Test for "Obvious" Patents Questioned

bulled writes "News.com is running a story about a case coming before the US Supreme Court on testing new patents for 'obviousness'. The decision has potential to significantly impact the High Tech industry." From the article: "Several Silicon Valley heavyweights, including Intel and Cisco Systems, have submitted supporting briefs that urge the Supreme Court to revise an earlier ruling. That ruling, they claim, has helped make it easier to obtain patents on seemingly 'obvious' combinations of pre-existing inventions."

Comments

How about reforming patents all together...

[pembo13]

so that the only ones who can benefit from patents heavily are the "little guys". Big companies have little incentive to use patents in any other way except that benefits their bottom line. So just let the little guys benefit, and the public as a whole may just benefit some more. (I do not really consider lawyers to be part of the public - sorry)

Re:How about reforming patents all together...

[fyngyrz]

I do not really consider lawyers to be part of the public - sorry

Lawyers aren't the problem. Laws are the problem. Laws come out of legislatures, and legislatures are out of control, have been for decades. Speaking of the US, as a US citizen. Not familiar with other systems. Entirely too familiar with ours.

Re:How about reforming patents all together...

[SmokedS]

The point of patents is to benefit the bottom line of the patent holder - doesn't matter if they're big business or and individual.

Actually, that's never been the stated purpose of patents. The government is not supposed to be in the business of enriching individual people or corporations, and they are well aware of it. The rationale for patents, as for any regulation, is to attempt to optimize the entire system. In the case of patents, by encouraging innovation. That's the party line, and pretty much every party around the world toes it.

There's a bit of a problem with it though. There is actually little to no real evidence of patents being beneficial to the economical system. For any technological discipline. On the contrary, there is plenty of evidence of it actually inhibiting progress in a number of areas, the most blatant case being software patents. Patents have become a tool for the large companies that are on top to stay on top, and not to have to actually compete on the merits of their products. The basic tenet in the belief of the beneficial nature of patents is the belief that progress moves along in giant leaps of imagination, or immensely costly research, that is so rare that it needs protecting. For the most part this is just not true. Progress is slow and gradual and constantly builds on existing solutions. Patents are not beneficial in such a system.

The most popular poster child argument for patent proponents is pharmaceutical companies. "If there were no patents, no drugs would be developed due to the great cost, and where would we be then?" they ask. This doesn't hold up under scrutiny though. Analysis of the higher cost of patent encumbered drugs and the research budget of drug companies will show you in no uncertain terms that the state could spend several times the amount of money that the pharmaceutical companies spend on research, and our society would still save money because the price gouging is so brutal on patent encumbered drugs. The state funding drug research itself would also bring with it the not inconsequential benefit of the ability to concentrate on beneficial drugs, rather than drugs that will make a profit.

There are actually few rational arguments for any sort of patents, and very substantial arguments against them. Overwhelming arguments in the case of software patents. However, the companies that profit the most from the oligopoly maintaining power of patents are among the most powerful legal entities, and lobbying groups, in the world. Just about everyone except for patent attorneys and mega-corporations with huge patent portfolios oppose software patents. In spite of this they almost got legalized in the EU, and the proponents of them are trying again from a different angle now. Frustrating to say the least.

Re:How about reforming patents all together...

[Bastard of Subhumani]

Lawyers aren't the problem. Laws are the problem. Laws come out of legislatures, and legislatures are out of control, have been for decades.

The legislatures aren't out of control. The question is, whose control are they under?

Re:How about reforming patents all together...

[Kattspya]

Here's a link to a study that supports the OP: http://www.dklevine.com/general/intellectual/again st.htm (PDF-warning)

Re:How about reforming patents all together...

[MightyYar]

I have a few issues with this reasoning:

If no patents existed, everything would become a "trade secret". Essentially, every factory would become a Willy Wonka factory, where no one knows how a product is created - it just pops out. Key technologies could be lost if a person dies or a factory burns down.

Second, maybe I'm too cynical, but I see zero evidence that a government body could do as good a job with drug development as the free market. There are many, many failed drug companies - they took a risk on a new technology and failed. Politicians would be under fire for "wasting" money if they went down this path, and so government drug development would proceed down the safest path, where the employees and politicians would be as concerned about covering their asses as anything else. Not to mention that government departments tend to be chronically underfunded, full of corruption and nepotism, and very slow to react.

