Broken Patent System? Google, Apple Disagree

Whiney Mac Fanboy writes "The AlwaysOn Stanford Summit featured the panel discussion 'The Patent Crisis: Crossroads for the Business of Technology.' Speakers included patent lawyers from Google, IBM, and Apple. According to The Register, Google's and Apple's patent jocks had diametrically opposing views. Google's head of patents believes the system is in crisis: 'The Patent Office is overburdened,' she said. 'The volume of patents going in is huge. And the quality of patents coming out — it could be better.' But Apple's chief patent counsel said the US patent system was 'not broken' and 'not in crisis,' calling it 'the best in the world.'"

Comments

Apple Says Patent System is Like a Battery...

[bcolflesh]

...it never needs replacing!

Re:Apple Says Patent System is Like a Battery...

[The13thSin]

And Google just perceives everything to be still in beta!

Re:Apple Says Patent System is Like a Battery...

[Anonymous Coward]

Please note who said what: "But Apple's chief patent counsel said the US patent system was 'not broken' and 'not in crisis,' calling it 'the best in the world'."

Re:Apple Says Patent System is Like a Battery...

[E IS mC(Square)]

Lame excuse to save Apple's ass.

Please note who said what: "But Apple's chief patent counsel said the US patent system was 'not broken' and 'not in crisis,' calling it 'the best in the world'."

Re:Apple Says Patent System is Like a Battery...

[bberens]

I don't think it was intended to be rescuing Apple so much as a dig on lawyers.

Re:Apple Says Patent System is Like a Battery...

[Anonymous Coward]

Replace "Apple" with "Microsoft" and there would not have been one mention of it. It would have all been "MS proven Evil Again" and you know it.

Re:Apple Says Patent System is Like a Battery...

[HermMunster]

Luckily we are smart enough to know we are listening to corporate dogfish that are in it for the money. They are the reason for every incredibly ugly lawyer joke. Bottom line, the system sucks. Soon we are going to have patents covering the sounds of a song or the look of a picture so that no one can create that same sound or produce similar pictures.

Of course it is broken. Patents for real products made of real materials are one thing but patents for ethereal objects made from ideas are not valid and due to the complexity of software engineering it would be nearly impossible for a patent clerk to understand and apply all the rules of law accordingly. So, of course it is broken, because it is impossible.

What Microsoft and other patent holders are relying on is that the system that grants these don't have a clue about how to decipher them adequately in order to determine prior art or obviousness. The only saving grace is that the Supreme Court of the US adjusted the rules about how to determine those things granting a much broader examination across any industry.

The only other saving grace here is that the world is producing software at a much more rapid pace than Microsoft ever could and are ESTABLISHING a HUGE body of PRIOR ART. The end result will be patents that are easily over turned due to prior art and the obvious obiousness.

Re:Apple Says Patent System is Like a Battery...

[HermMunster]

By your command. Microsoft is the biggest threat to the industry because they are a monopoly, period. Ending that monopoly should be a big priority for everyone in the software industry specifically because it means a lack of competition and it also means a company with an arrogance willing to destroy the privacy of the average consumer in order to keep their profits high.

We are talking about a system that can be abused and yes Microsoft is the prime candidate for that abuse because they have a history of abuse, and beyond that, they are criminally convicted monopolist what used illegal predatory practices to kill their competition. If they had not be convicted and were ruled a monopolist that'd be one thing but they are a criminally convicted monopolist that harmed the economies of many a State and of the US as a whole. Luckily the minds in the EU are more astute and have taken measures to quell any attempt at the same there.

Unluckily I don't think the other parts of the world are as keen as the EU. Maybe someday we'll see the important changes there as well.

So, ask us to replace Apple with Microsoft and we have a much more severe picture being painted there. Very severe as a criminal monopolist will always abuse especially when they know that they won't be pursued by representatives of the current administration.

Re:Apple might not be wrong

[FreezerJam]

gaah! Can't edit to save my life...

"broken/in crisis" and 'the best in the world' might actually BOTH be true!

Not only confusion with the patents

[CrackedButter]

But who do I take sides with? Who is the evil one here, the one in the wrong? Are you sure the article isn't missing a paragraph by a Microsoft manager or something, I need to attack somebody needlessly and follow someone mindlessly!

