Slashdot Mirror
SCOTUS Set To Examine Combinatory Patents
eldavojohn writes "The Washington Post is reporting that businesses are split on the current situation with patents in the United States. From the article: 'The court is scheduled to hear arguments Tuesday on what's obvious when older inventions are combined to create something new. The law says an invention that's "obvious" isn't patentable, but the definition isn't clear despite decades of litigation. The ambiguity, critics say, has led to an explosion of patents as companies stake claims on everything in sight, from strategies for avoiding taxes to golf ball designs. The result has been extensive and costly legal wrangling as companies of all sizes fight over who's infringing what. In some cases, small companies acquire patents not to develop new products but to sue for a quick windfall.' This sounds like some common criticism of the patent system that often pops up on Slashdot. The last part of the article mentions that most legal experts are expecting some changes to come of this. Hopefully soon we'll see some changes to the patent system for a better concept of intellectual property."
As a result of this, patent cases are often fairly random in terms of the results obtained. It's difficult to know what can be done about this, other then to allow the bench to call an independent expert witness.
"To any truly impartial person, it would be obvious that I am right."
Most reasonable legal systems are tuned to avoid "false positives". That is, it is acceptable that some number of people who actually committed crimes walk away unpunished, as long as those who are punished are done so justly.
If a country's legal system does not attain to this rule, then it is probably not deemed safe to visit there.
It is a principle well known to legislators, law enforcers, lawyers and citizens in generals.
And I think it should be applied to patents as well. Only if you prove beyond doubt that your patent is non obvious, innovative, and all the criteria apply, it should be granted.
In exactly the same way that nobody is (or at least nobody should be) sent to jail if there are doubts. If there are doubts then you are free.
The patents system is not flawed per se. The problem is that it is being abused with a high noise to signal ratio.
as a way to advance science and copyrights the arts.
In exchange for opening the information, inventors were given a limited time monopoly on said invention. What the founding fathers wanted to get beyond were secretive guilds and the hording of information - instead encouraging a free flow of ideas. One historical objective is to avoid the technological stagnation that accompanied the middle ages.
But with the original aim of inventions in mind - now that it seems that there is a lot of unintentional infringing of patents - it suggests that the original intention is outdated - the patents are protecting knowledge not worth protecting since others stumble onto the ideas at roughly the same time, negating the need to open the information. Even if it is not stumbled upon, reverse engineering can and does often provide the information needed for someone to duplicate many of the results - again negating the original need for patents.
Could it be that patents should only have been training wheels for the industrial revolution until a technological society is achieved - because once a certain level is achieved, there is no easy way of going back, of ceasing the competition for better products, advances, etcetera? That they should have been discarded after a time?
Could there be another way to promote an open exchange of ideas? Which was the original intention of patents. Because it seems that patents, in their current state, are setting us behind other countries (China) in terms of the future, dragging our economies down, and not at all fulfilling their original purpose. And from what I have read - the purpose of the patent was an ultimately social function, not to protect businesses or let them rest on their laurel in perpetuity (Atari).
They should be restricted to practical engineering for physical objects.
They shouldn't include things like stories or tax shelters or mathmatics or software. That's just BS.
But practical sciences need them because the only way some things is going to happen is by throwing money at them. Stuff like automobile engine optimizations and safty improvements. Space flight. Drug research. Advances in electronic design. New chemistry breakthroughs, etc etc.
Patents are the only way your going to get certain technologies to remain out in the open while providing funding over it. Especially things that require huge amounts of capital such as drug research. Otherwise people will be forced to close everything and innact trade secret insanity which benifits nobody. Imagine corporations having to move to third world nations and hire private armies to protect their billion dollar secrets. That is the bullshit we'd have to look forward to. Patents are much better solution.
Also it avoids the need for government to control funding, which produces generally pretty bad results per amount of money (money also as a reflection of real time taken out of people's lives to deal with governmental bullshit).
Software patents are a very good indication of what is wrong with the system. Should be done away with and as far as reform for the rest of the system I don't know enough about the details to realy comment on it.