I think that there needs to be an additional test for a patent: would it become a trade secret if it weren't disclosed in a patent? This would allow a novel manufacturing process to be patented (even the software controls!), but would prevent things like Amazon one-click. Presumably, Amazon would have done the one-click thing with or without a patent system... so why should they get the protection? How does society benefit? Many of these software patents are asinine because they are right out there in plain view, and there is ample incentive for the companies to do them without the patent system. Apple's "look and feel" is a prime example. Does anyone argue that Apple now spends less time on look and feel since Microsoft won that case?

Re:How about reforming patents all together...

[russ1337]

>>"If no patents existed, everything would become a "trade secret". Essentially, every factory would become a Willy Wonka factory, where no one knows how a product is created - it just pops out. Key technologies could be lost if a person dies or a factory burns down."

Once that first product 'pops out', reverse engineering kicks in. Take the 3M approach - they know their product will be copied so aim to be first and fasted to market to make their cash quickly by being innovative ahead of their competition. This gives the OEM a window in which to maximize their sales/profits, and promotes competition and technical innovation.

Re:How about reforming patents all together...

[MightyYar]

No system is perfect, but it is much harder for a government to fail than a company. As bad as Dilbert's world is, it pales by comparison to the workings of a government agency.

At any rate, even if Merck turns (turned?) into a big bloated mess, they still have the capital and opportunity to snatch up a small startup with promising technology. Many, many of these small startups fail - but many are also snatched up by the bigger guys. Thus, even when the big guys get bloated and unresponsive, bleeding edge research can still occur because venture capital will fill in the niche. Actually, this is a pretty nice arrangement, because the big, bloated company is probably very good at all of the bureaucratic stuff involved with testing and getting a drug approved with the big, bloated government. If government were the only game in town, there would be no venture capital to fill in the niche - and I'm not at all confident that the government would fill it themselves.

I'm not one of these crazy capitalist guys, but I do happen to think that it works pretty well if you are willing to put up with the inevitable cycles in the market. Government is good for slow, plodding, and steady. For this reason, I happen to be fairly pro-free-market, except when it comes to critical infrastructure like food, water, sewer and electricity. Some free market is okay in these cases, but frankly I'm willing to pay a premium for my food if it ensures a steady, affordable supply :)

Re:How about reforming patents all together...

[LaughingCoder]

... the state could spend several times the amount of money that the pharmaceutical companies spend on research, and our society would still save money because the price gouging is so brutal on patent encumbered drugs.

Are you serious? Remove the profit motive? State funding? Have you seen the condition of public schools in the US (hint, quality is awful and costs are sky-high)? Have you seen the condition of the roads and bridges? How would you compare the efficiency, cost-effectiveness and customer service of the US Post Office with Fed X and UPS? Let's talk about airport security. Or border security. Paragons of efficiency? While we're on the subject, how well run is the US Patent Office? You really think the government would do a better job of drug R&D? That flies against *all* empirical evidence of the last 500 years. No, if the state developed drugs we'd have $20 aspirin tablets and not much else.

Re:How about reforming patents all together...

[drsmithy]

Actually, that's never been the stated purpose of patents.

Nor does it need to be for it to reflect how they work.

The government is not supposed to be in the business of enriching individual people or corporations, and they are well aware of it. The rationale for patents, as for any regulation, is to attempt to optimize the entire system. In the case of patents, by encouraging innovation. That's the party line, and pretty much every party around the world toes it.

The point of a patent is to impose artificial scarcity and hence increase an invention's value. Note that the "invention" is distinct from the ensuing "products".

As soon as you take money out of the equation, however, patents are pointless. Ie: it's all about the bottom line.

There are actually few rational arguments for any sort of patents, and very substantial arguments against them.

The rational argument for patents is the same as the one for copyright - that there is no (known) better way to create value where it would not otherwise exist (ie: in the face of infinite supply). Patents in the real world are much less of a problem, however, because they are opt-in. There _is_ the significant flaw in contemporary times that patenting things is *way* too easy, and that some things which should not be patentable, are (your example: software), but that largely a flaw in the execution, rather than the concept.

Re:How about reforming patents all together...

[unknownideal]

In Soviet Russia... Oh yeah, that's right, Soviet Russia no longer exists. So much for leaving it to the state.

Re:How about reforming patents all together...

[evil_Tak]

The government is not supposed to be in the business of enriching individual people or corporations, and they are well aware of it.

You must not be referring to the United States government.

