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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?"
And then I would patent it.
I don't need no instructions to know how to rock!!!!
Definitely the first step in patent reform is to solicit the opinions of the hoards of thoughtful, article-reading slashdot users.
PJRC: Electronic Projects, 8051 Microcontroller Tools
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
This may rquire some reform in labour laws first, but...
The USPTO needs to assemble a panel of 4-year-olds. Each time a patent application comes in, the panel would be asked how they would implement the title of the patent (they do not see the content). If the panel comes up with a process resembling the original patent, it would be denied.
Simple...
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.
This gives us several benefits: 1) it's more analogous to a physical invention where all the parts have to be described in detail; 2) the source code to enable an invention would be free and public knowledge at the expiration of the patent; and 3) it's useful for others to understand exactly what the inventor is trying to claim as part of his patent. The public would benefit from a better description of the invention, competitors could determine exactly what a patent is supposed to do, and the patentor would not have to face the specter of business method or software patents being eliminated in their entirety (which I'm sure more than a few people will call for).
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.
How come they don't invent useful, everyday conveniences like Patent Leather anymore?
You can't talk about Wikipedia's flaws on Wikipedia
Have multiple systems. It would be the most effective way to have the patent system. Perhaps one system for drugs, another for software, another for &c.... This way different types of inventions could have different patent lives, different protections against copying, you name it.
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.
I think the time has certainly come for congress to "fix" the patent system. Heaven knows we don't need that thing reproducing!
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.
1. Get rid of the "presumption of validity". Patents, once issued, are assumed to be valid unless proved otherwise, but actually doing the legwork on every single patent to make sure it's good before approving just isn't feasable, so lots of bogus patents get passed.
But courts still defer to the patent office unless the case is unambiguously bogus.
Move to something more like the copyright system, where having a copyright issued only proves that you had a claim as of a certain date and that your paperwork was in order.
The burden of proof would then be shifted to the patent holder to prove that their patent was valid as part of an infringement lawsuit, back where it belongs.
2. Get rid of or at least weaken submarine patents. The obvious way to do this is to make it so that no damages can be collected for actions before the patent holder files an infringement lawsuit.
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.
Need a Python, C++, Unix, Linux develop
The changes would cut down on the amount of crap applicants can put in their applications helping to ensure that the actual ideas in the inventions might actually get looked at instead of useless filler. Also it would dramatically reduce applicants ability to keep a case inching along for years until the examiner gives up. There are other good things inside, but the two big changes are severe limits on numbers of claims and length of prosecution.
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.
I'd add a new kind of FOSS patent, where the idea immediately becomes public domain and anybody can implement it. Useful to defend ideas from commercial interest patents.
...) standards. If grantee belongs to standards bodies, they must disclose all patents granted and pending, or their behavior is tort fodder for competitors.
For commercial interes patents, this is what I'd do:
1) Patent gives grantee a monopoly for three years, then it expires and becomes public domain. You've got three years to make your killing, then you have to compete on a level field.
2) Be stricter about giving them out - patent really has to be for something professionals of the field hadn't already thought of.
3) Make it easier to challenge patents; if a challenger can produce prior art, patent is immediately voided, and grantee is barred from applying for new patents for ten years. If grantee had won any civil judgments regarding the patent while it was in force, any monetary judgments must be completely refunded, along with losers' legal fees.
4) No patents may be granted that could prevent other entities from implementing official industry (IEEE, IETF, ASME, NIST,
- Patents will become much more expensive. This will be ostensibly to either cover the cost of searching for prior art, or to make junk patents less appealing. This will effectively keep anyone but large corperations from filing patents.
- Rules regarding software patents will be fleshed out which will explicitely allow for patents regarding not only algorithms, but also functionality and look-and-feel.
- The length of patents will be shortened.
- ...but they will be renewable.
- Patents will no longer be public- a company can apply for a patent and keep how the product works as a trade secret.
- Some sort of DMCA like legislation will make it illegal to work around patents by comming up with a new way to do something for which a patent already exists.
Now I just hope that, unlike Orwell's 1984, they politicians don't use my warning as a how-to manual instead.Famous Last Words: "hmm...wikipedia says it's edible"
Disallow patenting an idea of how to do something. Proof of concept must exist. Limit software parents to 10 years and require that the source code and all source code for updates and/or patches be given to the USPO. After the 10 years expires the source code becomes public domain to be used by startups, students, and competitors.
Deny all patenting of genetic and biological technology.
If a company cannot make a profit off an idea that they have sole access to for a decade, then that idea or company is faulty to begin with anyways. Let somebody else have a chance to make the idea work.
- I voted for Nintendo and against Bush
company. The truth is that large companies regularly steal ideas and then BEG you to sue them. If you do, they grind you into the ground. You think that SCO vs IBM is long winded and expensive? Not even close. There are suits that take a decade. and the small guy always lose because they have to settle for a fraction (or sell out to somebody with DEEEEPPPPPP pockets).
I prefer the "u" in honour as it seems to be missing these days.
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
How would you fix the patent system?
1. Patents expire X years after the invention, not X years after approval. Get rid of the incentive to drag the process out.
2. Add (or enforce) a requirement that a patent must describe the invention in a manner comprehensible to someone with expert skills in the field and in sufficient detail to allow that expert to implement the patent. A finding by a court that the applicant has failed either of these two duties is grounds for invalidating the patent in court.
3. Allow anyone to challenge the obviousness of a patent during the application process by asking the PTO to convene an experts panel. The challenger and applicant both must post an X thousand dollar bond. The PTO then selects 5 experts in the appropriate field from universities, industry, etc. 4 or 5 of the 5 experts must find that in their professional opinion the patent is novel. If they do not, the patent is rejected and the challenger gets a refund. The applicant's bond is used to pay for the panel. If they find that its novel then the challenger's bond pays for the panel and the applicant gets a refund.
