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

[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

[dgatwood]

What clear standard would you suggest they apply to the system to weed out the good from the bad?

I've said it before, and I'll say it again. It's really simple. You test for obviousness in a way that avoids false "non-obvious" rulings due to obscurity of the problem. To test for good patents, you send out a description of the patent to a dozen people in the field. If any of them comes up with a solution that is basically comparable to your solution within a reasonable period of time, the patent should be rejected with no possibility for appeal.

In the case of software patents, outside certain complex algorithmic areas like digital signal processing, almost everything is inherently obvious if the problem is stated clearly. The only thing non-obvious is usually the problem itself. A patent should never be granted based solely on spotting the problem first. It should be granted based on finding a unique solution to the problem that isn't obvious. More to the point, there should be at least one other way to solve the problem. If none of the examiners come up with another way to solve the problem, then they are not sufficiently skilled in the subject area to have solved the problem, and thus are not qualified to evaluate the patent. If there truly is only one way to solve a problem, then it should not be patentable.

For example, it's a hundred years ago. The problem is that you don't have an eraser around when you have a pencil. Two possible solutions might come to mind: a pencil box with an eraser area and a pencil with an eraser built in. Your typical person skilled in woodworking and making pencils probably won't think of the second one even if you present them with the problem because the alternative solutions are more obvious, though less desirable. There's a third way. Make the outside of the pencil out of rubber. This avoids the eraser-on-the-end patent. So there is provably another solution. As such, the pencil with eraser on the end should be patentable.

As for patents on algorithmic stuff like DSP, that's really all applied mathematics, and should not be patentable. The law says that algorithms cannot be patented, but these corporations skirt around the law by claiming that it is a "process" for implementing the algorithm rather than an algorithm. Since there is usually only one way to implement the algorithm, however, it becomes effectively a patent on the algorithm. As far as I'm concerned, such blatant abuse of this poorly written law should be abolished outright. The only way to do that is to abolish software patents.

The biggest problem with the patent system, though, is duration. If you do not abolish software patents, the patent should have a very short expiration date because the field of software is a rapidly growing field which is quite clearly being stifled by patents. A two or three year duration is the absolute maximum reasonable time for a software patent. Twenty years is laughable. Outside of obscure specialty software like banking systems, twenty years from now, no piece of software that is currently in use will still be in use in any identifiable way. Twenty years ago, we had Windows 2.0, MS-DOS, Mac OS System 2, the Apple IIgs was popular, Atari made computers, the Commodore 128D, and the Amiga 2000. Out of all of those, only two are in some small way the ancient ancestors of something we still use, and even those share no real code in common and show only the barest hint of UI similarity to their successors.

Even in computer hardware, there may be some advantage to shorter patent durations because of the speed at which the industry is changing. However, at the same time, there is little opportunity for new companies or individuals in fields like microprocessor design anyway due to the huge startup costs. In software, where the cost of development is strictly the time consumed, the constant influx of new blood is what keeps the industry innovating, and when you have people saying, "I'd wrote a free app that d

Re:Just a few things

[tambo]

Something I've never quite understood is how it is determined that an invention is "innovative". ... Is it voted upon? Or is it a single guy, following some guidelines?

It's guidelines-based - but those guidelines go back to the first patent act, passed in 1790. (This was a short three years after the adoption of the Constitution, so IP obviously held a very high priority for our first federal government.)

The guidelines are, essentially, three:

1. The invention has to be one of the statutory classes - according to the first patent act, an "art, manufacture, engine, machine, or device." This summary has stood virtually intact for 217 years: today's version (35 USC 101) reads: "process, machine, manufacture, or composition of matter." If it's not one of those, then it's not useful and not patentable.
2. The invention has to be new - it has to be novel and non-obvious. If it's just a rehash of known technology, then it's not "useful" enough to warrant a patent.
3. The invention has to be complete, to the point where the description can teach others how to apply it. The used here is that it must be "described in sufficient detail to permit a person having ordinary skill in the art to which the invention pertains to make and use the invention without undue experimentation." (Long-winded, yes, but it's a good concept.)