The issue is obviousness *before the fact*

[BadAnalogyGuy]

Most patents, especially for software, are obvious after the fact. Programmers look and say, man, that's so obvious!

But is it? Look at the battery problem mentioned in the article. Now we look and say duh, of course it makes sense to wrap batteries in a metal cylinder. But until that point no one had thought of doing it. The solution stared at them in the face, but no one ever sat down to think it through.

Same with a lot of software patents. Yes, when you look at them, they seem totally brainlessly obvious. But then why hadn't anyone thought of it until that point? Why did the idea not exist, or at the very least have a patent pending? Because until someone sat down and thought of how to best implement something, it simply hadn't been thought of seriously until then.

Ask anyone who has submitted a patent application whether they felt their patent was frivolous. I imagine you'd find the vast majority of them holding the belief that they did something novel.

Re:The issue is obviousness *before the fact*

[MemoryDragon]

The once you have seen it and then it is obvious argument has been brought to the table ad nauseum, and no I do not buy it. First of all most patents filed have prior art to a big degree, secondly, what has happened in the recent past is that everything under the earth has been patented, third, once you face a problem and bring it in front of 100 guys to solve it 20 of those probably at the same time will find the most obvious way. So obvious really is obvious in most cases!

Re:The issue is obviousness *before the fact*

[mpe]

Same with a lot of software patents. Yes, when you look at them, they seem totally brainlessly obvious. But then why hadn't anyone thought of it until that point? Why did the idea not exist, or at the very least have a patent pending? Because until someone sat down and thought of how to best implement something, it simply hadn't been thought of seriously until then.

Or maybe the first 10-100 people to think of it either thought it was so obvious that it wasn't worth trying to patent it or they wern't in the "patent everything" frame of mind. The problem with the issue of "obvious" is that it tends to be poorly documented...

Re:The issue is obviousness *before the fact*

[DMiax]

There's also the inverse procedure: everyone thinks something is obvious then comes One that says "it is not!" then patents it, despite the fact that he did not invent it and it is common practice or technology.

Am I the only one who remembers an attemp to patent the wheel?

Or Microsoft patenting desktop pager and XML?

Most patents do not even come from the guy that invented the technology, funded research, or at least used it!

Re:The issue is obviousness *before the fact*

[shutdown -p now]

Yes, when you look at them, they seem totally brainlessly obvious. But then why hadn't anyone thought of it until that point? Why did the idea not exist, or at the very least have a patent pending? Because until someone sat down and thought of how to best implement something, it simply hadn't been thought of seriously until then.

No, more often it's because something is so obvious, any sane person (who does not happen to be a lawyer) wouldn't even think it is patentable.

Re:The issue is obviousness *before the fact*

[ObsessiveMathsFreak]

But is it? Look at the battery problem mentioned in the article. Now we look and say duh, of course it makes sense to wrap batteries in a metal cylinder. But until that point no one had thought of doing it. The solution stared at them in the face, but no one ever sat down to think it through.

So one guy has a brain fart and now he can sit on his ass and impede human civilisation because of it? What ever happened to trade secrets? Copyright?

Patents are not about encouraging "innovative" ideas. They are not about rewarding research. They are about granting monopolies to people who grease enough palms. That was their original purpose, and that, beneath all the layers of bullshit, is still their purpose now. To grant monopoly; unrestricted, pure and total.

If you believe otherwise, then the marketo-psychic dominator troop have earned their pay today.

Re:The issue is obviousness *before the fact*

[eklitzke]

I agree with you completely.

The amount of things that we take for granted is just enormous. Let me explain. Right now you are undoubtedly using a multitasking operating system, meaning that you can run more than one process at once. It is really non-obvious that such a thing is even possible, let alone can be done efficiently. For those of you who don't know how it is done (and I bet even on Slashdot, most people do not), how would you overcome this problem? How are you going to make sure that once the kernel gives a time slice to an application, the application will give it back? How are you going to make sure the application doesn't corrupt the location in memory the kernel resides on?

Here is another, more basic example: writing. Homo sapiens existed for tens of thousands of years all over the globe, and only a handful independently discovered written language. To us it seems perfectly obvious that you can express spoken words in some sort of symbolic form and preserve it as writing, but this is not an obvious concept.

Let me take the writing example one step further: what is the most obvious way to write a language? With pictographs/ideographs. Each word is its own character. The idea that you can express this written language purely with phonetic components is really a novel concept, even to me, a native English speaker.