Moderating "-1, Disagree" is simple censorship. Have the guts to post your opinion.
show a good faith effort to capitalize on their patent
this will prevent patent spam: a**holes just filing patent after patent with no intention of capitalizing on the invention, but every intention of suing if anyone else ever actually makes money off the idea
so it couples the state of holding a patent with the intent to move forward with it. you can hold a patent, but if you don't do anything with it, it ceases to protect your idea. "dead" patents, patents that are filed and just sit there unused, become essentially no patent at all
the legal standard for what a good faith effort is does not have to be equal for the little guy and the large corporation, so there is no built-in prejudice in favor of the large corporation when invoking the concept of a good faith effort
it's similar to the philosophical difference between a right and responsibility. sure, you have a right to drive a car, but you also have responsibilities once you get behind a wheel. likewise, you should have the right to file a patent, but once you do so, you have a responsibility to society to make a good faith effort to capitalize on it. society is prepared to reward you for having a bright idea, and set up a structure to be protected by society while you try to bring your idea to market. so, now you must put some persperation into actually making something of it, or you forfeit society's protections
as it is now, just because you dream something up and sit there and do nothing should not reward you the same legal protections as a guy who is actually struggling to bring the same idea to fruition
to mangle edison: inspiration without perspiration should have no legal protection
intellectual property law is philosophically incoherent. it is your moral duty to ignore it or sabotage it
Here's how I'd approach the problem:
(1) Every year, a patent recipient names the price of an unencumbered license, $X.
(2) Every year, to renew the patent, the patentor pays $X*(2^r) for r being the number of previous renewals.
(3) As soon as a patent is not renewed for a year, it ends.
What this means:
(a) It is not practical in the long term to use a patent to prevent something from being built -- a high $X means a high renewal fee.
(b) Patents that are genuinely useful get renewed; patents that are just so much legal cow-dung will not be profitable to renew for as long.
Problems with this scheme: The exponent constant might need to vary by field; the scheme would have to be revised for design patents and plant patents; might conflict with various treaties; might be preferable to restrict the ability to use a small X one year and a larger one the next year (require X to be non-increasing?).
What about "only one to file"?
Patent applications are secret. What if, in the interval between submission and grant, another application is received covering the same invention, all overlapping claims are denied? The standard is supposed to be "not obvious to someone versed in the state of the art." If there are two submissions for the same thing in a short period of time, that proves that the state of the art is naturally evolving toward the scheme in the application.
The biggest problem would be the ability to ship products in that interval, which is currently practical.
The window could be more explicit, too: application date plus two months, for example.
The aforementioned practice is patent #9,763,348.
Says it all.
One thing that should not change is the current practice of granting a patent to the person who can show that they produced an innovation first. The corporations' desire to switch to "first to file" will only serve those who can afford to keep armies of patent lawyers on staff, and who can file thousands of applications per year. Basically it favors and preserves the incumbents. The Horatio Alger story of the individual inventing something in his garage will become a fading myth.
Will Rogers said "Be thankful we're not getting all the government we're paying for."and
"With Congress, every time they make a joke it's a law, and every time they make a law it's a joke.",
"This country has come to feel the same when Congress is in session as when a baby gets hold of a hammer." -
Amen, Brother. Amen.
Read more Will Rogers here
Too lazy to create a sig...
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).
There was a time when Copy Write Laws applied to software. It makes sense, because the hardware has already been designed and is working,(If you are Intel, it is pretty much most of the time). The only thing that the hardware is doing is reading machine instructions, and then executing those instructions already engineered into to chip. Patenting the instructions sequence is the issue. But that makes no sense because the patent already exists by the CPU maker as a process of executing ANY SEQUENCE of machine instructions. A further issue could be rasied as to patenting a particular sequence of instructions, but then again, the patent holder of the CPU chip ALREADY OWNS the patent for ANY set of machine instructions that are processed. Copy Write laws already handle software, the laws have been around for 100's of years; It works.
Maybe there needs to be better qualified personnel to review patents. Seems like the ones there now really have no clue about researching things like prior art...etc
"The Brady Bunch is back...working homicide"
My first item is simple common sense, at least to anyone on /..
Second item would restore patents to individuals. The concept of patents was not designed or intended to foster large portfolios wielded by legal entities with mountains of cash and armies of lawyers. It was not even designed with Edison in mind. Restore patent holding to the actual living, breathing inventors, and let their employers have first refusal on any patentable item developed with company funds.
Third, business moves a lot faster than it did 50, 100, 200 years ago. Allowing patents to last 20 years is absurd in today's market.
Public Universities should not be allowed to be complicit with large corporations in holding patents hostage, especially in the science and medical fields. Actually, this could be made irrelevant by #2.
In general, reform the entire system to be oriented toward individual inventors, rather than Corporate innovation squatters.
If Congress does anything about this, it won't be caused by any domestic forces. The EU is gaining strength in these areas and pushing lots of reforms through. If the US wants to continue trading with Europe, many of America's draconian laws will have to be updated, including patents.
Abolishment! It's the only way. Silly question.
What?
Have the cost of filing a patent increase with every patent that you file in a given year. A small company that files a few patents a year will pay the normal rate. Large companies will see their per-patent cost increase as they file hundreds or thousands of patents per year. The additional money will go to hire more examiners.
This plan will allow small companies to continue filing patents without paying more. It will also act as a disincentive for large companies (like IBM) to ask their employees to submit as many patentable ideas as possible. I used to work for IBM, and we were always encouraged to patent whatever we could. Every stupid-but-patentable idea I had, even if it had nothing to do with my job, was submitted for consideration. Most didn't stick, but some did, and I got paid for it.
