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. :)

[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. :)

[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.

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: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.

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: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.

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.

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...

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?

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'

[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.

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.

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?

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

[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. :-(

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.

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

[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: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.

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.

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: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: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: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.

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

[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.

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: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.