If it isn't done much yet, maybe there is a reason

[dingleberrie]

Our judges and juries attempt to settle items that they can relate to and understand the importance of, such as loosing life, property, or liberty.

Is the judicial system really qualified to test for items such as obviousness in a technical field in order to dismissing a patent. For every witness that says it is obvious, I'm sure the opposing side will say it's not. Perhaps we should have a select group of technical judges just for this purpose.

Re:It's Official: Apple & Google are Evil

[Vokkyt]

RTFA, not the summary, which is a poor one at that.

From TFA:

But he acknowledged that there was a "huge bubble" of patent assertions that needs to be scaled back. "The question with this bubble market, as with any bubble market, is 'Can we solve it without a crisis arising?'" he said.

Lutton believes that the key to fixing the country's patent problems lies with the courts, not the patent office. "Most patents issued are never litigated and never licensed," he said. "We need to focus on fixing the litigation system. That's most relevant."

The issue that Lutton takes with Google's stance is that it's destructive and costly, and basically calls for something else, without any real indication of what that else is. Apple certainly has had fun with patent whores in the past, but they usually come out on top or take care of the issue. Lutton wasn't saying that the patent system is absolutely perfect, that is, without flaws or error. What they did acknowledge is that given the alternative options in other parts of the world, it's best for them. Why is that so bad?

Re:It's Official: Apple & Google are Evil

[witte]

Heh :-)
Calling it 'the best in the world' is quite an insult to other patent systems.

Re:Apple might not be wrong

[Sciros]

It's an iPod shuffle! oooh, burn!

In other news...

[cerelib]

That night Apple submitted a patent for "A handheld device capable of playback of digital audio."(No link needed, this is the full text of the submission) which was immediately, and without review, approved by the head of the USPTO himself.

Not mutually exclusive

[Jtheletter]

The patent system can be BOTH 'best in the world' and 'broken and in crisis'. I don't know about being the best in the world, but I think it's completely obvious to anyone who's salary is not directly tied to the system that it is, in fact, a mess. Somehow I don't think patent attorneys really are the best qualified to make these statements. Yes, they know the industry exceedingly well, but it is their direct best interests for it to be complicated, hard to navigate, and functionally impossible to use without hiring one of their ilk. Having researched the costs and difficulties (and chances) of getting a simple patent I feel confident in saying that applying for a patent without an attorney to assist 99.99% guarantees you will not get the patent. Or it will cost you as much as hiring a patent attorney in the first place, or you'll get the patent but the wording will not be 'just so' and it will give you no protection.

If an inventor can't get a valid patent for a (let's assume) perfectly novel and new invention on their own with reasonable cost and chance of success then the system is BROKEN. That's how it should be defined.

Re:Not mutually exclusive

[noidentity]

And if a corporation can get a valid patent for a perfectly obvious and well-known device on their own with reasonable cost and chance of success then the system is also BROKEN. That's how it should be additionally defined.

Re:Not mutually exclusive

[nine-times]

If an inventor can't get a valid patent for a (let's assume) perfectly novel and new invention on their own with reasonable cost and chance of success then the system is BROKEN. That's how it should be defined.

I do like this way of thinking of things. It could be productive to think of situations which would cause us to say the thing is broken. Some ideas come to mind:

• If an individual inventor can't reasonably get a patent in spite of having a truly novel design
• If that same individual inventor can't reasonably protect that patent once granted
• If people can get patents to things that are obvious and unoriginal designs
• If people can get patents to ideas rather than designs
• If people can get patents for designs that are inevitable (meaning it is *THE* solution to a known problem which will be solved in the course of normal progress)
• If whole industries, scientific progress, or the productivity and well-being of a society can be held up by a patent

These are just suggestions, and you might disagree. However, even if you do agree, I still don't know what should be done about it. How can we improve our current system or build a new one which won't have these problems?

Re:Not mutually exclusive

[jc42]

It could be productive to think of situations which would cause us to say the thing is broken. Some ideas come to mind: ...
      . If whole industries, scientific progress, or the productivity and well-being of a society can be held up by a patent


Various historians have written about how this has been true since the early days of the patent system. Using our current terminology, the patent system was broken by design. Its supporters always claim that patents encourage improved technology, but history says that patents primarily impede advances. In many cases, this doesn't even benefit the patent holders. Thus, in Levine's first example, James Watt spent most of his life in court, suing people. He made very little money from his big invention, until after his patents ran out, and only then did he settle down to building and selling the steam engines that eventually made him rather wealthy. His patents effectively set back the development of steam transport by several decades.