I am a math major, so my final example will be from that realm. Think about high school algebra. What does f(x) = x^2 look like? A parabola, right? That idea is a very recent development in mathematics (within the past few hundred years). The idea that you can do the opposite -- express geometric relations in algebraic terms -- was equally as innovative. To us it is obvious that you can interpret algebraic functions as curves or lines, that you can write a formula to express the area of something, and that you can draw mathematical structures. But these things are *not* obvious!

The idea that I am driving at here is that there are many, many things that we consider obvious that clearly aren't. While I feel that many patents clearly are obvious, and that there is a considerable amount of patent abuse in the system at the present with respect to obvious patents (my current employer comes to mind...), it is really, really hard to say what is obvious and what is not when you have hindsight. If you were a programmer and only coded in C your whole career, do you really think that you would be able to come up with the idea of an object oriented language? Or the idea of automatic garbage collection? When someone comes up with a truly novel idea they deserve to be able to patent it. And while there is a lot of abuse in the patent system, I suspect that in many, many cases things that are now considered obvious were considered revolutionary at the time of their invention.

Re:The issue is obviousness *before the fact*

[bytta]

There are many kinds of patents.
1. A simple (or complicated) way that works in solving some problem or is useful in some way, e.g. Metal wrapping for batteries.
2. An obvious amalgam of earlier inventions, that does not really solve any problems, e.g. knork (which is just a modified http://en.wikipedia.org/wiki/Pastry_fork anyway )
3. A relatively simple idea (often a rip-off of earlier ideas) wrapped in obscurity just to make it open enough to make everyone cough up some money for using it. E.g. "Click to buy"
4. etc...

To me - only category 1 is "inventions", and to me, only "inventions" are patentable.
Most software patents mentioned on /. go into category 3 - some are in cat 1.

Re:The issue is obviousness *before the fact*

[LordLucless]

The thing is, ideas aren't patentable. Methods are. The test for obviousness should be, given the specs, can another programmer come up with the same implementation. For example, if someone said "invent a system that allows one-click purchasing", and the programmer can come up with the method described in the patent, the patent should be invalid as obvious. On the otherhand, if you say "an algorithm for compressing audio data", and the programmer can't derive MP3 compression, then that should be a valid patent. Note that patents don't cover the idea, just the method. A patent on "a method for compressing audio data" doesn't stop any other compression scheme - just the particular one outlined in the patent. Of course, bundled with this needs to be a way of preventing submarine patens a la UNISYS' LZW/GIF.

Re:The issue is obviousness *before the fact*

[mark-t]

The problem with patenting methods that are implemented by software, however, is that all algorithms are simply logical steps... the fact that these steps are simulated at an abstract level within the cpu cycles of a computer is irrellevant, logic is an intrinsically mental construct, and they are ultimately just mental steps that ultimately involve no more than the appropriate sequence of logical AND, OR, and NOT operations on binary digits. Mental steps are not supposed to be patentable, so algorithms, regardless of how innovative they may be, should not be patentable. Software is copyrightable anyways, so the idea of patent protection should even at best be superfluous.

Re:The issue is obviousness *before the fact*

[LordLucless]

You could say the same about any physical invention; after all, an internal combustion engine is just a series of interactions between fundamental physical forces, just as an algorithm is just a series of logical operations. A physical device involves transforming and moving energy between its components, an algorithm applied to a computer involves shunting electricity around various gates.

Copyright and patents don't offer the same type of protection, so saying algorithms are adequately protected by copyright isn't really accurate. For example, if someone copyrighted their MP3-encoding code, and I got my hands on it, I could implement the same algorithm in a totally different language, and it wouldn't be violating their copyright. Copyright protects a particular instance of a program, a patent protects the general principle. At the moment, there are implementational problems with both systems (insufficient obvious-testing for patents, infinite extensions for copyrights), but I don't see any fundamental reason why an algorithm should be treated differently from a physical invention, as long as it is sufficiently innovative, sufficiently non-obvious, and a working example is provided.

Re:The issue is obviousness *before the fact*

[Duncan3]

Actually, everything on /. is usually in

#4. In widespread use for 10-20 years before the patent was filed.

Re:The issue is obviousness *before the fact*

[SatanicPuppy]

The real point of patents is to encourage inventors to make their inventions public, with the understanding that they will be allowed to profit off them for a reasonable time, and then the public will own that invention, and it won't be lost as some random trade secret.