And the men who hold high places must be the ones who start
To mold a new reality... closer to the heart
The reason your idea would not work is that there is no duty to conduct a comprehensive search for a prior art before filing a patent application. The reason that there is no such duty is that a full search of every printed publication that is in existence would cost hundreds of millions of dollars. Under Federal Rules (37 CFR 1.56), patent applicants are required to submit material art that they are aware of, and patent applicants commonly submit dozens of prior art references for consideration by the USPTO. If an applicant (or its attorneys) violate Rule 56, the patent can be invalidated for inequitable conduct.
Additionally, due to the billions of prior art references that exist, invalid patents are often granted without any fault whatsoever by anyone. Should my client in Arkansas be punished (for a sizable penalty as you suggest) for not being aware of a 1990 paper (written in Greek) that is only accessible by manually flipping through a card catalog in Athens? The 1990 Greek paper, indexed only in a physical card catalog in Athens, would be prior art that could invalidate my client's patent, why should he (or I) be punished for not finding it?
Make the USPTO liable for damages, wrongly-paid royalties and legal fees caused by patents that are eventually found to be invalid. Fund the USPTO's legal damage budget by docking up to 25% of the salary of its employees. If this were done, they would certainly be just a little more careful about what patent claims they rubberstamp.
...disallow patents for software and it will make a big difference on the work load of the patent office.
Abstraction Physics is a perspective on software that shows software is in no way shape or form of a nature patentable. It actually falls into the three main things universally accepted as NOT patentable. Physical phenomenon, natural law and abstract ideas. The forth is math algorithms as many claim software is that, but math is a subset of abstractions.
As a thing to do, take any software patent and re-write the claims and such to be in terms of common, non-novel etc.. perspective.
I intend on doing this to a patent that mentions my work in its "other references" semantic user interface patent number RE39,090 (IIRC)
Or could we? Could we just drop patents from this point forward and limit the power of the existing ones until they expire.
... ummm ... 18-90's anymore. We don't need to be persuaded off the farm to make and market devices. Many of us do that for a living. In fact I expect without patents we'd innovate even faster, being able to build freely without first consulting with armies of lawyers galore. You would be able to create something without expecting that knock on the door from IBM with their hand out wanting for dead president salad so that you can use a device that might fit into the description of some vague patent application.
If problems come up I'm sure we can make laws to deal with them. Maybe I'm just a small town fool, but I think everything would continue better and faster than normal. This is not the 90's
You could also make people have a real working version of the item listed in the patent application rather than a guess of what someone else might make. Your patent protection would be limited to that.
It's complicated and complicated things attract lawyers like stink on poop. Make it simple and they'll try and complicated it with things like the legal definition of the word "and" and such. So, my instinct it to get rid of it. Which is likely a bad idea in many people's eyes.
Why are you reading this post. There are smart people making better points. Just look at the following reply. Wow! That is a nice one.
-- Prepared at the direction of, or to be sent to Legal Counsel, in anticipation of litigation. Attorney Client Pri
Shorter patents (5-10 years) would probably kill the drug and biotech industry. It takes them 10 years and 1-2 billion just to get their drugs approved. So the company only makes money during the last few years of the patent as is.
Right now, a patent can only be rejected if it is obvious, if there is prior art, or if it doesn't describe the invention in enough detail. If a patent examiner is handed a patent that is precise but incomprehensible, he has no grounds on which to reject it. I propose the following be added to the policies of the USPTO:
A patent shall be rejected if it either
- fails to use standard terminology where appropriate, in a way that makes reading of the patent more difficult
- describes aspects of the invention which are minor or irrelevant but not novel in excessive and unnecessary detail, or
- is in any other obfuscated, in the opinion of the examiner.
The typical patent is a very long description using precise but completely non-standard terms. Patents spell out in detail things that a person in the field would use one or two words for, and as a result, patents are hard to read, hard to search and hard to judge. Bad patents slip through the cracks not because the patent examiners don't know what they're doing, but because the patents themselves are extremely difficult to read.
The patent office has some obvious problems, but in all these comments it sounds like the litigation not always the patents is the problem. Would much of the problem be solved if court fees were regularly charged to the loser of a case? Would this take care of big business bullying the small companies and other issues that come from a lack of money?
I would fix the patent system the same way a vet fixes a cat.
"Trademarks are the heraldry of the new feudalism."
I'd also allow a patent examiner to reject a patent for no reason. If they get, say, 90 generic applications from a patent mining company, all broadly worded, then they can just fail them all.
"Patent Rejected: Judgment Call"
Yeah, I know. There are problems with that. Let's make a list of them.
---
ECHELON is a government program to find words like bomb, jihad, plutonium, assassinate, and anarchy.
Patents are a form of intellectual property. As such they should attract a property tax. If you don't pay the tax you lose the property.
I'd suggest say $5000 per year per patent but I'm sure it could be adjusted depending on what kind of patent it might be. For instance a "software" patent might attract a high tax load same as a highly desirable view lot attracts a higher tax load. Fair is fair eh?
In the case of a company with a patent portfolio of say 10,000 patents this might generate $50,000,000 in taxes.
I can see little reason why a company such as Microsoft for instance should ask the USA government through its patent system to create intellectual property which it might seek to create a monopoly out of, while at the same time they should expect to not have to pay a tax on this newly created property!
If $50,000,000 in taxes is too low, then the tax rates can be adjusted.
I would think it would not take long at all for companies to start looking through their patents and figuring out which ones they really want and which ones they don't want.
Then, if they turn them in this would clearly indicate that perhaps the patents question should not hae been issued in the first place.