From the same Supreme Court that in Eldred vs. Ashcroft ruled, in essence, that a copyright term remains "limited" and thus is in keeping with the Constitution as long as it has a stated limit, even if the limit increases over time at the same rate that time passes? You must be on some other planet if you think that same Supreme Court will make any improvements (from the point of view of actual practitioners in the various fields, as opposed to the patent attorneys) to "intellectual property" (gad, how I hate that phrase) law.
I think it's at least as likely that they'll decide that "obvious" really means "obvious to even the greatest of morons in the field", and thus that pretty much anything you care to name is patentable.
Of course, that assumes that they'll issue any sort of meaningful ruling whatsoever. It's entirely possible that they'll simply say that it's up to Congress to define in greater detail what it means, and until then leave things as they are. Just like they did in Eldred.
Use 'slashdot stuff' in the subject line in any email you send me if you want to get past the spam filter.
"Obviousness" can be decided in a trial if the jury is made up of peers of the inventor -- those skilled in the art by some reasonable criteria.
Seastead this.
Talking about the founding fathers wanted with patents is a bit misleading though. Modern patents were invented (sic) in Venice in 1474
The actual lessons of history are often forgotten.
Current concerns about patent abuse, especially abuse of overbroad patent claims, somewhat reflect concerns that lay behind the 1623 English statute of monopolies. That was an attempt to prevent future abuse, and it specifically said that, in future, patents should not be granted or valid where they would be "contrary to the law or mischievous to the state, by raising prices of commodities at home, or hurt of trade, or generally inconvenient."
Wikipedia is rather misleading about patent law history, I'm afraid. Agreed, it has now become a commonplace to cite the 1474 Venetian ordinance about inventions as the 'progenitor' and so on of modern patent law, and chronologically it was the first. But it is only anachronistic hindsight reconstruction to say that it was also influential on the later developments -- because the Venetian history was only (re)discovered by scholars interested in origins of modern patent law within about the last century and a half. Way back before then, at the time and place of the founding fathers in the 1780s, nobody had heard of the Venetian history. What the founding fathers knew much more about then was English law. Many of them were lawyers trained in English law. The question they asked themselves was effectively whether they wanted patents on an English model. And in effect they said yes. The early US patent lawyers and judges looked to English legal practice for details of patent law or practice left open by the US statute. Fessenden's early US patent law textbook of about 1811, as well as Justice Story's Notes on Patent Law, make that very clear. (Even now, when the two systems have thoroughly diverged, it still occasionally has happened that senior courts in US, including the Federal Circuit and the Supreme Court, have referred back to old English 18th-century and 19th-century patent law reports, as in the 'Markman v Westview' and 'Warner Jenkinson v Hilton Davis' cases.)
But in the US (as in England), the safeguards mentioned in the 1623 statute of monopolies became forgotten in law and in practice, and nowadays some patents do seem to operate as "mischievous to the state, by raising prices of commodities at home, or hurt of trade, or generally inconvenient".
-wb-
Currently the burden of proof is on the USPTO to show that something is obvious, rather than being on the applicant to show that it is nonobvious. Shift the burden to the applicant, and that will go a long way to solving the patent mess.
When a patent is being applied for, the applicant is claiming that they invented something that others would be unlikely to figure out independently. Making such an assertion should require strong evidence and persuasive arguments to go with it.
Obviousness will always be a grey area, but for everything to be considered nonobvious by default is ridiculous.
I would go as far as saying that patents should be restricted to those things that are obviously nonobvious. If there is doubt as to its obviousness, don't grant the patent. It is better for 10 well-deserving patent applications to get rejected than for one undeserving one to get approved. Those with rejected patents can still produce whatever they developed without the patent; but when an undeserving patent is granted it prevents everybody else from producing the covered items, without requiring the grantee to produce it themselves.
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One of the frequent objections to patent reform seems to come from the drug companies which (if you reconfigure your brain to enable "feeling sorry for poor impoverished multinational companies mode") is sort-of understandable, given the amount of work needed to establish what might be an easy-to-replicate chemical as a drug. Its also a field where disclosure of information is likely to advance science.
Couldn't some of the protection currently offered by patents be made part of FDA and similar approval processes instead? I.e. make the investment needed to get a drug FDA approved: get an N-year monopoly on its sale?
In a survey of 100 programmers, 111111 thought that duck-typing was a good idea.