patent's appellate duties in a single court--the Court of Appeals for the Federal Circuit. Over time, that court changed course on software and other questionable areas of patent, transforming the system from one that was highly conservative to one that's much more liberal."

I sincerely think we must abolish all patents on "ideas" and "methods". The whole notion of a corporation patenting a way to do business seems absurd and completely against the notion of free market competition. At the rate that we're going, pretty soon we'll have a stage where any person wanting to start a new business will need to purchase a set of licenses from corporations, not counties/states!

Another thought would be about how to resolve the multiple patent regimes around the world. As the Internet and globalization break down geographical barriers, we need a patent system(if at all) that will serve the entire world. What happens if a person in China or Brazil originally comes up with an idea for a new business? Will he need to check with the USPTO to see if it has been registered in the US? In Europe? Why? Does the USPTO check patent histories in other countries?

Re:Stop handing out "business method" patents

[TarikJax]

You ask a very interesting question, not least because ideas and methods are unpatentable in so many countries around the world. The US is in the minority in allowing this economically stifling business practice.

Everything is potentially 'Useful'

[digitaldc]

They're useful for understanding how the world of software patent got to where it is and what might be done to fix it.

Just like Viruses, Worms & Malware are useful for Anti-Virus/Spyware companies to analyze how they got to where they are, and what might be done to fix them.

Guns don't kill people...

[ezpei]

So patent trolls don't kill innovation, but the USPTO does? Or is it patent trolls don't kill innovation, but patent law does?

Nope. Blame here isn't mutually exclusive or singularly exhaustive. They're all crap.

Just like ISPs, CAN-SPAM and spammers themselves are all to blame for the 50+ messages I have to clear out of my inbox every morning.

A case study in business, law, and government...

[ursabear]

I think that the issues that are endemic to the patent system in the U.S. are really a function of the combination of business (how can we protect our hard work), law (the rule of law is sometimes very academic - how can you protect one without protecting another - what is the definition of useful), and government (constituents and lobbyists want "protection" to foster innovation - government reacts by fiddling with the law).

Throw into this mix patent squatters (think of it this way: some folks buy internet domain names (that are company/product/identifiable names) not for themselves or for their own uses, but to hope that someday, some company will pay large sums for the privilege of having the given domain name - now apply that idea to patents). In addition to patent squatters, there are true trolls - the folks that patent ideas that they can't even hope to produce or innovate.

What's the solution? I don't know that there is a simple solution at all. Market forces, billions (trillions?) in investments and in speculation are at stake, as well as jobs, ideas, and growth of economies. The one thing I do know for sure is that reform often hurts, but is usually worth it. Perhaps concentrated analysis from all interested parties and establishment of simplified patent rules? I wish I had the answer.

Blackberry isn't relevant

[Anonymous Coward]

If you have read the history of the Blackberry vs. NPT case you will see that the Blackberry case isn't a "troll" case. The technology was developed and actually used in a company that went defunct because it never reached "a critical mass". Just because they still retain the patents doesn't make them trolls.

This still leaves open the question of whether the patents should have ever been issued to begin with. Software patents are asinine. Almost as asinine as being able to patent something that exists in nature.

Oh, oh!!! Great business idea! Invent a new programming language and patent it. Then when people start releasing software written in it you can sue all of them for infringement.

Re:Blackberry isn't relevant

[arkanes]

Blackberry aren't heroes in this at all. I don't know if the patents are reasonable, I haven't read them (and I find the politically convenient overturning of them after years of being upheld extremely suspicious, to say the least), but I do know that Blackberry has consistently acted in bad faith in the entire case. Coming the merest sliver short of outright falsification of evidence - in an attempt to prove prior art they gave a demonstration of older software that sent pager messages - but they modified the supposedly prior art software in order to get the demo to work!

Re:Blackberry isn't relevant

[winwar]

"Coming the merest sliver short of outright falsification of evidence - in an attempt to prove prior art they gave a demonstration of older software that sent pager messages - but they modified the supposedly prior art software in order to get the demo to work!"

Which is why the court is hanging them out to dry. RIM was its own worst enemy. It's why the patent can be invalid according to the patent office but still enforceable as far as the court goes.

Re:Blackberry isn't relevant

[dekaysion]

> Almost as asinine as being able to patent something that exists in nature. You mean like - erm - patents on genes and such? "You have just violated patent #2314837646782346723647" "didn't do it" "yep, your particular form of cancer has a gene that has been patentet by my client..."

Re:Blackberry isn't relevant

[Burz]

Great business idea! Invent a new programming language and patent it. Then when people start releasing software written in it you can sue all of them for infringement.

Just when I thought C# was becoming popular on Slashdot, you go and ruin it for me. :-(

Re:Blackberry isn't relevant

[gvibes]

Well, given that RIM has had to go to some Norwegian telecom proposal to find prior art, I think it's a given that the PTO, under their regulations/law, were not in error in issuing the patent.