So that's a pretty good level of guidance as to what's "useful." The only tweak on all of this is that, according to the Supreme Court (Diamond v. Chakrabarty), these limitations are to be read expansively; i.e., the patent system should err on the side of breadth. In their (unusually eloquent) rhetoric, the Court held that the system is intended to include "anything under the sun that is made by man" in its scope. So you should be able to get a patent on anything that meets, at least basically, these requirements.

That's the theory. The practice is even more rigorous, because the patent process is onerous: expensive, protracted, somewhat uncertain. The pragmatic answer is that "useful" is partially determined by the inventor's subjective assessment of its value. The inventor makes a value judgment: is the invention sufficiently "useful" to warrant the hassle and cost?

- David Stein

Re:Just a few things

[falconwolf]

Really? I was under the impression that patent law was intended to protect intellectual property. In the same way that real estate law is intended to protect greographical property.

Patent law may be this way or it may not be, however patents themself are meant to encourage progress:

USA Constitution:
Section 8 - Powers of Congress
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;

Thomas Jefferson was originally against patents but then his friend James Madison convinced him patents could encourage progress. Once convinced Jefferson sat down with an actuary table and calculated a patent term of 14 year with one 14 year extension possible was the optimum length they should last.

Falcon

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.

Try recent evidence maybe?

[saskboy]

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

Using that logic, we should all be using horses as our primary mode of transportation. Just look how proven and older that locomotion model is!

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

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.

Gamasutra and per-patent fees

[PIPBoy3000]

Gamasutra had a good article on this recently. The thing that caught my eye was that the patent office is supported by fees collected for each patent application. They had a signed framed that read Our Patent Mission: To Help Our Customers Get Patents.

To me, that speaks volumes. Any system with an incentive to do crazy things, tends to do crazy things over time. In this case, the goal is to get as many patents issued as possible, so that more people patent odd things and more money flows into the patent office. Break that incentive and people might start behaving rationally again.

Re:Gamasutra and per-patent fees

[Floritard]

This was mentioned in a computers in modern society course I splept through in college. Something about the government shutting off funding to the patent office and telling it to fund itself. I believe this happened fairly recently, as in almost coincident with the widespread practice of patenting software. What timing...

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.

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.

Favorite Quote FTA

[paladinwannabe2]

With the more open environment, companies and individuals could more easily game system, loading up examiners with more and more information from friendly or unfriendly parties. "We certainly can't allow having more information come in and harrassing the applicant, and we can't hold up the timing of application processing," Dudas said.
Because when you're trying to get a patent approved, the last thing you need is people pointing out the prior art, or people double checking your 'facts'- those things are harrassment and hold up the timing of application processing!

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.

Let me tell you what I know...

[Kadin2048]

I know a guy who worked as an examiner at the patent office. It's basically like working on a factory assembling line. Everything is based off of how many applications you can process. I think that new examiners are expected to do 2 or 3 patents a week, if you want to stay ahead and get promoted. Don't do your quota, you don't get promoted, and maybe eventually you get fired (but it's a government operation so let's not get too ridiculous here).

But basically, 2 or 3 patents need to cross your desk a week, and either be accepted or sent back. That means you can give each one maybe two days. That's two days to do all the research, and look for all the prior art, and make a judgment call. That's nothing on some of these patents, which can be hugely technical, particularly when the people filing them can take all the time they want to obfuscate their intentions and tweak the language to make them as broad as possible.

And here's the best part: if an examiner rejects a patent and sends it back to the applicant, and then the applicant sends it back in with updates, that updated application doesn't count towards the examiner's quota. So there's an obvious advantage towards accepting applications, because that's the absolutely sure way of getting it off your desk and making sure that it's not going to come back to haunt you later.

Anyone see anything wrong here?