Patent Office Head Lays Out Reform Strategy

jeevesbond writes to tell us that Jon Dudas, the Under Secretary of Commerce for Intellectual Property and Director of the US Patent and Trademark Office has laid out a plan for patent reform. "Speaking at the Tech Policy Summit in San Jose, Dudas said that characterizing the patent system as hurting innovation is a 'fundamentally wrong' way to frame the debate. 'I have traveled around the world, and every nation is thinking how it can model [intellectual property governance] after the U.S,' Dudas said. 'It's a proven system, over 200 years old. The Supreme Court, Congress and policy makers are involved [in cases and legal reforms] not because the system is broken. It's not perfect, and we should be having the debate on how to improve.'"

Comments

Just a few things

[fyngyrz]

See any serious problems with this story?

Other than the fact that this guy is out of his bloody mind?

Software patents: totally ridiculous, and putting a huge hurt on an area that should be boiling with creativity. Creatively speaking, this time in our history offers more creative ground and lower barriers to entry than ever before in our history. The primary barrier, aside from your own intellectual resources, is the patent system. It is a barrier to creativity, and furthermore, it is a barrier to progress.

Hardware patents: First guy with the money into the patent system and with the wherewithal to defend the patent wins. Nothing to do with the actual inventor; totally centered about money. Anything wrong with that? Only that it suppresses any inventor without corporate backing, which ought to be a crime in and of itself.

And oh yeah, the other inventor(s) who worked on this? A second late to file, and they are well and truly locked out. Is that fair? Is that even slightly fair?

The US patent system is a well of misery, corporate bootlicking, and "let's crush the little guy" methodologies. Sure, everyone else looks to the US system, because it is a system designed to turn over money, not encourage innovation. The fact that it manages to encourage at least corporations to innovate can be considered a side effect. It certainly isn't the main goal of the system, which is to feed the legal profession a regular set of juicy, meaty bones.

I'll tell you what is "fundamentally wrong"; The US patent system is fundamentally wrong. Why? Because it is a system that guarantees that anyone but the 1st to the gate is hammered; because it is a system that guarantees that anyone without deep pockets cannot actually be protected (read, encouraged) by the system; because it discourages innovation. The number of devices/programs you can actually create without running smack into someone's fool patent is very near zero. So much for encouraging innovation. Now lawyers... they are encouraged. Oh yes. Very much so.

The copyright system isn't doing a lot better, but that's a different issue, somewhat.

Re:Just a few things

[AndersOSU]

I don't think software patents are a good thing, so I'm not going to argue with you there. But hardware should be patentable - it is a real physical devise, and provided it does something novel and non-obvious, the R&D investment should be protected. In the rare case that individuals independently discover something - tough luck if you didn't think of it first - that is the way it works.

You seem to be mistaken as to how the US patent system works. The US operates under a first-inventor principle, which means that it isn't the guy who makes it to the office with the money first that gets the rights. Not that first-inventor isn't without problems, but the race to the patent office isn't one of them.

The US system is most certainly broken, but clearly not in the ways you think it is. I'm looking forward to reading the article, but it appears slashdotted. IMHO the biggest problem with the current state of the patent office is the rubber stamping of obvious and trivial inventions.

Re:Just a few things

[Anonymous Coward]

"It is a barrier to creativity, and furthermore, it is a barrier to progress."

Somehow, I don't think Dudas sees his job as promoting creativity nor progress. I think he sees it as promoting "innovation" (Microsoft style) and "economic health" (production-rights-granted-by-royalty style).

From the article:

"Dudas said that examiners need to be given more deference in determining what is obvious."

It sounds like he's a little miffed that the public finds more things obvious than his examiners do.

Re:Just a few things

[CmdrGravy]

I agree, I think hardware patents seem to work quite well the problem is when you simply try and transfer that model onto something which is inherently different like software.

Re:Just a few things

[Chandon Seldon]

I think hardware patents seem to work quite well

Do you have any reason for this belief?

Patent law is an economic tweak that is intended to "promote innovation". It's possible to see if it's really doing that, and if it isn't then it obviously should go away. Even if it does promote innovation, that still doesn't mean it's a good idea - like any economic choice it has a benifit and a cost, and the cost should be looked at closely and frequently for any country-wide economic policy decision.

Re:Just a few things

[Chandon Seldon]

I was under the impression that patent law was intended to protect intellectual property.

In that case, you are confused.

It doesn't surprise me that there are people confused about this topic, because certain special interest groups have been promoting the inaccurate "intellectual property is like real property" view for a while now - with the specific intention of creating this sort of confusion.