Re:Funny definition of useful

[amerinese]

By idiot, you mean Columbia Law professor, and my trolling, GP means, he's never actually read Slate and doesn't know that it's probably one of the highest quality edited online websites you could find, content wise, and a widely read one at that (33 million per a day or something). There's gems here and there on Slashdot, but it's made useful through quantity (comments) and some sifting (moderation).

How to fix patents

[nobleheath]

Any patents registered by a company (or individual) that goes Chapter 11 or all the way to bankruptcy should automatically become public domain. If the inventor isn't good enough to make money out of it then it should be open for all.

The patent trolls that run around gobbling up defunct businesses to exploit other peoples work do nothing to help inovation - they mostly stand in the way. Patents are there to protect the inovators not the scavengers.

Re:How to fix patents

[kansas1051]

Any patents registered by a company (or individual) that goes Chapter 11 or all the way to bankruptcy should automatically become public domain. If the inventor isn't good enough to make money out of it then it should be open for all.

Oops, there goes the Wright Brothers patent for a "flying machine" (http://invention.psychology.msstate.edu/i/Wrights /WrightUSPatent/WrightPatent.html). They must have been patent trolls, and not inventors, because they didnt make a lot of money!

Predictable, yes... but like mold?

[rayd75]

I have a hard time swallowing that one... (Ewww!) Mold actually offers some benefit to the ecosystem and it tends to surface only once its meal has ceased to live. Patent holding companies, on the other hand, spring out of nowhere and gut fresh companies as soon as they start to turn a profit. Else, they lie in wait until other companies' products or services are ubiquitous and then demand huge percentages on years of sales. Sounds to me like pirates are a better comparison. Oh well, at least we can count on a decline in global warming.

Too many shyster opportunists

[TheSkepticalOptimist]

Bottom line is, this is the weakness in Capitalism. The fact that you can start up a company for the express purpose of screwing hard working or innovative people and companies out of millions in deserved money.

I know a guy that has made a fortune taking trademarks and copyrights filed locally only in Canada or the US and filing them in his name globally. If that local, Canadian or US company wants to go global, they have to pay this guy royalties for using their own name.

It may be sneaky and underhanded but its totally within the law.

Same goes for patent trolls or squatters. Come up with our buy some idea that today might seem far-fetched, keep the language ambiguous and generalized, and as soon as some other company actually makes a product with similar function or purpose a reality, jump on them and sue the pants off of them.

There are entire companies set up that buy and hold patents. Buying them off individuals and small companies and simply sitting on them, with a large team of shysters paid scouring patent applications and product releases hoping that some company might make a product that infringes on the patents they hold. These companies (contrary to what they might have you believe) are not think tanks nor do any research and development nor have any interest in making the ideas a reality. They simply sit on paper. It's entirely legal for a company to do nothing, let another company do all the work, and expect royalties or licensing fees to sell a product they actually spent time and money developing, or sue the pants off these companies. Its like corporate slavery.

Patents have been twisted and corrupted from something to protect innovators from having their ideas ripped off to one that penalizes innovators for having good ideas and spending the time and money and effort to make an idea a reality.

Patents have become a dirty word.

There needs to be changes imposed, period. Patent law needs to be rewritten, not just for software, but in all cases. This isn't happening fast enough.

Re:Too many shyster opportunists

[darjen]

Bottom line is, this is the weakness in Capitalism. The fact that you can start up a company for the express purpose of screwing hard working or innovative people and companies out of millions in deserved money.

This is not a weakness in Capitalism. It's actually just the opposite. Patents are a government granted monopoly, a direct product of Socialism. People complain about how bad monopolies are, and that we need the government to break them up. Then they go around saying governments should grant exclusive use of ideas to companies who 'invent' them and then wait for someone else to implement. The logic escapes me.

Re:Too many shyster opportunists

[jbolden]

You are wrong here. Capitalism presupposes a government which regulates economic activity. The most obvious example being freedom of contract. Without government enforcement contracts are worthless. Patents violate anarchy and you may be using capitalism to mean anarchical-libertarianismism but there is no clear conflict here.

In particular Adam Smith addresses the standard patents of his time where industries in colonies had to pay 1/5th of their gross to the host country in exchange of unlimited use of technology. He approves and considers this fair.

Re:Too many shyster opportunists

[robertjw]

Bottom line is, this is the weakness in Capitalism.

Hold on, this isn't a weakness in Capitalism. In a pure free market there would be no patents. While the problems you discussed do exist, they are not a result of the Capitalistic system. On the contrary, they are a result of inept governments monkeying with the system.

Patents have been twisted and corrupted from something to protect innovators from having their ideas ripped off to one that penalizes innovators for having good ideas and spending the time and money and effort to make an idea a reality.

Saw this line, so I thought I would go to wikipedia and see what the actual history of patents was. Turns out they started because the governments (Kings) wanted to get paid to protect inventors.

...a long tradition by the English Crown of the granting of "letters patent" (meaning 'open letter', as opposed to a letter under seal) which granted "monopolies" to favoured persons (or people who were prepared to pay for them).

Looks to me like there have historically been many more abuses of the patent systems, both by the administrators and the inventors, than there have been benefits to any inventors or individuals. I think the whole 'protecting innovators' concept is more a sham than anything.

