Slashdot Mirror
Congress Tackles Patent Reform
nadamsieee writes "Wired's Luke O'Brian recently reported about Congress' latest attempt to reform the patent system. In the article O'Brian tells of how 'witnesses at Thursday's hearing painted a bleak picture of that system. Adam Jaffe, a Brandeis University professor and author of a book on the subject, described the system as 'out of whack.' Instead of 'the engine of innovation,' the patent has become 'the sand in the gears,' he said, citing widespread fears of litigation. The House Oversight Committee website has more details. How would you fix the patent system?"
I just hope they don't help things like Sonny Bono did.
Granted, the patent system is being abused left and right and is often used just as a precursor to litigation, but is it reasonable to believe that anything that this Congress produces will alleviate any of the problems?
This issue, along with IP, Copyrighting, and DRM should ideally be tackled all at once. However, given that both Republicans and Democrats regularly side with big business, I would expect no change whatsoever to open up competition and innovation.
Abolish it.
Rhymes that keep their secrets will unfold behind the clouds.There upon the rainbow is the answer to a neverending story
Make patents shorter term, 5-10 years. Things move very quickly these days. If you can't get it out to market in a few years, then you don't have anything specific enough figured out to patent. Patents should only be allowed for very specific implementations of an idea/product/process/whatever. No patenting what you're trying to do, just the way that you're doing it.
Along with better criteria for awarding patents, there should be penalties for people who flood the PO with lots of stuff, hoping that something will stick. Make there be a sizeable penalty for submitting patents that gets rejected. Give a person/corporation a few freebies, a couple per year that can get rejected with no penalty, just to protect the little guys who aren't quite aware of what they're getting themselves into.
And don't make the patent office earn their budget through the number patents they grant. That's like funding a police department purely on how many crimes they solve per year, when we'd rather they find ways to prevent the crimes in the first place.
One time I threw a brick at a duck.
Actually, I don't think that you are far wrong. Peer review has helped make a lot of processes more competent. It would also relieve the patent reviewers of the burden of having to be experts in all types of varied fields. The patent listings are not the sole source of prior art, and should also not be used to determine uniqueness and other reasons for granting a patent. As it is, if they don't know of prior art they seem to just grant the patent.
Things are easy to understand or figure an answer for some types of patents, but others present a much larger issue(s) with regard to patents. Does anyone remember how the recent cancer treatment was treated in the news because it couldn't be patented? Patents are driving businesses in directions that are not in the interest of the community. Peer review might well stop the onslaught of stupid patents leaving more room in the business roster for developing things that can't be patented in order to simply make some money and take bragging rights.
The current patent system has 'frozen' the business community into a position where many won't invent or improve if it can't be protected by patents. This destroys the value of patents rather than protects them. Company A may have patented an invention... fine. Now if company B wants to innovate on their products, they will have to fight company A's patent or take their chances in court. This is due to company A being given a stupid patent on obvious technological furtherance of prior technology.
Peer review would help to bring sense to this situation, even if at first it brings confusion IMO.
Support NYCountryLawyer RIAA vs People
Patent holders must license or produce the product before they can sue anybody. That should make it a lot more difficult for patent trolls.
Prohibit people from suing private citizens for patent infringement - or at least limit the damages/legal costs for them.
Make with-holding prior-art from the examiner an offense; have the people sign an affidavit or something, and enforce it.
Have a higher burden of proof for the non-obviousness. Have the people that apply show to the examiner how their idea is different from what's out there.
No patents on business methods, algorithms, living organisms and such. This is ridiculous and got out of whack due to some messed up court ruling ("anything useful under the sun [] should be patentable"). Make a law to reserse said court ruling.
Maybe a public review period where prior art can be submitted to the examiner?
More examiners. I read somewhere that they have only about an hour or so to search for prior art, due to the small number of examiners the USPTO has.
Overbroad patents seem to be the most troublesome thing. Patents should be limited to operable technologies and abstract ideas should not be patentable. An example is the idea of "one click purchasing." The technology to provide that service would be patentable, but not the idea of one-click purchasing. Ditto having a Web site that makes recommendations to customers based on past purchases- the technology would be patentable but the idea would not. I've picked on Amazon.com in both cases, but there are plenty of similar ideas that have been patented and over which litigation has occurred. Great for trial lawyers but not so much for just about anyone else.
The moment you work for a company that develops inventions and you meet their IP lawyer they tell you "if we knowingly violate someone else's patent then we're fined three times as much as if we didn't know. So under no circumstances read anyone else's patents.". So the whole thing is a complete scam and everyone involved is complicit. How come it needs a professor to say what everyone who works in IP has always known?