How can we improve our current system or build a new one which won't have these problems?

Considering that we've had this sort of problem with patents from the start, it doesn't seem likely that we can fix the problems. If we could, you'd think that some country would have stumbled onto the solution by now.

The only approach that seems to have helped at all is the compulsory licensing system that many countries use with copyright. This involves taking control of the "invention" away from the patent/copyright owner, and decreeing that anyone can use it for a standard, fixed license fee. Needless to say, the owners of such "Intellectual Property Rights" don't agree with this, though history shows that it seems to be about the only thing that takes the profits away from the lawyers and gives them to someone else. Of course, the "someone else" is usually a corporation, not the actual inventor, but that's another topic that we could flame to death in another thread. ;-)

Settle it in court?

[Thrip]

[Apple's] Lutton believes that the key to fixing the country's patent problems lies with the court Easily said, if you're a lawyer retained by a company with a huge wallet.

Re:Settle it in court?

[kebes]

Your message board analogy is correct, but only so far as the only problem we are trying to solve is the minority of trolls.

The problem is much bigger. There are patent trolls, but there are also well-meaning companies who get patents for things that they shouldn't (too obvious, etc.), and there is the ensuing escalation of patenting (if company X gets an obvious patent, then we need to file obvious patents also, to keep up and be defensive). In the view of many, the problem is not a minority of trolls or bogus patents, it's that the majority of patents are bogus, which buries the legitimate patents and creates a massive legal and economic burden all over society.

In your analogy, when a message board is over-run with trolls and worthless posts, such that it is difficult to even find the good content among all the fluff (basically every post gets accepted and promoted to the same visibility status), then yes a rethink of the entire message board structure is needed. Hence why slashdot has moderation. Only a small fraction of posts are considered "worthy."

Similarly, many of us believe the patent system is now so over-run with bad patents that it has be be thrown out, or at least wildly altered, so that the productive patents get the priority they deserve, whereas the massive number of bogus patents get ignored.

(So, the question comes down to a matter of degree... it all depends on what percent of patents you think are illegitimate.)

Re:Settle it in court?

[Thrip]

Would you seriously spend hours upon hours rethinking and redoing the entire message board style just because of some annoying trolls, or would you just squash the trolls under your mighty bannination powers? The latter is much easier, and makes a lot more sense. Are you joking, or is this a metatroll? You're posting this on a board that has an incredibly elaborate system to minimize the impact of trolling, and still barely copes with it. Banning is pretty well proven not to deal with trolls, even if you disallow anonymous posting.

Anyway, your comparison of forum trolls to patent trolls is specious. Patent trolls have a large economic incentive, and their actions are significantly more damaging.

Re:Settle it in court?

[Vokkyt]

I can certainly understand that many frivolous patents are given. But I must reiterate that a dramatic rewrite isn't necessary (obviously IMO), simply because a major rewrite, or even a mass retraction of patents isn't the best answer either. Small steps are the answer; tweaks and such, IMO.

There are a lot of good patents out there, even in relation to the bad. What can simply be edited is the way in which patents must be worded so as to not allow ambiguity. From there, a review of the patents that are in question can be held; it doesn't have to be a court proceeding, it can just be controlled by the patent office. From there, the patents which really are questionable can be reviewed, and continually reviewed. This method allows for a careful examination of the patents to ensure that the patent is not too broad or frivolous, and also gives both large companies and small companies a fair chance to ensure that their voice is heard on the matter.

You mentioned Slashdot's moderation system; I think that is exactly what is needed. Not mass banning of patents or a complete rewrite of it, but moderation, to ensure that the patents are relevant, reasonable, and concise.

Re:Settle it in court?

[MightyMartian]

I would even agree with you, providing patent trolls, once caught in the act of extorting licensing fees based upon faulty patents, be permanently banned from ever submitting patents again. They should also be due to pay punitive damages to those who they extorted money from. The system needs to have a severe and permanent punishment mechanism.

Hardly surprising....

[demallien2]

Considering that Google does software, for which the idea of patents is just ludicrous, whereas Apple does hardware, where patents are clearly much more applicable. To be honest, it would have been surprising if the two didn't disagree...