The alternative to patents is not complete freedom of information, it's utter and complete secrecy. Companies would spend a fortune obfuscating their own code, and doing everything they could to prevent reverse engineering. You'd have to sign a hundred NDA's in order to get a contract to refill a soda machine at a big company.

Not exactly a desirable course of events.

Why even allow any patents?

[Karganeth]

Patents have no point to them. I'm surprised that they're still around, because all they do is help companies create a monopoly over a product. The market suffers and the consumer suffers. There is less competition, which means the company owning the patent doesn't have to make it's product so much better. The only possible upside is that it would give inventors an incentive to invent things. Though why not just give them say 10% of what the product makes for the next 5 years or some other similar system?

Re:Why even allow any patents?

[langelgjm]

Patents have no point to them. I'm surprised that they're still around, because all they do is help companies create a monopoly over a product.

That is exactly the point - a government enforced monopoly for a limited period of time. Without patents, any company could just come along and rip off your design, into which you poured time and money with R&D, and begin selling it, most likely undercutting you on the cost, since you are trying to make up your expenses.

The problem is not the idea of patents - in theory, at least to me, they seem like a decent and necessary idea. The problem is that not all industries are the same, and current patent law is outdated for the software industry. What we need is for legislators to wake up and realize that a one-law-fits-all approach does not work.

Easy money

[tttonyyy]

1. Patent "obviousness" test algorithm
2. Collect royalties recursively from patent office
3. PROFIT!

Re:Easy money

[DigitAl56K]

Unfortunately there is already too much recursive prior art. See here.

For a more technical read on the case

[almost entirely lega]

http://www.law.com/jsp/article.jsp?id=116463689942 5 is the law.com/Legal Times article on KSR International v. Teleflex, which will be argued before the Supreme Court today. As the article points out, depending upon how wide ranging a decision the Court issues, this case has implications for millions of patents, many of which have been considered unassailable, having stood up to years of attacks.

Test for "obvious" problem

[Dekortage]

From the article: "Some say the lax rules have fueled the rise of patent speculators--disparagingly known as "patent trolls"--who make a living off predicting those incremental changes to existing high-tech inventions, landing patents and then going after companies for infringement."

This seems to be one of the real problems with the patent system: abuse. If you can predict the incremental changes to technology, then it suggests some kind of obviousness, no? Perhaps we need a "business reality check" test for patents: if you don't make a serious attempt to commercialize your patented idea with X number of years, then your patent dries up (or at least your potential damages are capped at Z number of dollars). The patent system should exist to protect ideas, not to line pockets with gold.

Why not look at what patents are supposed to be?

[mjs0]

At the end of the day the real test of whether something should be patentable or not should be related to the reason patents were instituted in the first place...to incent investment in R&D by rewarding that investment in innovation. The reward, in the form of artificial protection from competition for a limited time, is enough to ensure the investor(s) profit from the investment. Obvious or not, if a company or individual has invested significant time/money in a program aimed at solving a problem and come up with a new and unique (even if obvious by hindsight) solution they should be rewarded not for the idea, but for the investment, thus incenting investment in innovation.

The fundamental problem with the patent system today is that it has been warped over the years into something it was not intended to be. Remember, the patent system is not something that has to exist; it is something that we as a society agree to have in order to incent individuals and companies to perform activities that are of benefit to society.

There appear to be two basic uses for the patent system that unfortunately are sometimes at odds with each other.

1. Reward investment in deliberate innovation...The benefit to society is clear...by granting a temporary monopoly on an innovation, individuals and companies are incented to invest in areas that would otherwise not have a decent return on investment due to the ease of duplicating any innovation.
2. Retroactively profit from incidental innovation...The benefit to individual companies is clear in the form of profits...however the benefit to the general economy and society is less clear but possibly present in the form of eliminating duplication of effort. A company or individual can retroactively identify innovations (that were not the primary goal of the investment) and patent these in order to license the technology to others. The societal benefit of this activity is significantly lower than (1) and certainly does not require or deserve the massive incentive that a patent delivers in the form of a monopoly on that innovation.