Another idea is that I'd like to see the individual states allowed to levy a state level tax. Clearly the property in question (while virtual) is created by federal government legislation. However, the companies in question have offices in various physical locations and it would seem to make sense that the states should have some opportunity to cash in on this new revenue source.
Now... I don't want anyone trying to tax my moon property until I have representation!
A number of posters are arguing that the patent period needs to be reduced to some rather short interval, typically around 5 years. The problem is, it often takes about that long just to get the financial backing to turn your patented widget into a viable commercial product. A too short of a patent period and no one would be stupid enough to fund a patented project. Just wait a few years and you can skip paying the inventor his share.
The problem has never been how long a patent lasts. The 20 year period is actually quite reasonable. The problem is how easy some really stupid shit can be patented, and how much of a pain it is to get a bad patent revoked.
Unfortunately, I'll bet money that Congress will do to patents what they did to copyright, make a bad situation worse. (bad for the little guy, wonderful for the megacorps).
-- Will program for bandwidth
Solo inventors have a major problem because of the defects of the patent system as it has evolved. It used to be helpful, I guess, but now it is instead a major inhibitor. A) Patents are expensive. B) the provide almost no protection against big companies who just run roughshod over the court system until the grind the little guy into the dust and steal their ideas anyway. Therefore there is a HUGE disincentive for solo inventors to field their inventions no matter how good the invention is, or how much it might benefit society as a whole. When facing a fundamentally broken and totally unfair patent system I would think that many inventors wind up feeling that they would rather not produce the invention rather than produce it and then see it stolen from them by some big corporation. How to fix it? The abuses of the patent system must be punishable by massive fines. Also the patent system should return to its original guidelines. What appears to have happened is that the Patent Office has decided that awarding as many patents as possible is a good idea and lost the concept of due diligence. They need to throw out a huge number of patents (sorry no money back) that defy the original patent mandate. Roughly that's how I think you fix it. But I'm no lawyer. It is simply common sense.
How would you fix the patent system?
I would limit the total royalty fee. That way you could develop a product without fear of getting slapped out of the blue with a huge show-stopping royalty.
As far as how to divie up the fixed chunk, that can get a little sticky and has led to endless debates. Perhaps have the patent claimants fight over who gets a stake and how much rather than the manufacturer. This shifts the burden away from the manufacturer. The Mfr pay their fixed max percentage, and let the patent claimants battle among each other. Patent credit battles happen regardless of the system, it is just that this shifts the burden to make it easier to produce products.
Table-ized A.I.
Disallow patenting an idea of how to do something.
I think another way of saying this is that one should be barred from patenting goals. You can only patent a solution/implementation to a goal, not the goal itself. "One-click shopping" is a goal, not a solution/implementation, for example.
Table-ized A.I.
For all patent supporters, here's a simple question:
- *How* would software and business patents encourage innovation?
Seriously. How many of you try to get ideas by looking at a patent database?
*crickets chirping*
Okay. I'm sure some of you have tried looking at published patent applications, just for kicks or because it's your job. Of the people who have, how would you describe the software/business patent application?
1) It's easy to understand and provides enough details to implement the patent.
2) It's ambigious and/or overly broad and/or obvious and/or incomprehensible?
Did anyone pick (1)?
*three hands out of a googleplex*
Okay. How many of you have *independently* come up with an idea that you later (by accident or because a patent lawyer told you) found out was patented? (e.g. 1-click patent, multimedia patent, etc).
If you've written code and heard *any* patent news, the answer is probably 100%.
How many of you actively try to *avoid* looking at the patent database since "ignorance is bliss" and "if you claim ignorance, the judge might be merciful"?
*all kernel developers, Mono Developers, etc raise their hands*
If I *independently* coming up with an idea, is there any fair reason why I could pay someone else because they paid to document (however vaguely) the idea?
*crickets chirping*
So how again do patents help spur innovation instead of bury it in legal red tape?
Here's two ideas that's more important than any of those suggestions. Either one should help get rid of the patent troll problem.
1) If I *independently* came up with a software/business patent, then I don't have to pay the patent fees.
2) If I *independently* came up with a software/business patent, then the patent should be revoked since it is either obvious or derivable by an expert in the field without the help of the patent.
Personally, I prefer option (2) since it ensures that a patent is alive only as long as it's valuable.
If an idea is so revolutionary that no-one else would be able to re-invent it for 100 years, so people *have* to look at your patent, then perhaps the idea *should* be patentable.
If however, you come up with a revolutionary idea but it's quickly independently rediscovered elsewhere (e.g. quantum mechanics, the air plane, the phone, etc) then you don't deserve the patent. The time was simply right for the idea and you were just the one to take credit first.
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
Patents should be issued to encourage use of the patented techniques, of course in addition to encouraging people to develop new ones.
patent's should have an additional restriction of how much royalties can be collected..
It would be possible for developers to patent a partially implemented idea, so the idea gets shared earlier, and keeps a revenue stream going for the designers. -- Maybe somebody is better and being a "closer" actually making the idea work, and other people are better and brain storming. Both are valuable, and the "closer" shouldn't get all of the rewards.
Large corporations are basically getting so large that they are functioning like the government-- they control aspects of our life in a near totalitarian way. The argument supporting that statement basically has to deal with subversion of the people and formerly consentual business relationships turning into controling entities.
I've got a problem with corporations sitting on patents, keeping people from being able to integrate ideas into functioning products.
More ideas
Maybe a company could apply for a patent-relief status, where 1/3rd of income goes to pay patent royalties, and thus would be able to incorporate patents into devices without royalties..
--BAH, my ideas are rough, but I think I'm close to something workable.
Patents are a device that give their holders governing rights over other people.
The government could restrict licensing fees.
The patent should be applied only to an individual, and not be transferable.