Re:Hardly surprising....

[mpapet]

Apple does hardware, where patents are clearly much more applicable.

Except when a mom-and-pop builds a clever and Patented asic that Apple wants. Most likely Apple gets one of it's off-shore suppliers to copy the ASIC. Goodbye mom-and-pop.

Except when Apple doesn't like some competitors hardware and discovers they have enough money to go a few rounds in court. Then an absurd patent/trademark violation case is started for no reason other than to kill a competitor.

Both situations happen regularly. The patent system has been twisted into a tool to supress competition.

Re:Hardly surprising....

[dgatwood]

Simple. In hardware, compatibility with other hardware/software is not a requirement. If Intel patents something that AMD needs, AMD can implement something equivalent that doesn't work the same way, and software developers will write compiler extensions that take care of the details (for the most part).

In software, the fundamental functionality of software requires that data files be able to be read by other applications. Often, these patents cover the only possible set of steps to decode a file format. Thus, these patents take control over content created by an end user away from the content creator. This is fundamentally wrong. Also, since you can't force a company to provide open APIs for writing importers, the customer gets screwed if it is not possible to also write the competitor's file format.

Software changes much more rapidly than hardware because of the lack of physical form. Most computers still use the same basic instruction set that was created over thirty years ago. Most computers use an operating system written in the last ten years. Most computers have at least one application that was been updated in the last 3-5 weeks, while their CPUs were only upgraded within the last 3-5 years. Thus, the duration of absolute protection currently provided by patents is entirely unreasonable for software. Some might argue that it's unreasonable for computer hardware as well, but it is definitely unreasonable for software. This can be fixed, but until it is, it still represents a good reason not to allow software patents.

Algorithms are either mathematical in nature, in which case they should not be patentable because math is considered to be factual and unpatentable, or they are so trivial that a description of the result to a programmer will get you a similar (if not identical) piece of code. The complexity of software is not in creating anything new, but rather in the constructing of a whole from lots of standard parts in useful ways. The more complex the piece of software, the less likely that the whole piece will match someone else's, but the more likely that some smaller piece will be an almost exact match. As such, it is far closer to an art form than a science, and thus should be protected by copyright, not patents.

That brings us to the last point: prior to the recent allowance of software patents, nothing was eligible for both patent and copyright protection. It was always one or the other. This was very much intentional in the creation of these laws. They were supposed to be mutually exclusive. Right now, we have a situation where a small percentage of software authors want to have the extended duration provided by copyright and the absolute protection from fair use that patents provide. It's a clear power grab that should not be allowed. Allowing both types of protection on the same piece of technology gets around all of the protections built into each individual protection against abuse.

I'm sure folks can come up with other reasons, but those are the ones that are most obnoxious in my view, and are pretty fundamental to the nature of patents. Of course, if a software manufacturer is willing to forgo copyright protection in exchange for patent protection....

Urrgh!!!

[mpapet]

Apple certainly has had fun with patent whores in the past, but they usually come out on top or take care of the issue

And how much does "come out on top" cost? To Apple, not much. But the companies you never hear or care about it is the touch of death. **Every** one of the companies I've worked for have been dragged into court on patent and lame trademark cases, it has directly imperiled the operation of the company for no good reason other than to drive the small guy out of business.

How much does "taking care of the issue" cost Apple? Again, not something they are willing to share with anyone because then the price Apple or any other company for extortion becomes the new lowest dollar amount to settle for.

"Best for them" is certainly not best for the consumer or the hundreds of thousands of small businesses delivering innovative products.

Re:Urrgh!!!

[Vokkyt]

First question; what the product that your company(s) produced/worked on truly unique or different, or using genuinely unique technology that was free of patent infringement?

I know the door swings both ways; patent trolls sit right next to patent warlords, blah blah blah. I'm not saying that the patent rules cannot change, and I don't think that is what the Apple lawyers are saying either. However, consider what is being said by Google; they want a complete re-write. Okay, but what will the result be? Hollering that it needs to be fixed without any real solution doesn't really do any good. Also, given that this is a rather embedded system in place, a complete rewrite and replacement would take years, what with the testing and all.

As for the small businesses you worked for, I'm sorry they got squished under the strong arm of bigger companies, but my question still stands; was the patent infringement legitimate? What, do you want to wipe the patent slate clean and have everyone start from scratch? Well that would certainly suck. Should companies with X amount of patents have to give up all their patents and start anew with a one patent per year ruling? Doesn't sound fair to them, now does it.