Doesn't it make you feel good to know that our freedoms are protected by politicans, lawyers and journalists.
Scrap the triple damages for "willful" infringement. People should be encouraged to look up patents so they can license existing inventions instead of wastefuly duplicating effort. That's what the system was supposed to be for.
Related, allow a patent search that meets some reasonable criteria (e.g. done via the patent office) to be a defense against infringement.
Allow economic damages only. If you're not trying to get money out of your patent then you shouldn't get money out of infringers.
Patent office should keep some engineers, or maybe 10-year-olds, on staff. When an application comes in, these people are asked "how would you solve the underlying problem?" If they come up with the same answer as the patent application within a day, the application is thrown out for obviousness.
The idea this congress is going to make changes in the patent system that actually benefit society as opposed to patent-holders is daft. Congress has been bought and paid for - look at what they did for Disney when they "reformed" the copyright laws. Nope, if Congress changes anything it will be to extend the length of patents and make them more difficult to challenge, which is the exact opposite of what needs to be done.
Easy. Stop allowing patents for concepts, knowledge, ideas, methods, algorithms, etc.; and allow them only for things. Ideas are easy; it's implementation, marketable products, that are hard, and worthy of economic protections.
Patents are founded upon the concept that we all benefit as a society when those who develop products that make our lives better and/or easier are given a chance to benefit financially from those products, and hence have an incentive to undertake the often difficult development and production of them in the first place. Allowing patents on ideas, etc. has no such benefit, other than for the patent holder.
Hey, if I was a smart guy, I could sit around in my underwear, simply thinking up ideas and filing patents on those ideas, and possibly end up very rich someday; but what have I provided society as a whole? Squat. Less than squat, in fact, if I use my patent to club someone who decides to actually bring my idea to fruition, preventing, deterring or delaying that idea from implementation.
Which is exactly what's happening under the current system: anyone who actually wants to create a product, whether it's a next-generation power source, a ginchy playtoy, or a cure for cancer, first has to evaluate the risk of some "submarine patent" held by some patent troll robbing them of the fruits of their work -- the real work, that of actual implementation.
"Invention is 1% inspiration and 99% perspiration."-- Thomas Edison
Quit letting lawyers and speculators control the 1%, and set the 99% free.
Learn from the mistakes of others. You won't live long enough to make them all yourself.
Eliminate all patents on software and business methods.
Barring that: Consider "doing X with a computer" - where doing X without a computer is a well-known process and the computerization is a straghtforward analog - to automatically be "obvious to a practitioner of the art", and unpatentable in it own right. (If "doing X without a computer" is patented, of course, "doing X on a computer" would similarly be "doing X" and
Software doesn't need patent protection.
- Copyright (even absent the crazy extensions in the last few decades) is adequate to avoid direct copying.
- The the time needed for the competition to recognize a profitable product, reverse-engineer it, write a replacement, and bring it to marketability is adequate to let innovators recover their investment plus profit and establish themselves in the market niche they create.
Most "business methods" have similar characteristics regarding payback of development costs. Further: Patenting them is so fundamentally anti-competitive that it makes no economic sense.
Keep patents restricted to things like physical inventions, manufacturing processes, drugs, and the like, which do have a big development cost that needs a significant time to recover.
Bantam Dominique roosters crow a four-note song. Once you've heard it as "Happy BIRTHday" you can't NOT hear it that way
Aside from completely abolishing the patent system, my suggested patent scheme is to put a total limit N on the # of currently-valid patents (to make it both easier to search to see if you are violating a patent, and to put bounds on the "slow-down" effect that patents have on the smaller innovations that occur on a regular basis in society).
Once you've got a strict limit on total # of patents valid (making them a fairly rare resource), then you can use a competitive process to play off the merits of each potential patent against each other, and to leave only the best ones valid. An obvious way to do that is to hold an auction: allow anyone to submit patent applications for each patent "slot" which becomes available, and allow everyone to bid on all of the patent applications. Whoever has the highest bid will have the patent application that they were bidding on become valid, and they will get all the rights that a patent owner usually gets.
Patent "slots" will become available either due to expiration, or being thrown out due to the usual obviousness or prior art criteria. This means that each bidder will have to perform extensive due diligence on anything they bid on, since they can potentially waste a lot of money if they buy ownership of a patent & then have it thrown out.
To make things a lot more interesting for the "small" innovators, all of the money that was paid by a bidder to win ownership of a patent, should go to the submitter of that patent. It's a big win-win for society: small innovators can win a big jackpot (and have a big incentive to contribute a steady stream of new ideas), and the people who end up purchasing ownership of the ideas are exactly the kind of people who have the resources to take fully exploit them. (You just have to make sure that bidder & the submitter aren't the same people, otherwise the auction idea breaks down).