Re:Too many shyster opportunists

[darjen]

Capitalism: n An economic system in which the means of production and distribution are privately or corporately owned and development is proportionate to the accumulation and reinvestment of profits gained in a free market.

I don't see any presupposition of regulation here. Regulation is anti-capitalism (and anti-freedom), pure and simple. Also, freedom of contract is meaningless if you are dependent on a specific organization to validate it. A contract is a voluntary agreement between two or more parties. Why should these parties be forced to depend on the government to enforce it? Why shouldn't they be able to choose another mediation agency if they wanted?

Adam Smith may not have had a problem with that, but that doesn't mean that it is fair or moral.

Re:Too many shyster opportunists

[jbolden]

Do you know who Adam Smith is? You can't argue that Capitalism disallows something that its inventor specificially included.

As for your point about choosing another mediation agent they are free to choose one and the government specifically allows that. But you are merely displacing the problem. How does the mediating agency enforce its rulings? Without an enforcement mechanism which opperates non consentually you are capable of breaking an agreement at any time.

Re:Too many shyster opportunists

[torokun]

Real estate investors often just sit on paper. Stock, bond, futures, etc., traders just sit on paper.

What function do they serve? They increase the efficiency of the market, and many other things as well.

It's much more efficient for a company to license their accidental inventions to others than to sit on them as trade secrets forever, because they don't know what to do with them.... It's much more efficient for them to sell the patents to a small holding company that will license them, for the same reason.

It's also much more efficient for a small inventor to sell his patent, or license it to someone who has the capacity to use it, rather than forget about it, or try to start his own company from scratch....

Re:Too many shyster opportunists

[darjen]

I don't recall Adam Smith having invented Capitalism, or free markets. Capitalism = free markets (investing private capital) by definition. Free markets = no government intervention. If you have issues with this there's not much I can really do. The contract would simply contain an enforcment agency agreed upon by the parties. A privately operated police or security company would do nicely in this regard.

Missed the point as usual

[Quatl]

Of course patent trolls aren't evil in the sense that they are not the cause of the problem. Software patents on the other hand are evil and unnessasary. It used to be a fundamental tenant of patent law that the purpose of protection was to encourage creation. Software creators do not apear to need this protection. For the first ~30 years they had only copywrite and the industry still managed to grow at a ridiculous rate. The current state of IP law in the US is an obcenity.

I can't wait...

[db32]

Similar to the DRM Virus comments...I can see this happening with a clever virus writer. So the virus writer patents his method for infection, then couples that with a patent on something like "Distributed Marketing" or some equally nonsense thing. Now he could sue the antivirus folks for A. Infringing on his patent by using his code to detect his infections, and B. Damages regarding interfering with his "Distributed Marketing".

Re:Funny definition of useful

[ObsessiveMathsFreak]

I think it's more that the article is saying that patent trolls are not going out of their way to be evil. They were just born that way.

Working in Pharma?

[dwandy]

From TFA:

Politically, while the idea of general patent reform is laudable, it faces inevitable opposition from industries like the pharmaceutical industry, where the patent system seems to be working. A broad-based Patent Reform Act, now in Congress, has been watered down considerably because of pharmaceutical opposition. Pharma has a point. In their industry, patent does what it should...

Really? It seems to me that all patents do in the pharmaceutical business is guarantee monopoly-type profits.
Drug companies launch ad campaigns where they try to justify their high prices (that lock people out) by stating that today's profits drive tomorrow's innovations. But if the high drug prices are simply to provide for tomorrow's R&D, then why do they show a $Billion in profit: By definition that money should either be a decrease in drug costs, or should have been spent on r&d ...else they're lying. They are in fact just like every other corporation that is making a product: No profitable company sets it's selling price based on production cost - it's set by what the market will bear. In the case of patent protected drugs that price is very high in affluent markets like the US.

So there remains a very real question: Do patents really work in the drug business? I'm not sure that they don't promote innovation, but I'm sure that they generate monopoly profits. So, while that might be taken to mean that they're working, it can also be taken to mean that some reform might not be a bad idea there either...

Re:Working in Pharma?

[jesterpilot]

It must be great to own a patent on herion or a new designer drug. All you have to do is wait until a drugdealer is caught, and then sue him. When this doesn't bring in enough money, you can always sue the police for the loss of profit they caused by destroying the dealers' business.

Maybe i should take a patent on this brilliant, innovative business method.

Re:Working in Pharma?

[dwandy]

AC says:

The whole point of a patent is to provide the patent holder with a monopoly! ... The assumption is that the overall public good benefits from the disclosure, while the inventor is permitted to benefit for the duration of the permitted monopoly.

What's your point? I think we've agreed that the current system provides a monopoly, and today that monopoly makes monopoly profits. That wasn't the question.
The question is whether or not it's justified. and whether or not we would have more or less medical innovation without patents, or shorter patent durations.