We should make them a lot easier to search and obtain.
Please use [ informative / summarizing ] SUBJECT LINES
Flame me here
What makes anyone think that the thundering herd of dumbass in Washington will make it better? They will vote the way their largest contributors tell them (M$, Exxon, GE, Oracle, RIAA, MPAA...). Most of them can't even understand the problem and won't try to learn about it. They do so little themselves and are spoonfed knowledge by staffers. You don't even need to bribe the congresscritter anymore, just the staffer in charge of that area. They are much cheaper too!
Professional Politicians are not the solution, they ARE the problem.
1. Eliminate software patents completely.
2. If prior art is found during the grant process or after the patent is granted, fine companies for not performing a reasonable prior-art search. Make the fine large enough to make them think twice about not performing the search in the first place.
3. Require peer review, especially for prior art.
4. Reduce the incentive for the USPTO to grant nearly every patent by reducing the fee charged by the USPTO. Find another way to fund them and reduce the stupid government costs associated with the department.
5. In cases where a company is found to be infringing upon a patent, make them pay twice the attorney's fees of the other party in addition to whatever additional monetary damages the court may determine are due.
6. When a suite is filed claiming infringment, impose a mandatory injunction upon the patent, item, etc. in question so that the infringing company can not make any additional money from the product while the suite is being decided.
7. Require extensive prior-art searches by the USPTO.
8. Deny patents with statements similar to "Anything resembling this system is assumed to fall under this patent." I've seen these types of statements by large corporations whose aim is to create a monopoly.
9. Require utility patents to be more specific.
10. Eliminate all naturally occuring gene patents. Why the hell should anyone have the right to patent something that nature created!?
11. Update the USPTO computer systems and shitcan the seemingly endless paperwork involved (it's not the 19th century any longer!)
PGA
How about having two tiers of patents, with differing levels of difficulty required to have your patent accepted for the second tier? This is a rough idea, as I'm not entirely knowledgeable of the patent system, but it can be expanded by those paid to think of these things by the USPTO.
The first tier of patents would cover everything currently accepted by the patent office. In essence, it would make all patents that follow the current patent application procedures last a much shorter period of time, let's say 5 years, instead of the current 20-year patent length. Note that to avoid controversy, this new plan should not change the length of patents already granted, only new ones. At this point you're probably thinking that a reduction of the patent's length will only solve one problem (that people are holding patents on obvious technology for two decades simply to sue people who pursue said technology). The genius of this two-part solution is actually in the second step.
The second tier patent could be applied for once your initial five year patent is accepted (HOWEVER, it would have to be applied for within the first year (or so) of the first patent, to prevent possible abuses). This second tier would be more difficult to qualify for: you would need to prove to a more specialized board that your invention or idea is unique (non-obvious), and that you're using or will be using the patented idea before your five year patent expires, and that there is absolutely no prior art of your invention or idea. Because there is more burden on the patent applicant to prove they qualify for this second tier, there will then hopefully be much less applicants applying and the USPTO will be able to more quickly process these patents with patent reviewers that specialize in reviewing these more advanced patents. Perhaps deals can be struck with universities, some kind of tax incentive or grant, to temporarily borrow their brainpower to process some of the most difficult or controversial patents. Also, a public input phase would be feasible with this second tier, because of the lower number of applicants.
This idea can obviously be expanded further. It seems quite obvious to me, however, that this process will naturally weed out the more controversial patents, because they would need to pass a more difficult application process with people who aren't burdened by the weight of a zillion stupid patent applications a day. Those who are just looking to make a quick buck off their invention can still do so with the same amount of effort, yet those looking to abuse the system will easily be caught and denied. The length of the first and second tier patents can be tinkered with to find a system that works with today's economy. Lots of things in this idea can be tinkered with. But I don't think any problems will be solved with the current patent system, unless they realize that some patents are always going to be more controversial than others, and adapt some system designed to catch and evaluate them.
DRM = Digitally Restricted Media. This is a viral sig, pass it on.
Let's face it. Back when you had to submit a working thing in order to get a patent the system more-or-less worked. The "inventor" had to actually invent the damn thing before it could be patented.
We also have the precedent that just putting two things together without changing their basic function was not a patentable practice. (This is the "conveyor belt plus cash register" ruling.)
Since software is _solely_ the practice of putting existing things together (those things are called "instructions", or if that is too fine grained, then APIs and SystemCalls, or even "features" like "client" and "server" and "database" and "GUI" and "button" and "field" etc, this "mere aggregation" is evident at every level of software).
So now, even if the weasel-words are unclear, if there isn't a "reasonably working prototype" there isn't a patent.
That should make a lot of the obvious things obvious and prevent "idea patents".
Then, just for good measure, stick with the actual legal precedent which says that the "software element of an invention is patentable." This is _FAR_ different from "software is patentable". In short, nothing in precedent says that _pure_ software is patentable.
Mere aggregation, not being patentable, should infer to the non-brain-damaged, that pure separation should not be patentable. That will get rid of all the "but this is a client doing part and a server doing part". Besides the "division of labor" wasn't particularly patentable anyway, if it were, you could make anything that someone else had a patent on just by making sure you made it with more steps or more people. (etc.)
And context was _never_ patentable. That is, if you cannot patent "sewing a pretty flower pattern into a cloth" you cannot patent "sewing a pretty flower pattern into a cloth to make people more happy".
So:
No physical invention, no patent.
Mere aggregation, no patent.
Pure Software, no patent.
Pure Methodology, no patent.
No functioning prototype, no patent.