The following addresses the US patent system, which for all its myriad faults, is in many ways the best in the world (at least as far as creating incentives for progress.) I don't address foreign patent systems here because, 1) I don't know them well, and 2) the ones that I do know a bit about all too often serve only the interests of large corporations with deep pockets.
How to Fix Patents Easily ("Dub Dublin's Proposal for Patent Reform"):
Part One: Instead of the current fixed length term of patents (20 years, in the US), make the term of patents adjustable on a sliding scale that is inversely proportional to the number of patents *issued* in that category in the trailing twelve months.
Part Two: Keep the reasonable cost of patent filings, but after a relatively low threshold of filings (say, 50 or so), make subsequent filing fees rapidly accelerate with the number of patent applications filed (also figured over the trailing twelve months). This has many benefits:
"The future's good and the present is nothing to sneeze at." - Roblimo's last
I think peer review does merit consideration, but I have two big concerns with any implementation of it.
The first concern is time. A peer review period will increase the time it takes to get a patent. The USPTO already has a huge backlog of applications, and the average time to get a patent is two years. Increasing the wait time further would both increase the backlog and delays, which in turn would disincentivize people from applying for patents.
The second concern I have is ensuring fair peer review. The main problem with peer review is the significant risk that peers will abuse the nonobviousness requirement when judging a patent application.
First there is the problem of hindsight. Many improvements seem obvious with the benefit of hindsight. For example its very easy to sit back now and say that pipelined architecture CPU's were an obvious evolution from single instruction execution architectures, but that would be ignoring all of the time and effort put into designing and building one. An invention has two parts, the conception of the idea, and its reduction to a working model. A patent should reward both and the effort put into the latter is often lost in hindsight.
The second big issue I have is in the potential for peers to abuse the review process to deny patents specifically for commercial gain. If IBM, AMD, and Intel were in an arms race to invent some new processor technology and AMD built it first, should IBM and Intel be able to protest the nonobviousness of the invention merely because they were also developing it, but failed to come up with a working model? Or for that matter, would a company be willing to risk publicizing their invention through the patent process if it were likely to be struck down on peer review? They would be better off keeping it secret (if possible) and trying to utilize it secretly in order to recoup their investment. Part of the benefit of patent laws is that society gets the benefit of knowledge entering the public domain after the patent period expires. I'm not sure a system that potentially encourages secrecy of knowledge is in the best interest of society.
The sun beams down on a brand new day, No more welfare tax to pay, Unsightly slums gone up in flashing light...
The whole patent farce has long since past its use-by date so let's just terminate it by repealling these unjust laws and treaties.
It was created to boost invention and innovation, by giving a defined monopoly for a set period in exchange for the publication of pretty precise specifications of the invention. It did what it was supposed to do for quite a few years, while the things patented were relatively simple manufactured objects. That was then, now the patent system gives the inventor an absolute monopoly for a set - imho excessively long - duration in return for the publication of totally obfuscated plans. Thus, in effect, depriving society as a whole from full exploitation of the ideas behind the patent for 20 years. Two items which come to mind immediately are the cavity magnetron, as used in microwave ovens, and xerographic copying. Neither of these really flourished until the original patents ran out. I'm sure there are 'hundreds', i.e. millions, of similar examples. I believe that commercial success from the implementation of ideas should stand on on its own. In my not so humble opinion it's morally wrong for the State to prevent improvement of manufactured things by competitors, but that is what is happening now-a-days. In practice patents make it impossible to make a better mousetrap. While that's merely wrong, using trade treaties to impose the whole crooked and corrupt mess on other societies, well that's just Satanic. But that's what is happening today and is the root reason why the US is seemingly loathed by the second and third tiers of the world's population. To put it simply, that's what caused 9/11. Now, USA: Please fix it and rejoin the Family of Nations.
How would I fix it? No software patents (can't patent mathematics). No gene patents (can't patent natural processes). No drug-renewal patents to prevent generics when all that was done was a simple reformualtion. No patenting additional "uses" for the same drug. No "look-and-feel" patents.
And above all, no "one click" business process patents.
If you're one of those people who're on the fence about software patents and think they should kept, then drop the term to seven years or so. Considering how fast the computer and software field move, seven years is a lifetime.
Any sect, cult, or religion will legislate its creed into law if it acquires the political power to do so.
How about even shorter terms? So that sometime within our lives we can actually benefit from the invention?
How about if a company can't get a working product out in a decent amount of time (either by themselves or through a partnership with another company which pays licensing), then the patent is terminated.
However, if there is actually a product on the market, they are allowed to keep the patent longer. You could even add incentives for competition by allowing patent lengths to grow proportionally to the number of different companies with products using the patent.