The point from TFA that I was contesting is the blanket, unsubstatiated assertion that patents in the drug business was 'working'. At least part of the problem is with the definition of 'working'. If you are only looking very specifically at "do we currently get drugs, and are companies taking advantage of monopoly protections" in a boolean fashion, then sure! of course! the system is 'working'.

But we didn't make this deal to enrich companies: we made it to enrich soiety. Personally I'm not at all interested in the monetary profits of others. And a system that provides larger than normal profits indicates that there is the possibility of a need for reform. Factor in that there is no evidence to support that patent protection is the factor that makes more and better drugs.

This leaves us with the question of whether or not we might have more drugs for less money if they had to compete out of the gate without protection, or less protection, and that is called patent reform (or abolishion...)

Re:Working in Pharma?

[HiThere]

Yes, but do the designers of new drugs EVER look at the patents of the old ones? If not, then nothing useful is being revealed.

I'm not totally certain about the case of drug patents (though I'm dubious), but in the case of software patents no developer ever looks at a patent. In the first place it's potentially quite dangerous legally (triples the cost if you're found to be infringing) and in the second place nothing of any use is ever revealed. Drug patents might be different, but I sure wouldn't bet on it.

Re:Working in Pharma?

[gnasher719]

'' Yes, but do the designers of new drugs EVER look at the patents of the old ones? If not, then nothing useful is being revealed.

I'm not totally certain about the case of drug patents (though I'm dubious), but in the case of software patents no developer ever looks at a patent. In the first place it's potentially quite dangerous legally (triples the cost if you're found to be infringing) and in the second place nothing of any use is ever revealed. Drug patents might be different, but I sure wouldn't bet on it. ''

The difference between drug patents and software patents is that a company developing drugs spends gazillions of money on things that don't work, and then gets lucky and finds one thing that works. Without patents, I could set up a company that just waits for others to be successful, then copy the successful things. I could always undercut them in price, because I didn't spent money investigating all the paths that didn't work.

With software, it is much easier to create things that you know are going to work. You don't try ten thousand different ways to solve a problem until you find one that works.

With drugs, it costs X dollars to develop Viagra, but it cost that company 100 x X dollars to investigate all the things that didn't work. A competitor developing _only_ Viagra would only have to spend the same X dollars, whether they read the patent or not. That is a huge advantage. In software, if you invented it it will cost you X dollars to make it work; it will cost me the same X dollars to reinvent it or to take your idea and make it work, and I have no unfair advantage at all.

That is why big hardware and software companies have contracts that allow them to use each others patents: This basically disables the patent system between them, which is good because they know life is just much easier without having to worry what everyone else does.

Why the spin?

[werdna]

Patent trolls aren't evil, but rational and predictable, akin to the mold that eventually grows on rotten meat.

You really, really need to listen to yourself. This "argument" is wholly devoid of substance, and is so on its face. First of all, wtf is a patent troll, that distinguishes it (assuming he is a faceless corporation rather than a legitimate and independent inventor) from, say, a property owner or landlord? Are you willing to defend the argument with that substitution, and if so, perhaps we need to rethink on which side of the argument we are laying?

And if you find some fundamental difference (and oh my there are certainly differences), deeper than the sea that makes you rebel at that, what is the difference between the "patent troll" (bad) protecting his intellectual property rights in "software patent" (evil), and the true genius independent inventor (good) defending his honor and creativity in a pioneering invention? Isn't that fundamentally just a question of whether the patent troll is suing a company we like, or an inventor we like is suing an evil corporation?

And what, pray tell, do you mean by a "software patent," that makes it so fundamentally different and unworkable from, you know, a patent on a method that has been enshrined in the patent act from time immemorial? Is it possible that a (good) invention could have been created that relates to electronic devices or circuits, and the methods of using them? If so, how do we distinguish? In partciular, are you seriously suggesting theat each and every one of the claims asserted against RIM in the lawsuit are software patents? Remember, infringement of a single valid claim of a single enforceable patent is sufficient.

Are you sure that NTP is an amoral patent troll asserting an improbable software patent, or is it every patent plaintiff who wins a case that you are complaining about? Are you sure that the patents-in-suit are evil and probably invalid softgware patents, or is it possible that NTP has succeeded to the rights to a meaningful invention? Is it possible, in particular, that RIM is simply a business that lifted itself up on the shoulders of others and arrogantly ignored the legitimate rights of the inventors on whose shoulders they are standing? RIM could have bought out of this suit easily earlier, and only talked settlement when it was clear they were facing an injunction worth billions. If, for just a second, you assume that they borrowed the invention of another and stood as a faceless, amoral giant corproation telling the inventor they will ignore his property for so long as lawyers allow -- where is the evil or emptiness of morality then?

In short, wtf is your argument? Is it:

Patents are bad?

Software patents are bad?

or

Bad software patents are bad?

Can you actually defend your case and distinctions without demagoguing on the third issue (with which we are in agreement)? I haven't seen a sound argument (and there are some) for cases (1) or (2) on this forum for years.

Re:Funny definition of useful

[MaceyHW]

You can't can't expect actors in a capitalist system not to maximize their rewards. Any system design/reform has to assume that actors will do everything allowed to maximize their rewards, even things which are viewed as "evil" by everyone else.