Patent law in the United States has a very clear history, going back to a section of the United States constitution:

In Section 8, Congress is granted the power...
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

Thus, at least in the United States, patents exist for the express purpose of "promoting the progress of Science and the Useful Arts".

Re:Just a few things

[Chandon Seldon]

My argument would probably start with The Tragedy of the Anti-Commons.

The fact is, I don't know if patents on physical devices are a good idea or not, but I don't think that assuming that it is a good idea because it hasn't completely stopped the production of new devices is a good place to start.

Re:Just a few things

[tambo]

Thus, at least in the United States, patents exist for the express purpose of "promoting the progress of Science and the Useful Arts".

You're correct that the patent system is intended to promote science and technology. Half of the reason for the patent grant is to compel inventors to release a broad, detailed technical description of the invention to the public.

But the patent system is also intended to protect the rights of inventors and authors, by granting them property rights to inventions and creative works. Hence the use of the term THEIR in that same constitutional passage. This implies possession and ownership. And this is the other half of the reason for the patent system: to reward inventors and artists - as a way of encouraging further invention and authorship.

Throughout its 200+ year history, the U.S. patent system has granted private ownership rights to abstract ideas. Some people don't like that notion. It's understandable - even Thomas Jefferson was opposed to it at first. But he warmed to the idea, and became its proponent, when he realized the boost that science would get from this incentive system.

Look, people - ownership rights = capitalism, which is still the most efficient economic system that history has yet devised. The patent system certainly needs some reform. But if you're opposed to the general notion of ownership rights, then your arguments are 220 years overdue.

- David Stein

Re:Just a few things

[dgatwood]

Are you seriously suggesting that software isn't boiling with creativity? Look at everything Google is doing, and all of the Linux distros, and all of the stuff on SourceForge. Look at the rapid development of Web 2.0 apps in the last two years. Look at the rate of deployment of software across a huge range of devices, from 64-bit super-pipelined machines to UMPCs to dinky cellphone processors. What part of this is "crippled?" Software development is limited only by the rate of our collective imagination. Patents aren't hampering anything.

So by your logic, because innovation still occurs, innovation is not being stifled. By that same logic, because I and all of my coworkers successfully drove to work this morning, I can conclude that there were no traffic accidents in the Bay Area, and that driving is completely safe. Am I understanding correctly? I'm sure there's a name for this logical fallacy. Ah. Here it is.argumentum ad ignorantiam. So I'll attack that logical fallacy by simply providing the needed proof.

Google is a corporation. They are inherently somewhat shielded from patents by virtue of their own portfolio and their ability to defend themselves. Web 2.0 apps are only happening because nobody has started suing in that area. If another Amazon one-click patent bit users of AJAX, we'd see a major chilling effect outside of the corporate space.

Linux distros? IBM defending themselves from SCO. Microsoft claiming that Linux infringes on their patents. Though they haven't sued, that doesn't mean people aren't getting uncomfortable.

And then, there are the lawsuits over MP3. Bets on whether either of those impact Ogg Vorbis, anyone? They're pretty broad.... And how many extra years did Vorbis take because they were trying to dodge the patent minefield? How much other software that you use every day either costs more because the company had to license some BS patent or defend against it? How much other software that you use every day took longer to release because they had to spend extra effort to avoid some BS patent?

In practice, the "little guys" - sole inventors - are almost never accused with patent infringement. Why bother? It's too expensive, and there's no benefit for the corporation.

While that is true, that doesn't mean that the little guys don't worry about it. And if the little guys are worrying about it, they are avoiding doing things out of fear of getting sued, and that is stifling innovation even if those fears are not justified.

Re:Just a few things

[cpt kangarooski]

But the patent system is also intended to protect the rights of inventors and authors, by granting them property rights to inventions and creative works.

No, you're wrong. It protects them rather than protecting, say, manufacturers and publishers, partially because it wouldn't really be as fair, and partially because we really only need to encourage invention and authorship; manufacture and publication will follow naturally according to market dictates, and don't need encouragement. (Indeed; pirates are merely unauthorized manufacturers and publishers. An invention or work needs no patent or copyright if pirates don't care about it, and if they do care about it, then that indicates that there are willing manufacturers or publishers!)

Hence the use of the term THEIR in that same constitutional passage.

Like I said, 'their' simply allocates it to one party rather than to another. If you want a magic word, you picked the wrong one. You should have been looking at 'securing.'

But it doesn't matter, since there are no preexisting rights in publicly available works or inventions anyway. If you can keep it secret, then that's something. Otherwise, you have to play by the rules the public is willing to put up with. And we only put up with encouragements. Not any of the other crap you have blathered on about.