There are thousands of ways to improve the patent system, some of them more unnecessarily complicated than others. The REAL trick is finding one that the large patent holding corporations will actually support (or at least let pass through congress).
Thank you, and thank God somebody said that. The patent system has never worked, not even in the age of steam engines, where better designs were held back over a decade. Not even in the industrial era where patents became such a mess, they had to make "interface" patents illegal to keep the whole factory system from falling apart. Not even with Edison, the later years of his life wasting away on patent lawsuits. One of the engineers who created CDMA nearly quit electronics in disgust because of patents (even though they made him a millionaire). Not even when they last reformed them by creating a patent court, which made the problem worse because now they gained legitimacy by empowering patents. Patents with AIDS drugs are murderous, it is outrageous that African nations were sued in the world court not to use Indian made generics while over a million people died. It is outrageous that air-bags and anti-lock breaks were held back 20 years. HEY! 40,000 people die per year in auto accidents in the US alone. Patents are probably responsible for the murder of more US citizens than WWI, WWII, Vietnam, and the war on terror combined. Clinging to patents like this is not rational behavior, it's like those people who saw all the evil of the slave plantation system and said "well, it only needs reform". Another fradulent property right - how ironic.
Just how many people are we willing to murder for the sake of patents anyhow. Don't answer that question lightly, because it will probably come true.
I wouldn't fix the patent system. I would abolish it. The trouble with the patent system is that when it's time for something to be invented, multiple people invent it at the same time. Inventions don't come from a vacuum. They come from a recognition that a problem experienced by many people needs to be solved. Thus, the major impetus for creating a solution comes from the public who has the problem. So why should somebody own a solution just because they created it, when the solution has just as much to do with the existance of the problem as the existance of the problem-solver?
Or, more succinctly, all solutions are obvious in the context of the problem.
Don't piss off The Angry Economist
All the problems you name are intrinsic to the current patent system. The system is inherently unbalanced, a completely unbudgeted system where those who hand out the temporary monopolies are not fiscally responsible for the ultimate cost to the economy. As there are no fiscal constraints, quantity of granted patents has become the main interest of the system participants, which in turn grows the rest of the problem in a non-linear fashion.
Personally, I think the whole system has to be scrapped and replaced with a mediated non-monopoly system. Give the patent office a budget. Have them pay out the incentives, and gather statistics on patents used (ie, instead of the current system where you pay the patent holder, you merely report your product is using the patent, and the patent office pays out to the holder). The whole litigation and conflict issue is removed in one strike. There is no longer any reason to _not_ use patented inventions, nor is there any reason to fail to report your use (and any failure can be assumed to be an honest mistake as it doesnt actually cost you anything).
This would in turn would result in the patenting outfits being more geared towards being pure R&D outfits; they would no longer have to carry the weight of litigation, and organizations that are actually _good_ at the business of business (ie, producing, marketing and distributing) could pick and choose the most useful end products.
Next benefit, as the system is budgeted and has to be fully finananced, the patent holders have a much more obvious interest in not having an unbalanced amount of patents granted; each holders payout would have to be scaled down the more (widely used) patents are granted. Further, the system could (not that it would have to) be tuned to pay out more useful levels of incentives, to keep _more_ people gainfully paid for R&D, (especially since it would no longer have to finance legal, administrative and marketing organization). It would also suddenly fall within the realm of researchable and analysable economics; this amount of budget gives this amount of research, and doesnt actually hinder other research, ie, no more making up numbers of the top of patent lobbyists heads.
Such a restructuring also carries a huge further benefit; new and supposedly improved products would no longer carry a further innovation cost and the improvements would be adopted in the economy much, much faster (see, for example, the benefits of having new drugs or more environmentally friendly energy systems be cheaper than their older counterparts).
The most difficult part of such a reform is deciding how to finance it. The fundamental key to solving that issue is by realizing we're already paying for it, so the economy is already taxed by the system, even tho it's hidden. Some costs are less hidden like high costs we're paying for medicines, but we're also paying through other products being more expensive, which in turn makes local industry and labour more costly. We're paying through expensive litigation which makes us less competetive.
Once you realize we're already paying for the current system it's just a question of choosing a better method of paying for it, and selecting a level of financing more in line with a justifiable budget. Personally, I'd tend to be partial to a generalized innovation VAT of a percent or two, as that's closest to where we see the costs today. Preferably modulated in a way to put disincentives on products we _dont_ want and incentives on products we _do_ want (ie, you might even give newer more efficient items an exemption (as per their use of newer patented methods) for a year or two to even further incentivize their adoption in the economy, thus speeding up development).