The point of the author was pointing out that patent trolls illustrate a explotable flaw in the system, and that villifying them does nothing to solve the problem. There will always be plenty of people willing to do lucrative, legal things that others view as evil, ie gambling, pornography, prostitution etc.

Re:Funny definition of useful

[Gorbag]

I think you may be confusing "evil" with "wicked". Evil, I think does not care about personal ambition - the 'goal' as it were is to harm someone else, regardless of the cost. The wicked are those who participate in one or more of the seven deadly sins, and are willing to trample on others in the pursuit of their own (current/temporal) happiness.

Thus the C.S.Lewis notion that evil is characterized by lack of concern or care - you care nothing for yourself and certainly for no one else. Wickedness, on the other hand has great concern for the self's short term improvement, and ignores longer term benefits. Corporations focused on the current quarter or week, thus, exhibit wicked, but not evil, behaviors.

Rational and evil are therefore somewhat mutually exclusive. To be rational is to judiciously apply your resources and selecting actions that maximize the likelihood your goals will be acheived. Restrictions (pragmatic constraints) on the application of resources or action selection may be relaxed by the wicked, but the evil do not act as if they have any (particular) goals or restrictions, other than perhaps a general goal of causing pain (discomfort); the action selection process appears almost random, and only in extreme cases can be considered to be "rationally" applied to the maximization of pain (e.g., perhaps a Sadist could be so classified, but such an example is also then confusable with "wicked" behavior as described above).

Re:Funny definition of useful

[skubeedooo]

Because saying something is caused by evil implies (to me at least) that it is a possible yet peculiar outcome, caused primarily by the pathology of the individual. Hence the solution might be to punish that individual. Examples of evil in this context might include rape, murder etc.

Saying something is predictable, or systemic, or rational, implies that otherwise normal people will end up doing said things because the 'rules of the game' promote them (and by rules of the game i don't only mean laws). Rather than looking to solve the problem by punishing an unending stream of 'evil people' (eg downloaders) we should try to reformulate the system. Examples might include the existence of rich people in poor countries, people eating factory-farmed meat, insider trading etc.

Saying people are evil is used on the one hand to generate misdirected aggression at a whole group of people, e.g. the current Denmark fiasco. On the other hand it is also often used by those in power to try to deflect attention to others, e.g. GWB blaming the evil prison guards for what happened at Abu Ghraib or Microsoft blaming evil hackers for the insecurity of their own operating system.

Both uses are essentially unintellectual, which is why it is useful to describe things in other terms.

dual perspectives

[DizzyDanMD]

Interesting scenario here. Aside from the trolls and patent squatters. Let's say that you are small little codeshop and you create this great thing and BAM, some huge company takes it away. With their big money, big lawyers, and all that jazz the little codeshop cannot afford, what do you do? On the other hand, you work for huge GeeWiz megacorp and never happened to sign one of those fancy non-disclosure forms. You go out and make a small company and get a design patent, and sue the big company.

The whole concept of creativity has been crushed by this red tape jungle. I think that if a company makes a product on their own, and its kick ass, let it ride. However, if a company steals an idea intentionally (note the intentionally) then they should be beat with a copper pipe, baseball bat, and motorcyle chain.

I just do not believe the government should ever be able to regulate creativity.

-dan

http://www.ChooseDan.com

Re:Funny definition of useful

[samkass]

Yeah, the software industry has sure suffered in the 20 years since software patents were instituted. A lot of people talk about what could be without them, but one might argue that they've worked really well if the success of the software industry is any indication.

Uh, this does not grok

[kimvette]

About the best that might be said of trolls like NTP is that they've inspired a serious patent-reform debate. A growing crowd--including major firms like Amazon, IBM, Intel, Yahoo!, and Microsoft, and academics like Mark Lemley, Douglas Lichtman, Bhaven Sampat, Arti Rai, and others--now advocate some form of major patent reform.

Excuse me, but isn't Amazon the company which attempted to hijack ecommerce by patenting the "buy now" button?

Isn't Microsoft the company applying for 300 patents per week (or was it per 300 per day)?

If these companies are so supportive of patent reform, shouldn't they lead by example? Or, is what they mean by "reform" limiting the right to patent to publicly-traded companies?

Re:Uh, this does not grok

[DizzyDanMD]

EXACTLY.

What's next, people starting to patent the ON/OFF button. The Open Here on a packet of ketchup. The Play button on your MP3 Player. It wont end by these crazy patents. They need to legislate this in more detail.

Daniel Zubairi, Candidate
United States Congress
http://www.ChooseDan.com

Re:Funny definition of useful

[Znork]

"will do anything"

Well, unfortunately, that's not quite the case. They're not doing "anything", they're following the rules.

Which makes it rather obvious that the rules create only an extra incentive for being greedy, devoid of morals and interested in nothing but furthering your ambitions.

Now, unless you'd like to classify greed, lack of morals and ambition as 'progress of science and useful arts', that puts the patent system in clear violation of the constitutional foundation upon which it rests.