What if, instead of being dramatic and rewriting the entire system, the parts of the system where it falls apart, the litigation side, is scrutinized and reviewed, with necessary changes taking place. Huh, sounds familiar...oh wait; it was said already.

Seriously, if simply revising what seems to be an alright system for many companies (not just big companies, small ones as well profit from the patent system) is not enough, then what is the answer? How should it work?

Re:Urrgh!!!

[greenbird]

As for the small businesses you worked for, I'm sorry they got squished under the strong arm of bigger companies, but my question still stands; was the patent infringement legitimate?

Yeah, they stole truly innovative programming techniques like linked list. So they could either license this innovative technology for $x of they could fight the patent which would cost anywhere from $x to $5x. Oh and the cost for fighting would tend towards the higher since the case was filed in the patent friendliest court in the US, good old Marshall, Texas Just the fact of that patent being granted shows how broken the current patent system is.

What, do you want to wipe the patent slate clean and have everyone start from scratch? Well that would certainly suck. Should companies with X amount of patents have to give up all their patents and start anew with a one patent per year ruling? Doesn't sound fair to them, now does it.

No. They should have to give up the idiotic patents like the one above. Unfortunately the current system has fostered a climate where 1000's of such patents (I dare say the vast majority) are not only granted but prove profitable for the owners of the patents. The idea of patents was put in the US Constitutions, despite the reservations of most of the framers of the US Constitution, for the exclusive purpose of fostering competition. You need to show me how the current system is in any way fostering innovation because the examples of the current patent system stifling innovation are rife. Until you do that, to bad if some poor little company making money and/or destroying truly innovative companies loses their business model of blackmailing with idiotic patents. The reservations of the founding fathers have been proven more than valid. I'm sure they would be scribbling that little part out if they saw the system as it is today.

Seriously, if simply revising what seems to be an alright system for many companies (not just big companies, small ones as well profit from the patent system) is not enough, then what is the answer? How should it work?

You are completely clueless as to the purpose of the patent system. It's not there so some companies can profit from it. No shit some companies profit by being granted a monopoly. But they generally profit by stopping innovation. The whole point of the patent system is supposed to be to stimulate innovation. Until you grasp this fundamental point you'll never see how broken the current system is.

In fast moving tech fields granting monopolies do nothing but stifle innovation because the company holding the monopoly no longer has to innovate to compete.

Patently obvious

[Dan East]

"Speakers included patent lawyers from Google, IBM, and Apple."

Um, doesn't it go without saying that a bunch of patent lawyers, who are undoubtedly extremely well paid for working and exploiting the existing convoluted patent system, wouldn't want anything to change? If software patents go away, a certain percentage of patent lawyers go away. If the patent system was better designed, easier to understand, simpler for individuals to work with, then another percentage of patent lawyers would go away.

If you've built up an entire career understanding and working within the confines of a complex system, you wouldn't exactly want the system to be made to work without requiring your professional qualifications, would you?

Dan East

Re:Patently obvious

[nomadic]

Um, doesn't it go without saying that a bunch of patent lawyers, who are undoubtedly extremely well paid for working and exploiting the existing convoluted patent system, wouldn't want anything to change? If software patents go away, a certain percentage of patent lawyers go away. If the patent system was better designed, easier to understand, simpler for individuals to work with, then another percentage of patent lawyers would go away.

So most oncologists don't want a cure for cancer to be found? I've talked with a lawyer who works on patents on several occasions about this, approaching it from a slashdot-centric the-system-is-broken kind of viewpoint, but after hearing her talk about it I've come to the realization that the system isn't quite as bad as we make it out to be here. It is not easy to get a patent; patent applications are frequently denied, or revisions are demanded, and just because we've seen some dumb patents get granted doesn't mean that the whole system is somehow irredeemably broken.

It's like the people who argue the legal system is broken because they cherry-pick instances where frivolous lawsuits succeeded (usually completely fabricated instances).

Well, my respect for Apple just went down a notch.

[Caspian]

And I say that as an Apple user. Seriously, I never in a kerjillion years would have expected this kind of patriotic drivel from an Apple employee. Our broken-ass patent system is "the best in the world"? Nothing's wrong with it? Hoo boy. Seriously, WTF?