I would add a "percent of life cycle" limit to the patent. If any one instance of the patented invention would, on the average, have a life cycle of X, the patent should be valuable for no more that 1/2x. So if you invent a new breaking system for a car that has an expected life cycle of 10 years before replacement, the patent would be good for five years. I would have disposable parts (break shoes etc) not count to that life cycle if they weren't the entirety of the invention (new breaking system). Basically, if you _invent_ a thing, you get to own the market until the point where the after market would come into life. That way you get the prime cut of the money but you don't get to prevent incremental innovation that invariably arises from the after market.
So the inventor gets one long turn of the crank, but they don't get to force the crank turners into indenture.
Next, publication, by anyone, anywhere, before the date of filing for the patent provides prior art. By one day, not one year. To be a valid patent it must first be a trade secret. This prevents squatting on or stealing from the commons. It also prevents marketing scams. You don't get to convince people to invest in the possibility of your patentable invention by open market manipulation. You also don't get to overhear something interesting on a chat board and race to the patent office to steal the thing from the commons the real conceiver (sp?) donated it into.
Finally, it should be pretty easy to remove the presumption of correctness of a patent. No more of this guilty until you prove yourself innocent bull.
Oh wait!
FINALLY: If something is copyrighted, it cannot be patented, if patented, it cannot be copyrighted. If trade secret it can be promoted to patent or copyright but not both. You have to chose. You only get _ONE_ dip from _ONE_ bucket (except where you are promoting a trade secret which you get to do once, like castling in chess 8-). That means that if you publish s
Innocent people shouldn't be forced to pay for inferior software development.
--"Code Complete" Microsoft Press
How would you fix the patent system?
Put it back the way it was! The patent system wasn't "broken" until Congress started meddling with it, as it happens in direct violation of the Constitution. Matter of fact, it worked well for a couple of centuries until some corrupt politicians screwed us over. Roll it back, and then see what, if anything, really needs to be fixed.
The higher the technology, the sharper that two-edged sword.
1. If you're not selling it as a stand-alone product, you can't patent it. Thus, a part of an automobile sold as a part can still be patented. However, the transmission control system that's incorporated into the transmission can't be patented--not unless the control box is sold as a separate part. This may not be a perfect way of going about it; but the objective here is to eliminate the huge swaths of "subsystem" patents taken out for what's really nothing more than the day-to-day work of an engineer. This may not be the ideal way to solve the problem, but imagine that you are wondering if you can copy something, say, a control box. You see that there's a patent on the box, and you see that it expired 5 years ago. Now you can copy the box with confidence, knowing that there aren't any "gotchas" inside. OK, not totally--there might be parts inside, but if they aren't marked with their numbers or sold separately, they can't be patented. If a part is too small to be marked, the numbers have to be inside the case or something, or the manual has to point you someplace... kind of like food labeling. You need to know what's inside stuff, and when it's safe to copy it. Actually, more like an expiration date on food, but it goes good instead of going bad.
2. Obvious to most people here: no software patents. Software patents just don't make any sense. Copyright, good (before you argue with that, remember there's no GPL without copyright). Patents, bad (for everybody in software).
3. And finally, the public is allowed to submit, for a very nominal fee that is just enough to discourage frivolous filings, pointers to prior art. Patent examiners must read said claims, and reject patents where the prior art is bloody obvious. The legal defintion of "bloody obvious" shall be that it's bloody obvious.
For all intensive purposes, "whom" is no longer a word. That begs the question, "who cares"?
preach it bro! How many *millions* of laws on the books now? Extrapolate 20 years from now. How the heck would ANYONE avoid being a "criminal"? All new laws should have automatic sunset clauses, they all should be vetted as to being lawful FIRST, not passed then some poor dude has to go "break" a law and get it heard in front of the supreme court, there shouldn't be multiple laws passed hidden inside of unrelated bills, etc. We have a lot of ways to improve this system. I think an immediate freeze on any new laws and several years of review would work for a starter.
As to patents and reform, a good start is no more software patents or business process patents. witness: software is allegedly patentable, and they get granted, yet has *no warranty required*. Only "product" out there with such a deal. El wrong-o. If it is worthy of a patent and is called a product, it needs to come with a warranty. If anyone-you can't handle a warranty because it would be "impossible" to code that good, no probs, give up patents then because it is obviously not a workable product, it is a work of art, and stick to copyrights, as every other written *thing* is.
I would not be opposed to special case extensions for an industries like these where there are lengthy and mandatory testing processes placed on them by the government.
One time I threw a brick at a duck.
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.
The filer pays a fee to the Patent Office (PO) when they file.
The PO examines the patent. If they reject it, end of story.
If the PO doesn't reject the patent, the basic description is posted publicly for some period of time (6 months?) and the filer can say the patent is pending.
During the time the patent is posted, anyone (the challenger) can object to it and bring prior art to the attention of the PO. If the PO agrees that the prior art invalidates the patent, the filer pays a penalty (based on how obvious the prior art is -- if the prior art is on Wikipedia, they should pay a significant penalty, while if it's in a footnote in a book completely unrelated to the patent, the penalty would be small) to both the PO and to the challenger. If the PO believes the prior art is not applicable, then the challenger pays some sort of penalty to the PO.
If the filer knows about prior art but doesn't show it when they file, some challenger will challenge the patent and the filer will have to pay the original fee plus two penalties. The chance to win a penalty (or bounty) is the incentive for the challenger to look for prior art. If the patent is challenged, the PO will be compensated for dealing with the challenge by the loser.
No don't sue yourself, After that has happened go to competitor of theirs (with deep pockets) come to suitable licencing/patent buyout arrangement then let competitor sue
Your'e all thinking it, I just said it for you
http://arstechnica.com/news.ars/post/20070115-862
Need I say more?
"You're everywhere. You're omnivorous."