Something which, perhaps, has needed some clarification, but which the patent troll makes exceedingly clear.

Re:Funny definition of useful

[Ken D]

Right, the fact that they are rational and predictable just means that they are "Lawful Evil".

Now a company like SCO just has to be Chaotic Evil. Can you predict what they are going to do next?

What if companies stopped filing for patents?

[eznet]

What if shareholders/investors required companies to show the ROI for their patents? It seems to me that the USPTO has allowed an inordinately high percentage of "bad" business model and software patents (meaning that they get overturned/disallowed on review). The only way to enforce a patent is through litigation, which is horrendously expensive. This is on top of the expense (and time) of actually getting a patent: Estimates for a US patent are around $15K+; patenting globally can cost >$250K. It can take five years (out of the 20 year life) for the patent to issue. And then it can be overturned. There are other ways to protect your business model -- as trade secrets, for instance. And you can copyright your software. Both are easier and cheaper than patenting. And in a patent application, you *have* to tell the world how to implement your "invention". By treating it as a trade secret, it remains, well, SECRET. Just because you CAN file a patent doesn't mean you SHOULD file a patent. Someone should ask to see the ROI.

Re:RIM deserves this, they infringe

[RembrandtX]

trust me .. I don't.

of course, those patents now stand a chance of being invalidated .. as they have made the second [and final] round through the USPTO.

Cauterize the wound

[Zey]

They're useful for understanding how the world of software patent got to where it is and what might be done to fix it.'

Well, the original plan was to leave the US system to fester and finally collapse under its own weight while our system just rolled on in comparative sanity. Alas, our idiotic elected neoconservatives in parliament went and signed us up to an astonishingly bad unilateral "Free Trade Agreement" with the US and now we're just as screwed.

I don't understand

[drasfr]

Yes, one thing I don't understand.

The patents in questions are likely to be rejected. The whole object of this lawsuit are those patents.

How can the judge dismiss that? What if he awards the injunction, either forces to close or settle. One way or another. What will happen if/when the patents ARE rejected? Because the lawsuit would have been on invalid ground?

Why can't this new evidence taken into account for the lawsuit? I don't understand this law aberation. Why can't the judge either order to wait to know the result of the patent re-examination, or forces the PTO to re-examine faster and be a party in the lawsuit?

I just don't understand why this lawsuit is going on ground (patents) that are likely to be dismissed and deemed invalid. Because if I understand right, patents not valid = lawsuit not founded anymore.

Can someone explain?

Re:I don't understand

[winwar]

"I just don't understand why this lawsuit is going on ground (patents) that are likely to be dismissed and deemed invalid. Because if I understand right, patents not valid = lawsuit not founded anymore.

Can someone explain?"

No, not really :) But the validity of the patents and the court case are not one in the same. At the time of the trial the patents were/are? still in effect. The court decided it wasn't their job to invalidate them. RIM however made the very large error of misleading the court. So it is getting hung out to dry.

It's more of a case of what NOT to do in court rather than a case about patents....

Re:Funny definition of useful

[tomhudson]

Now a company like SCO just has to be Chaotic Evil. Can you predict what they are going to do next?

Oh, that one's easy ... file another motion to delay things ...

SCO could give most patent trolls a few lessons. Unfortunately, this is what happens when immoral people do things. The legal system didn't envision judges who aren't ready to do a smackdown on lawyers who knowingly abuse the system, and are afraid of having their decision appealed. Where is Judge Roy Bean when you need him?

Mod parent up!

[Eli Gottlieb]

Come on people, this is funny AND it demonstrates (once again) just how fucked-up our patent system is! Give the guy some points (I don't have any. For some reason my karma's been Excellent for several months and I haven't gotten mod points once).

Re:Funny definition of useful

[arfonrg]

"we don't like patent trolls, they are necessary to show us just how bad the patent system really is."

Actually, that is a incorrect statement. If it weren't for patent trolls, the system wouldn't be broken. If the system was used as it was meant to be, there wouldn't be trolls.

So the point of the article should have been: look how the trolls (who ARE evil, BTW) have screwed up the system.

Re:Funny definition of useful

[iserlohn]

I think the words you are looking for are "in spite of".

Patent VS Copyright

[yabba-dabba-do]

Correct me if I'm wrong (and I'm sure you will) but in my opinion software should be subject only to Copyright, not Patent. This makes it easier to see who stole what from whom. Code is an art form, and each programmer has his / her own style that becomes obvious when you read the code. This would force someone with a good idea to actually start to write the code, not just sit back and wait for someone else to do all the work, and then claim it as your own.

Re:Funny definition of useful

[sconeu]

Actually, I think Judge Kimball and Judge Wells have looked at the results in US v. Microsoft, and are trying to avoid what happened to Judge Jackson.

Re:Funny definition of useful

[tomhudson]

and by trolling, GP means, he's never actually read Slate and doesn't know that it's probably one of the highest quality edited online websites you could find, content wise

... which has nothing to do with the fact that the statement made was a piss-poor analogy ... and that this is just a "me-too article." Slate was caught with its collective pants down on the whole "patent troll" mess - we've known about it for years. So, yeah, Slate is just trolling for readers because "Blackberry" gets attention from the clueless masses.