Havent read TFA

[GarfBond]

but this standpoint may have something to do with apple's focus on hardware. Hardware patents have seemed to work better for them in general - see multitouch, magsafe, iPod wheel, etc.

Knock knock, Neo.

[mattgreen]

That'd be the sound of your cognitive dissonance knocking. Google/Apple = good, patents = bad. But, Google/Apple like patents!

I wish they wouldn't run stories like this...now what are we supposed to think?

Re:Knock knock, Neo.

[aristotle-dude]

That'd be the sound of your cognitive dissonance knocking. Google/Apple = good, patents = bad. But, Google/Apple like patents!

I wish they wouldn't run stories like this...now what are we supposed to think? Do you make a habit of using psychological terms in your everyday speech? I have yet to encounter anyone who would use the term "cognitive dissonance" in an ordinary conversation. Why do people on slashdot insist on writing like a walking thesaurus? Rather than making you appear more intelligent, use of uncommon words tends to isolate you from the the group and can make what you are trying to express more difficult to grasp for the average reader.

I would suggest using common language to express how you feel rather than throwing in psychological terms haphazardly.

Re:Knock knock, Neo.

[mattgreen]

Ah, and I thought this was "news for nerds." How foolish of me.

Google is right...

[josepha48]

.. and apple is wrong, take it from an ex-patent examiner.

The way that patent examiners work is by number of actions on a case. Each patent application is a case and there are only at most 2 actions on a case: first action, usually a rejection for something; final action, either the patent is allowed or denied. Allowing a patent on the first round only gives you one action. The patent examiners are expected to complete a certain number of actions each week. As the patent examiner stays there longer they need to complete more actions. A new patent examiner, GS-5 or GS-7 would have to do about 4 patents every 2 weeks, where a GS-11 would have to do about 7 every two weeks. This never ever ever takes into account the complexity of the patent either. A 10 page patent application gets the same attention as a 150 page application. It does not take into consideration that the job is boring as hell unless you like dealing with lawyers.

Many patent examiners are not from the technical fields that they are working in and some are fresh out of college. Patent examiners are government employees and thus have the same lazy attitude that most government employees do.

Anyone who has been on /. for the past 5 years and seen some of the stupid issues that have come up because of patents would know that the USPTO (United States Patent and Trademark Office) is completely jacked up and not working.

Take it from me, I worked there, and to reject a patent I would have come up with any f***ed up logic just to get it out the door on time, and usually allow them the second time around, unless I really did come up with some good BS

Re:Google is right...

[sheldon]

I knew a guy who went on to be a patent examiner.

As he explained it, they were instructed to be very lenient on accepting patents, because it was simply taken for granted that any complaints or problems would be handled in the courts.

That's the way businesses preferred it to be done, and perhaps that is Apple's position here.

Re:Google is right...

[PatrickMMoore]

You're absolutely right. When I was fresh outta college and working as an examiner, I would use whatever f***ed up logic that made my boss happy with my production numbers. I'm not proud of that fact, but it did make my life considerably better.

I am agreeing with you that the system is pretty jacked up and no longer encourages innovation (which is what it was meant for in the first place. Thomas Jefferson would probably be working for Google if he were alive today.

Re:"the best in the world"

[IBBoard]

They never did say how it was best ;)

Re:Apple might not be wrong

[dfghjk]

Yes and, furthermore, Apple's and Google's views are not necessarily opposed.

The other quote from Apple, "Most patents issued are never litigated and never licensed," ... "We need to focus on fixing the litigation system. That's most relevant.", is most certainly disingenuous. Patents are very rarely litigated because the stakes are so high. Apple plays the patent game as aggressively as anybody and this is an attempt for them to direct attention away from the process of bogus patent hoarding which they so eagerly participate. Unlike the majority of large corporations, Apple uses its patent portfolio offensively.

Saying the patent system is the best in the world doesn't mean it isn't hopelessly corrupt.

Patents and FOSS

[Archangel Michael]

Google's head of patents believes the system is in crisis: 'The Patent Office is overburdened,' she said. 'The volume of patents going in is huge. And the quality of patents coming out -- it could be better.' But Apple's chief patent counsel said the US patent system was 'not broken' and 'not in crisis,' calling it 'the best in the world.'

