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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.
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.
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Then what incentive is there to innovate? Why invent? 3M or some other big company will just take your idea and mass produce it cheaper than you could.
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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.
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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.
You don't have to innovate. You're perfectly allowed to sit at home eating cheese and watching television while I innovate.
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But... But that would increase invention competition dramatically and you'd be able to invent improved stuff compared to the one who was first!
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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.
And the moment you begin selling what it is you made, Walmart will purchase one and copy it, undercut your prices, selling at a loss until your company's flat broke and out of business, then raise the prices back to yours to make a profit again. Walmart hence makes the big bucks, while you go deep into debt.
"If a nation expects to be ignorant and free in a state of civilization, it expects what never was and never will be."
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.
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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.
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