Patent trolls affect everything, from the food you eat (patented seeds, etc) to the medicine you take (patented mice for testing, etc) to the air and water you consume (patented anti-pollution devices). Everywhere that someone sets up a patent tollway through a bogus patent that "slipped through the cracks" rather than actually invent something useful, we all end up paying for it. So yeah, they CAN be predictable AND evil, just like meat rotting is predictable and nasty. That's what happens when either the underlying concept has outlived its usefulness or the agency tht was supposed to implement it doesn't do its job. Pick one. But don't tell me that Johnny-come-lately Slate isn't trolling for readers.

Re:Funny definition of useful

[tomhudson]

You can't can't expect actors in a capitalist system not to maximize their rewards. Any system design/reform has to assume that actors will do everything allowed to maximize their rewards, even things which are viewed as "evil" by everyone else.

The guaranteed very best way to maximize rewards under any system of law is to corrupt the system to your benefit. The patent trolls have done that, by flooding the patent office with patents they know are bogus. Sounds evil to me.

Re:Funny definition of useful

[greg_barton]

It's kind of like saying drunk drivers are good for teaching us how unsafe our cars really are.

But they are good for that, in the most dramatic and cruel way possible. It's just that society, in general, tends to ignore the education drunk drivers give us. We treat the symptom (drunk folks killing innocents on the highway) but we ignore the causes. (pervasive availability of alcohol, inherent danger of controlling a mass of metal at high velocities.)

And we also tacitly accept the risk and sacrifice...until it happens to us personally.

Re:Expect the worst -- but promote the best

[stanwirth]

The purpose of patents was to promote progress by encouraging inventors to publish the details of their inventions. In a world without patents, inventors had a strong motivation to keep the workings of their inventions (which were physical devices) as secret as possible, so that others couldn't duplicate them. The notion of patents was introduced to open up ... the details of inventions so that others could learn from and build on the ideas. Inventors recieve a temporary monopoly on their idea in exchange for publishing the details.

I really really like this! Thank you! It would be reasonable, then, for the USPTO to require that software patent holders actually publish their source code -- which is the real equivalent of publishing diagrams and illustrations for a mechanical device. Currently, then, the GPL better fulfills the role that SW patents ought to play.

Don't drink the kool aid

[bigram]

As a small inventor, without a salary and self-funding my patenting, my hope is that my fellow engineers who support the little guy will look critically at the line that the large players are feeding them. The patent system works fine for the small guy who doesn't have money.

NTP and their ilk go after the big guys, who couldn't care less about anyone else. The big guys would be happy to see the patent system defanged, because then money decides, and the small players like me can be swatted aside, whereas now they have to think twice before they copy a good idea.

This is not to say I think things are hunky dory right now - the whole NTP thing could have been prevented if the patent office has enough money to speed review (oh wait, the big boys aren't actually clamoring for more money for the patent office, because that way the machine can break down more spectacularly); an open-publication with open review of filed patents as the IEEE is proposing.

But I am saying that the big boys are using those legitimate issues as a smokescreen for the real goal - make it easier to screw over the small inventors.

My point precisely

[werdna]

Your [sic] new here right?

No, I have been around for quite a while, and am intimately familiar with the patent system to boot. While I am willing to fight for your right to be an anonymous coward, I suggest that it is pretty poor practice to begin a posting with an ad hominem attack, anonymous or otherwise. I might be new here, but also be right. I might also be wrong. My arguments might seem to you like condescension, but they are not intended as such -- rather, they are arguments, arguments that you have not joined except at all with a substantive response.

Let me explain it simply. Patents are bad. They are the tools of exploitation (profiteers exploiting the creative people).

At least this individual honestly states his position -- he is not attacking software patents per se, but rather patent in general. Although he gives no reasons in support of his position, other than the representation that "JFYII I studied patent Law. I got a distinction," there do exist reasonable arguments in support of the position he states. But they are irrelevant, because there are are also powerful arguments to the contrary, and the debate is never joined on the merits because the patent haters have a tendency to demagoguery, as exhibited by the poster.

It is understandable why -- the position of the patent-hater has been totally marginalized in the West -- and, more important, will never be enacted into law. As a student of the patent system, the poster knows that it is constitutionally enshrined in the United States, at least, and has a long and illustrious history of success. Two hundred years of technological dominance and industrial innovation do not prove that it was caused by patent system, but does demonstrate that the parade of horribles claimed by patent system detractors --as a whole-- is wildly overstated. Without a patent system, some of our nation's greatest inventors --particularly during the industrial revolution-- might never have been able to claim their due. Finally, nations with strong patent systems, for the most part, have dominated innovation while nations without them have languished.

This is certainly not an argument on which I would ground my defense of the patent system, but rather a taste of the counter-demagoguery that anti-patent movement people face. If not intellectually defensible to claim cause and effect, these points are enormously persuasive in fact, and are likely always to win the day in the Congress. The only place where it really matters.