Yes the key debate is like that over here in Europ

[MemoryDragon]

But only because US companies push a lot of money into the political chains to push the broken patent system of gentech and software upon the rest of the world. It is a shame what is going on here in Europe, the affected polticians dont even try to hide on who's paylist they indirectly are.

Tiny correction...

[muecksteiner]

I have traveled around the world, and every nation is thinking how it can model [intellectual property governance] after the U.S.

should probably read

every nation that we can strong-arm into accepting our rules is modelling its IP governance after the U.S.

If he were honest, that is.

But not being a particularly honest person was probably a job requirement for his position, though.

A.

Yah, right

[pembo13]

'I have traveled around the world, and every nation is thinking how it can model [intellectual property governance] after the U.S,' Dudas said.

Nice spin. I think he means nations are afraid of not modeling their system after the US since the US has proven time and time again that whatever needs to be done to have their way will be done.

Well...

[C_Kode]

'I have traveled around the world, and every nation is thinking how it can model [intellectual property governance] after the U.S,' Dudas said. 'It's a proven system, over 200 years old.

Just because it's a proven system over 200 years old, doesn't mean it still functions today the way it was intended 200 years ago. Hell, I don't bank the way I did five years ago. Times change and a huge part of why it doesn't work is that almost everything has changed along with it.

Life's parameters change. When that happens the algorithm that governs it sometimes must change too.

Bullshit!

[judd]

"every nation is thinking how it can model [intellectual property governance] after the U.S"

Other nations are thinking about it because of heavy pressure from the US to comply with the US model. That pressure comes in turn from lobbying of US govt by US businesses. In no way are other countries spontaneously saying "Hey, what a neat model!" Absent US pressure for trade agreements etc we would keep the status quo, or even free up current regimes.

World = Where exactly ?

[CmdrGravy]

I have traveled around the world, and every nation is thinking how it can model [intellectual property governance] after the U.S Aparently he hasn't visited the UK or the EU lately then who, as read on ./ earlier this week, are moving to specifically prevent software patents.

If I were a betting man, and I bet you I'm not, I'd say he's spoken to people throughout the world who already agree that much tighter intellectual property laws are required who may coincidentally talk a lot to large corporations, many of which may be US based, who would like to protect their profits and don't have any reason to consider the social side of intellectual property legislation.

Also to say that the rest of the world is currently so awestruck with the benefits brought by US intellectual property legislation as it currently is wouldn't appear to be a good reason for suggesting changes to that legislation.

Re:Gamasutra and per-patent fees

[AndersOSU]

Not a chance. The patent game is being played by major corporations firing volleys of offensive and defensive patents at each other. They are certainly not swayed by the fee structure of the patent office, they spend far far more money on their corporate lawyers. The way to break the cycle is to stop granting stupid patents.

Re:Try recent evidence maybe?

[pavon]

In addition, I am very sceptical of the claim that countries are modeling their laws after ours because it is a proven system. I'd wager that it has more to do with being required to have IP laws which are simular to the US and Old Europe in order to participate in various trade groups and treaties.

Correction

[organgtool]

'I have traveled around the world, and [every corporation in] every nation is thinking how it can model [intellectual property governance] after the U.S,' Dudas said. 'It's a proven system, over 200 years old.'

There, I "truthified" what Dudas was trying to say. Regarding the part about the patent system being proven for the past 200 years, software has only been involved in that system for a few decades and it has hardly been "proven." Maybe by "proven" he meant flooding the courts with frivolous lawsuits over patents that should never have been granted in the first place.

200 years? It's closer to twenty.

[Jaywalk]

It's a proven system, over 200 years old.

You might want to check up on your history. Parts of the patent system may be a couple of centuries old, but software patents aren't in that class. Until 1980 the Patent Office didn't allow software patents at all until it was forced to do so by the Supreme Court. Even that wasn't really a "software patent" in the sense that Amazon's one-click patent is; it was just a computer program that was part of a larger invention. Unfortunately this bone-headed decision has blurred the long-established principle that ideas can't be patented. Since computer code is basically just the instantiation of an idea, software patents make ideas patentable. That has led to further deterioration by allowing things like business methods to be patented. So now you even have these clowns claiming that story plot lines can be patented.

The "200 year old" system he's bragging about worked fine. It's the recent introduction of changes to that system which have caused the problems.

Re:Try recent evidence maybe?

[Red Flayer]

I'd wager that it has more to do with being required to have IP laws which are simular to the US and Old Europe in order to participate in various trade groups and treaties.

You hit the nail on the head with that one.

I'd just add that it also has to do with getting corporations with major capital to invest in your country. Who is going to offshore research to a country where the fruits of the research might not pay off as well as if the research were done in the US?