Here's a novel idea. Is it possible that these two views aren't as mutually exclusive as some think?

My thoughts as to why I postulate this idea (ignoring the obvious "broken" / "not broken" statements).

1) From a certain point of view, the patent system is broken: the infamous business model "on the web", swinging on a swing, etc.
2) From another point of view, the patent system is NOT broken: true inventions, novel approaches to solving a problem etc.

Is the whole patent system "broken" because of 1? I agree that certain aspects of the Patent process ARE broken, but that doesn't mean the whole of it is.

FOSS is just as "broken" as Patent System is. Probably more so with people starting to implement GPL3 (which isn't going to have the effect that the authors/designers wanted). Before you mod me down, I support and promote FOSS where I can, when I can. I don't use MS Office, I use Open Office. I use LAMP for all my web design work (I use Joomla, mostly). Firefox, Thunderbird etc for web applications. I think FOSS has a lot to offer, but it is far from perfect.

The different agendas and people trying to force others to their view is insane. While I like the idea behind GPL3 (protect the source), I don't like the implementation. I think it is going to hurt packaging and bundling of components together to accomplish a job because of some clause in the GPL3 is vague enough and can be interpreted in such a way that bundling of a LAMP solution would be viewed as violation of GPL3. What is the difference between linking libraries, and linking applications???? Define a library vs an application. Isn't a library a small application????? It is a bit like defining PORN, isn't it? I mean, we all know "PORN" when we see it, but actually defining it can be .... difficult at best.

Re:Well, my respect for Apple just went down a not

[Heftklammerdosierer!]

From TFA:

Speaking alongside Lee, Apple's chief patent counsel, Chip Lutton, wouldn't go quite so far as his Google counterpart. He said the US patent system was "not broken" and that it was "not in crisis," calling it "the best in the world". But he acknowledged that there was a "huge bubble" of patent assertions that needs to be scaled back. "The question with this bubble market, as with any bubble market, is 'Can we solve it without a crisis arising?'" he said.

What does this do for...

[TheJerg]

The old saying "The enemy of my enemy is my friend"?

You have "The enemy of my enemy, the enemy of my enemy and the enemy of my enemy" Does that make them all my friends or all my enemies?

It may be the best in the world

[intx13]

The US patent system may be the best in the world - I'm no expert on foreign patent law, but I do know that not many people other than software folks are complaining about the current state of the US patent system. Software is still relatively young (compared to the age of the concept of patents) and it's not surprising that it is causing a lot of frustration... square pegs and round holes and so on; the patent system hasn't evolved to handle software yet.

I'll go one step farther - I don't think the patent system is necessarily broken. The current patent system is unable to handle the issue of software patents - but this doesn't mean the system itself is broken. The system wasn't designed for software! "This hammer won't screw in this screw, the hammer is broken and must be purged from the hardware store and replaced with a new device!"

You must use the right tool for the job. I think it's fair to say that the patent system is not the right tool for protecting the interests of software developers, but that doesn't mean that the patent system is broken.

People dies because of patents.

[eiapoce]

The US patent system is not the best in the world because there can't be one. As soon you accept the idea of protectiong ideas you promote the economically implicit concept of scarcity of resource and various forms of implementation that are economically inefficient (monopolies and such).

On slashdot people discusses about software patents knowing that they apply the most to high technology and computer science. Unfortunately they apply also to other things including medicine (drugs).

Do not forget what happened a short while ago in Brazil when the president was criticised for an allerged violation of a patent. http://www.msnbc.msn.com/id/18490388/

Useless

[Duncan3]

A patent will not stop China (who makes everything) from making copies of your product, because it's not the USA.
A Patent will not stop Microsoft from using your product, because they can pay more to lawyers then you can - which is how the "legal system" works.

How are patents helping the inventors exactly?

Re:Apple is evil.

[empiricistrob]

A company cares about their bottom line, and suddenly they're evil? That's rediculous. Under US corporate law, the sole responsibility of the board of directors is to make a profit. It's the system that's evil, not Apple. Whether a corporation's profit is aligned with your standards of good or evil is purely coincidental. Sure, Google might look like the good guy when it comes to the spectrum auction -- but that's only because it will help their bottom line down the road. Similiary, Apple looks evil to you, and that's solely because profit for them involves the use of patents, which you consider to be evil.