[Aside: When I worked for a large s/w company we were encouraged to regularly trawl through our developed code for potentially patentable algorithms, this is clearly a case of (2) not (1)]

Surely the only useful purpose for a patent system is to incent companies to make investments that would otherwise not have been made. If a company got a clear benefit from an investment and would continue to benefit whether granted a patent or not then there is no point in society (i.e. the rest of us) granting them a patent! What they have is a trade secret that should be protected by other laws (copyright?); it should not be a patentable innovation. Other companies should have the right to make a similar investment to develop a similar solution (or license the technology from the original company if that is agreeable and makes more economic sense)

Today, if a company has a trade secret that they feel they could make money off they typically have to patent the trade secret (even if only defensively) and then license it. This behaviour (licensing developed solutions) should be incented but not using the same system as that which incents investment in innovation.

So here is my strawman proposal...

• Patents should be returned to their original goal...a way to incent innovation by protecting those innovations that result from deliberate investments in R&D.
• Institute a parallel system that allows companies to profit from incidental innovations if they have value. A way of facilitating the offering of such incidental innovations as commodities rather than legislating them as monopolies is what is needed and far more in keeping with a truly capitalist approach to this, i.e. let the market decide if the innovation is valuable. It would avoid the negative effect of a making these trade secrets patentable, which actually makes innovation in related areas harder to ach

Patent rewards

[GnuDiff]

Assuming for a moment that all patents (even software) are valid, there is still a basic problem with the patent system.

The ultimate goal of a patent system is to benefit the society by encouraging invention. It does this by stimulating creative individuals. It seems that the individuals can now reap rewards, which are not proportionate to their inventions.

Let the potential reward for a patent should be, for example, at the maximum ten times the investment costs for the invention; after the inventor gets this amount of money, his patent becomes public domain.

So both for companies which invest in R&D, equipment, scientist salaries, etc, and the guy who thought of his knife+fork arrangement in his basement, their time and money are repaid tenfold - not a bad ROI, now?

The is (so far) mostly a US problem

[Terje Mathisen]

In most of the rest of the world, the required 'patent step' is significantly higher than in the US, where it seems to have been reduced to 'anything that at least some first-year students might not have thought about immediately'. :-(

About 10 years ago I was asked to do patent reviews on a group of 10 patents which company A would like to use to sue company B:

Of those valid US patents, 4 were really, really obvious, i.e. more or less the only reasonable way to solve a particular problem. AFAIK this means that the patent is automatically invalid, right?

The next group of 4 all consisted of taking a standard textbook algorith, without _any_ additional tweaks, and implement it as a VLSI chip.

The final 2 patents actually covered somewhat neat ideas.

Terje

Re:How about getting rid of patents all together..

[rucs_hack]

With the current mess I would agree. However were the current tech market not so frankly corrupt, suing for a fast buck with frivolous patents there may be some merit to software patents.

I would think that such patents should be reserved for seriously massive innovations, not navigating a menu or button placement ffs. As an example had Gary Kildall patented some of his (at the time) massive innovations, he might have been able to get a truly fair due, instead of being ripped off and left in the wake of vast corporations taking his work and making billions.

We're all very familiar with his work now, but back then he was pretty much the only guy doing a lot of the work.

Software patents are here to stay, but they're screwed up royally.

How about getting rid of IP altogether?.

[PopeRatzo]

We don't have to eliminate patents, just make it so that only individuals can hold them, and only for 5 years. No corporate ownership of patents and no passing patents on to heirs.

How rich is a person supposed to be able to get for having a good idea?

Same thing with copyright.

If you think that would hurt innovation, you are underestimating humanity to your own peril.

Medical research and patents

[Per Abrahamsen]

> The state funding drug research itself would also bring with it the not inconsequential benefit
> of the ability to concentrate on beneficial drugs, rather than drugs that will make a profit.

In most of the civilized world even the "private" medical research is tax funded, as a large part the medicine is financed over taxes. Cutting out the middle-men would be an obvious way to optimize the system for two reasons: 1) Public researchers have a much larger liberty to (and are strongly encouraged to) publish and share results at a much earlier stage than researchers in private corporations, where the final patent applications is usually the first publication of the research. 2) The current medical research is heavily unbalanced in favor of patentable items, starving out research in new uses for existing (non-patented or patent-expired) compounds for other diceases, as well as the effect of life-style changes and other non-medical treatments.

Re:How about getting rid of patents all together..

[squiggleslash]

Let's pretend you're talking about inventive rather than innovative, because I suspect that's what you meant (most people do), and "He didn't actually invent it, but he was the person who first packaged it in a form that got it into people's hands" doesn't strike me as something anyone has said patents should be granted for. Patents are supposed to go to the first person to invent something and take it to the patent office, not the first person to make it popular.