Draconian, big-capital-friendly IP laws encourage companies to spend research funds in your country. Without them, the US would see even more offshoring of research jobs.

Re:Try recent evidence maybe?

[skoaldipper]

> Why don't we use evidence from the world since the Internet was invented, and base our new system upon the modern world?

What about our current Constitution? It's over 200 years old and a proven system. Would you replace it and start from scratch as well?

I think Dudas' claim here is a valid one. Just like our own 200+ year old governing documents, the patent system has undergone changes over time as well as our own government. It adapts to the times.

I think the problem is they have been severely swamped in recent decades - 400,000 last year alone. With 5500 PEs, that's about 70 patents per PE/year (or 1 patent review every business week). Plus, they are backlogged 700,000 more. Hire more officers and they'll meet people's expectations here. They have a 3.5% error rate, and he's striving for zero (though by own admission will never occur). More personnel will help in that end. The USPTO works. If not, what's your alternative? Seems time proven and quite adaptable to me.

Hardware is't really that different

[EmbeddedJanitor]

Why is hardware really different? These days so much hardware is designed in a very similar way to how software is designed.... You get an idea, sit at a work station, pull up part specs etc and draw schematics. You then run suimulations -- pretty much like how you'd test code. Then once you have a design that appears to work, send it off for a trial build. No real stuff "hard stuff" involved so far.

Sure, when you get the hard stuff back, you have something tangible.

Here's the kicker though. If you get a patent, then you're protecting the **idea**, not a physical board. At the stage in the process when the ideas emerged (ie. design), there was no "hard stuff" involved. I don't really think that there is a case to treat sw and hw patents differently.

The biggest problem with software patents is that they are examined badly. Being able to spot really novel software is very difficult, but the same applies to, say, a hardware motor driver circuit.

And, for the record, I design both hardware and software.

Re:Hardware is't really that different

[AndersOSU]

I think that hardware patents should be allowed because if I invent the op-amp I want to get paid for it. Without a hardware patent I'm SOL. There is no copyright protecting hardware (which should be the major IP protector for software), and reverse engineering and reproducing my hardware design would be trivial once I sold the first one.

Re:Hardware is't really that different

[ScrewMaster]

If you get a patent, then you're protecting the **idea**, not a physical board.

Nope. That absolutely is not how the Founders intended the patent system work. You're confusing concept and implementation. Put it this way, there was a damned good reason why the Patent Office used to require a working prototype of any device that for which a patent application had been made.

In the past, you could have an idea, but you could only patent a particular realization of that idea. Others could take the exact same idea, implement it in a sufficiently different or novel way, and receive an equally-valid patent. That worked very well (for a bloody long time) and it encouraged inventors to look beyond the obvious and find other (often better!) ways of realizing the same fundamental ideas.

The key to that, however, is specificity, narrowness. It was never, ever intended that anyone or any company could control every possible realization of a single idea. That, unfortunately, is exactly what the U.S. patence office allows, if it is true that other countries are modelling their IP laws after our present system, well, that's good. They'll be just as screwed up as we are.

He's wrong...

[Eric Damron]

The fact that patents on software hurt innovation is EXACTLY right and should be the way to frame the discussion.

"It's a proven system, over 200 years old."

Unfortunately wide spread computers and their programs are a relatively new phenomenon. The fact that the patent system is 200 years old should be your first clue that it may not work for such a radically new and different set of circumstances!

You sir are a moron... Oops... Strike that last sentence... (Damn and I was doing so well too!)

Re:Misleading Summary

[servognome]

Patents are government issued monopolies... that's more than "broken", that's wrong.

Why? Just because it's a monopoly that equals evil? Government issued monopolies can have a place. They reduce risk to encourage investment. Profit motive spurs investment, and investment accelerates development. The key idea of patents is allow an inventor reasonable time to be profitable so they will invest.

The patent system is hurting innovation now because it hasn't adjusted to take into account faster development times (too many patents overloading the USPTO); faster time to market (patents remain beyond the useful lifecycle); and overly broad interpretation of what can be patented (blame the courts).

Really Disingenuous Speech by the Undersecretary

[billstewart]

Undersecretary Dudas says "and every nation is thinking how it can model [intellectual property governance] after the U.S"? That's happening not because it's a good idea but because the US Commerce Department is lobbying very aggressively to get everybody else to do what the US Intellectual Property industry wants.

He also asserts that "It's a proven system, over 200 years old.". But business model patents, which are probably the most abused and the most common violators of "obviousness", are only a few years old, especially the common "Do {some normal business practice} ON THE INTERNET" business models which cropped up after the Internet became popular in the late 1990s. Even software patents didn't exist before 1979, and for the early years they had to work by pretending to describe hardware.