1. Congress should declare a moratorium on granting or maintaining patents in the software and business method fields. They should also have the PTO periodically advise them as to whether similar moratoria should be imposed in other fields, and whether these (or others that are imposed) should be lifted.
Remember, patents exist to encourage invention, disclosure, and bringing-to-market of inventions that otherwise would not be. However, there are other incentives for inventors to do those things besides patents. At the present time, in the two fields named, there appear to be a lot of strong incentives to invent, disclose, and bring to market the inventions in those fields. As far as I can tell, patents not only seem to be failing in encouraging these things for those fields, but they are probably discouraging inventors and producers. Perhaps this will change over time, which is why there should be expert advice on that. And perhaps other fields will turn out to be like this. But right now, I am willing to bet that the natural incentives that exist apart from patent incentives, (e.g. generosity, academic reputation, being first to market, etc.) will yield the greatest public good.
2. The courts should not so strongly assume a lack of invalidity; a preponderance of the evidence standard should be used instead of the clear and convincing evidence standard.
3. Giving so much power to the Federal Circuit was a mistake. We should go back to using the regular courts. This is because the possibility of circuit splits isn't a bad thing, it's a good thing; we get the chance to have several different rules on a subject which may then be considered by the Supreme Court. A lack of meaningful differing opinions means that there is a greater chance that we'll get stuck with one approach to patent law which is not necessarily best, but is merely prudential within a single circuit. Or to put it another way, having more ideas about patent law can't possibly be worse than having fewer.
4. Applications should be published in full immediately upon receipt by the PTO. Applicants should not get a choice to have trade secrets directly covering inventions which they seek to have patented, not for any period of time.
5. Furthermore, the best mode disclosure should be expanded to cover all modes known by the inventor, as well as assignees and licensees, during the entire lifetime of the patent. They could be independently patented if otherwise eligible, but they shouldn't get to be a secret.
6. The PTO should not be self-funding or seen as a revenue generator. Put all their income into the general fund, but fund them from the general fund and do so fairly generously.
7. Oppositions, et al that happen to involve already-examined prior art should be allowed if reasonable. The PTO needs to accept that sometimes their examiners miss things that are right in front of them.
8. The scope of prior art that the PTO looks at as a matter of course ought to be enlarged significantly.
9. Examiners ought to have an easier time of it, with more time to dedicate to patents that in their individual judgment warrant the attention.
10. Term lengths should be carefully looked at, and the possibility of variable term lengths for different fields (e.g. less time for mechanical inventions, more time for medical inventions) ought to be considered.
11. First to invent is important and needs to continue to be part of our system. Aside from that it's constitutionally mandated, it's really the only sensible way to do things.
12. The experimental use exception should be shored up, and a personal use exception would also probably be a good idea. A general purpose catch-all exception, similar to fair use in copyright, might also be a good idea, provided that like fair use it was also meant to provide exceptions where the patent law conflicted with patent policies.
That's about all I've got off the top of my head, but then I always found patents boring. I'm a copyright guy, really.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
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
"If things worked out the way you are supposing, then BSD or equiv. would be the preferred license rather than the GPL."
I'm not the guy you were replying to, but I did get something back from the BSD license... I got an Internet.
The reason TCP/IP is so widespread isn't because AT&T and Novell didn't try to strike a deal to make sure the Internet backbone ran SPX and IPX, or because Microsoft didn't try to get everyone to use NetBEUI, it's because a DARPA grant covered some research, and because the code that resulted from that was under a BSD license, everyone could grab it and use it for free. And when everyone did exactly that, things interoperated.
Just to point out the obvious, but the vast majority of inventors are corporate employees who assign the rights for anything they invent over to the company that's paying their paycheck before they invent anything. If they are lucky, then they work for someone who gives them a plaque or a small bonus when they get a patent issued. So the benefit to the actual inventor is minimal. If they are really lucky, their company collects patents for defensive purposes, rather than beating people over the head with the patent bat to stifle competition. Such defensive portfolios tend to FUD the small guy out of business before they start.
Even with a defensive portdfolio, the companies actually producing product are effectively stripped of their defensive capability by patent holding companies, who don't counter-infringe, and so are not open to negotiation because they produce *absolutely nothing of value*.
So as for reform, you would need to start by disallowing third party assignment (which is how these patent holding companies get the vast majority of their patents).
Then rather than going off half-cocked with a "throw it all away" approach. see what happens after that and maybe one or two other small adjustments, before turning the patent system into your own personal experiment in Second System Syndrome.
Just MHO...
-- Terry
...and they are very proud of the work they do. The PTO is one of the few government agencies which actually operates in the black, generating more revenue than the PTO uses. According to an examiner... "the PTO must be doing something right!" ... especially compared with other government agencies which bleed red ink.
The hidden costs of bad patents is not readily apparent to the PTO examiners. And the incentives (bonuses, efficiency) in the PTO are designed for quick turnover of the backlog. When you add in the fact that a denied patent takes an incredible amount of extra time (3-10x) to process, it's bad for the examiner, it generates little for the PTO... it's easy to see why the PTO emphasizes a quick approval and a less than cursory examination.
In light of this internal incentive scheme, all the strange "obvious" patents that we actually see coming out of the PTO these days make sense.
To fix this, yes, deny business method patents, yes that software should be copyrighted but not be patented, and update patent validity time limits. But more importantly, I would change the the application fees to change the work incentives for an examiner. A denied patent costs a lot more work for the examiner than an approved one, so it should cost a lot more. Maybe 3-4x as much. These are the changes I'd ask for
Examination. Include a large deposit with each patent application, to be refunded if the patent application is approved. If approved, the examiner rates the approval as being "clear, insightful,easily read, ok, poorly written, etc.. This rating will go on the patent record, and if the patent is ever challenged, it would be court evidence that the PTO thinks it's a well-written patent (e.g. hopefully stronger and not as ambiguous). An approved patent would have an incentive to be well written, both to be get quicker approval and to be stronger in court.