I'm not really sure anything in CP/M qualifies as massively inventive. Kildall's CP/M became popular not because it was inventive, but because it was there. It was a simple program loader with a very small library accessable to loaded applications. Many of the fundamentals in CP/M went back to libraries that came with the Intel test rig he was programming.

Yes, many aspects of it were copied into QD-OS (better known today as MSDOS), but these were compatibility hacks rather than functionality. Things like "System call 5 writes a character to the console" (or something, I forget which call did that.) FAT was copied too, but FAT is, frankly, obvious. I'm not sure how many other operating systems prior to CP/M used the same concepts, my guess would be many, but the Unix system we know and love isn't that different - the major difference is that the filenames appear FAT's equivalent of iNodes, rather than in dedicated directory files.

Kildall would probably have disagreed with you anyway. The guy was a programmer through and through. Despite all the anecdotes, the major reason IBM didn't have CP/M86 for the PC was because Kildall wasn't that interested in it as a project. Had he been so, it would have been released a year or two prior, and Seattle Computing's QD-OS wouldn't have been written because the need for it would have been absent. If he'd been interested, when the IBM people knocked on his door, they'd have been treated as any other OEM, rather than a group needing an entirely new product.

Kildall was interested in the things he was working on, much more so than maximising the money he got and controlling the market. Short of doing so defensively, as you would today, I doubt he'd have patented anything, even if something as obvious and derivative as CP/M had been patentable.

Um, the gov't does just fine thank you...

[rsilvergun]

Many, if not most drugs are created based on studies and research done by the Government. The Government does the really expensive work, and release the research for free. Then drug companies take that and polish it up into a drug. Most of the cutting edge stuff gets done at Universities on the public's dime, because drug companies won't fund something that isn't going to be profitable in more than 7 years.

Re:Isn't it strange..

[EMB Numbers]

As others will surely point out, mathematics are generally not patentable today, and patents didn't exist when Pythagoras, Leibnitz and Newton were innovating. I wonder why they bothered to innovate then ?

I don't know if the PnP junction was patented (by IBM?). All of the basic math and theory for what to do with collections of switches (like PnP transistors) was well know hundreds of years before the invention of transistors. Computers composed of tubes and/or relays and/or gears all existed.

Was the flip-flop circuit patented ? Was the AND gate circuit patented ? Was the "while loop" construct patented ? Was the "if" statement patented (well, "if not" was patented by Microsoft!).

How about a yearly contest?

[stabiesoft]

I say make it like the olympics. Each category gets say 50 patents/yr. A category would be say pharma, or chips, or fusion, etc. At the end of each year, the PTO, looks at all the submissions for the year and the top 50 get the patents. This would stop the dumb ones, (they'd never win) & make the good ones get even more noteriety. After all, one of the goals of patents was to make the technology disseminated. I ask, does ANYONE review patents for "Hey thats a great idea, I'd like to license and manufacture that?"
Of course, software patents would just not get a category. Copyright is the correct way to handle sw.
my 2 cents

Re:How about getting rid of patents all together..

[Elektroschock]

Patents are for inventions, not for 'innovations'.

The best approach to solve the softpat problem is lobbying against them. The approach was succesful in Europe and is much cheaper than any fishy patent agreement deals.

Maybe we need a different copyright style system for software designs. Patent law is designed for classical big industry needs, the individual inventor is a myth. No, you cannot fix patent law to serve software industry protection demands.

Unfortunately US patent reform lobbyists go fishing red herrings. Novelty, Obviousness... That is not the way to solve the softpat mess. It is a label for a patent examination test, a dogmatic test which has nothing to do with your imagination about what you think is new or obvious. The 'person skilled in the art' is a legal fiction and does not refer to you.

The problem can be solved but don't try to be smart when there is 'prior art' in patent reform. The inconvenient truth is that there is absolute no proof in economical research that the patent system works at all. That is a economist's credibility test. Most high ranking IP economists will admit it. What we further know is that in dynamic service markets patent law causes much harm. So let's talk about scope of patent law. Let's talk about governance of the patent system. Uhh, that hurts our poor patent institutions. The first step for the USA would be the application of a technical contribution test and a reform of the utility test. Then the USA, switched to first to file, could join the European Patent Convention which would help to solve a lot of problems.

I know how to fix the system. All I need is ressources.