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 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?

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

[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: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.

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?

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.

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.

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.

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.

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.

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: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?