To deny the patent, the examiner must outline how it is deficient (this is the extra examiner work) *and* the PTO keeps the deposit and the examiner gets a bonus. Since the examiner's reasoning has to be included as part of the patent denial, this would put at least some check on spurious patent denials.
Licensing. If the patent holder does not produce a product in a year, anyone may license the patent for a fixed fee/product without approval from the patent holder. This fixed fee might be high at first, but the fixed license fee would go down down the longer there is no product from the patent-holder. If the patent holder eventually produces a product, then all the prior product licenses are automatically grandfathered in.
The original idea of the patent system was to document ideas clearly for eventual release into the public domain. It would benefit everyone to search the patent archives for ideas that would be neat to use or to license. Unfortunately, this is not realized. There is little incentive to read the original patents for the ideas; patents are not intended to be well-written.
This will at least set up the incentives work towards clarity and innovation and better products.
I wasn't even considering software patents in my previous post. I consider one day too long for software patents (business plan patents, too!).
-- Will program for bandwidth
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. Patenting of business processes, software patents and incidental patents (my own personal winner for least deserving) are all the result of this move away from the original intention. Combine this shift with the allegations of overworked and wrongly incented employees and the patent system certainly looks broken
There appear to be two basic uses for the patent system that unfortunately are sometimes at odds with each other.
[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/solution 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...
How about this: the inventor keeps a log of R&D hours spent developing the patent. A value is assigned to these hours at the going rate for engineering services in that field. Then, aggregate licensing fees for all licensees of the patent should be limited to a multiple (say, 20) of the amount expended on R&D. Once the limit is reached, subsequent licenses would be free.
The multiple would be arbitrary, but no more so than the current 20-year limitation.
Furthermore, independent invention by someone else without knowledge of the patent should not only be a defense in an infringement action, but also should be prima facie evidence that the patent was too obvious to be granted.
Bluntly, the only fix to the patent system is to eliminate it. Why? It's fundamentally flawed and has no inherent value despite claims by the legal industry and their well-heeled clients. Patents will always be fundamentally flawed because 1. they are based on monopolies (which are (supposed to be) illegal), and 2. because they monopolize ideas (not just a specific expression of an idea --- as with copyright --- which is far less objectionable). Ideas should not be subject to monopoly power for any duration no matter how short. Furthermore (for comparison), copyrights do not prevent independent discovery or expression. Patents monopolize an idea regardless of independent discovery, regardless of timing (though proponents claim otherwise), regardless or business merit, regardless of intent behind patent. Patents are absurd.
For the record, there are other problems with patents, their origins, the USPTO, the patent system, and the logistics of patents. For instance, there is no way to administer patents properly (catch-22). There are lots of problems with patents. Ultimately they stem from being fundamentally broken.
What are patents, really? Well, putting legal langauge aside, and adopting more of a metaphorical social and business look, my best analogy is:
patents are business landmines triggered by government approved (USPTO) ideas.
Emphasis: landmines. Landmines are a highly undesirable byproduct of war. That's what patents are. Byproducts of greedy, lazy business people. They are a byproduct of business war augmented by special interest arms manufacturers (legal industry). Lawyers invented and institutionalized patents (e.g., the Lehmann USPTO panel on software patents was a joke, all lawyers). The panel was deaf (but not dumb or blind, IMO). Landmines are extremely dangerous. Patents are debilitating to business, increase risk, and reduce innovation and freedom. The best way to avoid them is not to place them in the first place, or anyplace for that matter. I reiterate: patents are absurd.
Except for the legal industry where they're big money (not just to well-heeled clients, but more pointedly to the industry itself which imposed them). IOW, it's essentially a 'taxation without representation' issue, and will probably take a revolt against the legal industry to eradicate patents. Any "reform" is just another joke, IMO.
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To answer the issue more broadly, there are potential "fix"es for the patent system. For example, in the software industry, OSS (open source software) principles are genuinely compelling in all the right ways. IOW, there are several "positives" which were originally intended to grow out of the patent system which can be achieved through more productive paths. For example, 1. benefit the small manufacturer by creating a window of opportunity to manufacture an invention, and 2. benefit the public by documenting discoveries and inventions (in a sane way).
#2 has long gone by the wayside as patents are obfuscated messes written up by lawyers to be overly general and uninformative (to prevent competition but to maintain control over broad range of ideas) without any public interest at all. Software patents aren't executable (to show they work) nor even compilable. They're just lawyer gobbledygook by unprincipled lawyers (apologies to patent attorneys, but if you truly know you're craft then you'll know I'm right). By contrast, OSS principles ride not on unexecutable gobbledygook, but on socially acceptable or at least compilable&executable code. A library of proven ideas (OSS) trumps gobbledygook legalese (patents) anyday.
Add in a variety of public libraries (internet) for software regarding #1 above (helping small manufacturer), and you have a growing public trust of available resources for the small manufacturer(s) to build on --- augmenting their design and innovation, and speeding their time to market. Just as intended (originally that is) by patents. IOW, patents are a
Theres an advert for the new Audi A6 in the UK http://www.brandrepublic.com/bulletins/br/article/ 597521/audi-campaign-compares-a6-evolution-space-r ace/
They say that NASA has only filed 6,5K patents ever whilst Audi filed 9,6K patents just developing the
A6.. When I saw that it actually made me angry, how can there be that many available ways to patent something in a car? And if they _have_ developed something truly ingenious, like a way to make the engine more efficient, why is it beneficial for Audi to keep it to themselves? Shows what the patent system is being used for these days...