At any rate, there are other forums where the debate over the patent system can be argued substantively, and I am not about to join this vapid list of random and unsupported remarks.

But as I said -- this isn't about software patents -- rather it is for the most part about criticism of patents, generally, a view that cannot be won in the United States, or about criticism of bad software patents, with which I generally agree, but which calls for repairs to the patent granting system, and not overhaul of the patent system itself.

Re:Don't hate the player, hate the game

[Marxist Hacker 42]

Exactly right- and when I find I'm in a game that I'm losing, I quit. When I find meat that has grown mold- I throw out the meat AND the mold. We should do something similar with the US Patent Laws.

Re:Funny definition of useful

[sjames]

Consider it as a strange form of looking on the bright side as in while looking over the smoldering ruins of your car saying "At least I don't have to rotate the tires now".

Re:And you missed the point

[HiThere]

Have you even *looked* at the requirements for a software patent? You don't need to reveal the code. You don't need to reveal the algorithm. All you need to do is have a lawyer paraphrase (in lawyerese, which NOBODY, even other lawyers, understands) what the algorithm says.

That's not "making patent" anything worth talking about. So no trade secrets will ever be revealed by these "software patents". They aren't software patents, they're merely the official grants of a temporary monopoly. I.e., the benefits of a patent (and then some) without any of the quid pro quo. The "and then some" was because since nobody can tell what the patent is really about, they can argue that it applies to anything in some way similar.

Re:Funny definition of useful

[tomhudson]

Judge Jackson got into trouble for public comments.

If Kimball and/or Wells had taken control of their courtrooms after the first sloppiness from SCO, the case would have been over by now, and the appeal half-way done as well. Oh, irght - there wouldn't have been an appeal - SCO would have been (even more) bankrupt than they are now, morally, financially, etc.

Re:Funny definition of useful

[greg_barton]

Actually, that is a incorrect statement. If it weren't for patent trolls, the system wouldn't be broken.

Your correction is incorrect. :) That's like saying, "If there were no virus writers, Windows would be totally secure!" It's still insecure, whether folks write virii or not.
The difference is that when someone exploits the flaws we now know how to fix the system, if we're willing and able to do so.

Re:Expect the worst -- but promote the best

[swillden]

It would be reasonable, then, for the USPTO to require that software patent holders actually publish their source code

Absolutely.

Currently, then, the GPL better fulfills the role that SW patents ought to play.

Not really. The GPL doesn't provide any incentive for inventors to publish.

Re:Funny definition of useful

[amerinese]

See you need to define what you mean by "trolling". What exactly is wrong with me too, if your general readership probably isn't familiar with the issues? And credibility DOES matter.

Familiarity with Slate would tell you they do that kind of stuff all the time, and in fact, that may be all that they do--they gather a bunch of experts that write in a clear way for a general audience... sure YOU probably think you know what you're talking about... ok... does the average Slate reader?

If you read the fucking article, you'd also know that he wasn't as predictable as you make him out to be. He points out the problem is one of the ability for drawing clear property lines, which is difficult with software, but much easier for drugs.

No, my correction was correct.

[arfonrg]

What I actually said was: "If there weren't people breaking the system, the system wouldn't be broken".

Re:Funny definition of useful

[tomhudson]

He points out the problem is one of the ability for drawing clear property lines, which is difficult with software, but much easier for drugs.

... drugs - another area the patent office is so fucked up on. Anyone who is writing about patent screwups and uses pharmaceuticals as an example of whre the patent office gets it write should have their keyboard unplugged. Take the same drug, find a different didease to treat, change the drugs' name - voila - 20 years more patent protection FOR THE SAME DRUG! No "invention." No "creativity". Its the same BS as adding the words "on the internet" to an existing scheme.

Re:Funny definition of useful

[amerinese]

That's not true. You only get a patent on the molecule. If you make a slight alteration, then you can extend the patent again, which IS something that's broken with this area of the patent system. But in general, patenting drugs has sparked great amounts of innovation, while software patenting does not seem to have sparked any at all. Get your facts straight and look at the big picture. They're not broken in the same way, and that's why the article was just fluff. If you noticed, the story was even duped, but the second time the story was properly given a summary that pointed out what it said that's different than what's usually said in the slashdot comment echo-chamber.

Re:Funny definition of useful

[tomhudson]

Poster who doesn't have their facts straight wrote:

That's not true. You only get a patent on the molecule. If you make a slight alteration, then you can extend the patent again,

...

Get your facts straight

Try again - same drug, not one molecule changed - just a different purpose, repatented. So please get YOUR facts straight.

http://www.okjolt.org/frame_index.html?/published/ 2003okjoltrev5.html

One of the ways companies continue patent protection is by applying for new patents for the existing drug during the protection period.13 An example of this would be tying the drug to another use than what was applied for originally,

IOW, you take an existing drug, say one for high blood pressure, and, befoe the patent runs out, you apply for a patent for the same drug, except now used to grow hair (and turn a bad side effect into a feature while you're at it). No need to change a single atom.

You have to do this while you still hold the existing patent, because once its unprotected, thats it.