Re:If it isn't done much yet, maybe there is a rea

[Jerry Coffin]

Is the judicial system really qualified to test for items such as obviousness in a technical field in order to dismissing a patent. For every witness that says it is obvious, I'm sure the opposing side will say it's not. Perhaps we should have a select group of technical judges just for this purpose.

Yes, both sides are usually going to find experts who will testify to what they want said -- and to at least some extent, both will usually be correct. Relatively few patents are granted for things quite as obvious as most people think -- but most aren't exactly blazing new trails into completely unexplored wilderness (so to speak) either. The most obvious patents are rarely used as the basis for a lawsuit in any case. A company that's going to try to make money off their patents wants to look invincible -- to the point that if they send you a letter saying they think you're infringing on their patents, the only reasonable reaction is to settle as quickly as possible. The last thing they want is to waste lots of time and money in court with a weak patent, only to lose the case because it's obvious, and (worse) end up looking weaker so anybody else they go after for the next ten years (or so) will fight back because they think there's a good chance of winning.

As far as obviousness goes, there's also been a fairly noticeable change in the US recently. The Supreme Court of the US (in the case of KSR v. Teleflex) recently ruled that the criteria that have been used by the Court of Appeals for the Federal Circuit were basically flawed. The rules they had previously followed said that to show a patent was obvious, you basically needed to show where previous documents showed all the elements in the patent, and you needed to show some way in which a document suggested combining those elements into a single invention (e.g. if two elements were shown in separate documents, that a third document listed both of the first two in its bibliography).

In the KSR v. Teleflex decision, the Supreme Court ruled that it was not enough to show that the particular combination of elements you used hadn't been specifically suggested previously. Rather, you have to show that you got (for example) some result beyond what would be expected by combining those elements in that particular fashion. In case anybody cares, this ruling also discusses the criteria that had been used previously.

As far as there being a panel of judges specifically for looking at patents, that already exists: I already mentioned the Court of Appeals for the Federal Circuit. This court works almost exclusively with patent cases. It was created for more or less the reasons you suggest.

Along with ruling on things like whether a particular patent is obvious, the CAFC attempts to create criteria that give the lower courts guidance in how to make that determination as well. In KSR v. Teleflex, the Supreme Court not only changed the final ruling, but (more importantly) said that the criteria that were previously in use needed to be changed. As such, this will have a considerable effect on the rulings of lower courts in patent cases, probably for years to come.

Re:Oh crap...

[jc42]

What patent of Apple's is Google infringing on?

We can't know that until the courts decide.

This simple fact is the main evidence of how broken the system is. Current patents, at least in the US, are unreadable by the engineers that they are ostensibly written for. Even if you read one and think you understand it, fact is that if you aren't an experienced patent lawyer, you do not understand it. In Legalese, there are a lot of English-like words whose meanings are rather different than in normal English, and there are many more words whose meanings are very different from Engineering English. In the case of computer-related patents, many of the patents deal with new concepts that the legal system hasn't yet adjudicate, so the legal meaning of much of the text hasn't yet been decided in court. Google can't know what patents they are infringing, any more than Apple can.

Considering all the new stuff they're involved in, Google can be reasonably sure that they're violating some of Apple's (and Microsoft's and IBM's and ...) patents. They just can't know which ones, until the courts tell them.

Re:It's Official: Apple & Google are Evil

[Gregb05]

As well they should be; If they'd taken that position 15 years ago with the mouse and their UI, Microsoft wouldn't have broken into the consumer market, and we'd have a a much more Apple-centric universe, with turtlenecks and goatees.

Probably not the best for everyone, but much better for Apple. Typically doing what's good for your company is regarded as a good business move.

its really obvious...

[3seas]

allowing software to be patented is proof that it is broken.

www.google.com/patents

[Anonymous Coward]

So... I think Google has a better understanding of tha patent system... as they are trying to digitally catalog it. Apple probably sees it from a purely business point of view. My friend in the patent office says they have a decade long backlog. He did Computer Engineering in college so I assume he is looking at software patents.

The PTO is not the biggest problem here.

[muerdeme]

"Most patents issued are never litigated and never licensed," he said. "We need to focus on fixing the litigation system. That's most relevant."
I couldn't agree with Apple's counsel more.

Everyone seems content to blame the PTO for the problems in the patent system. The reason there are patent trolls applying for superfluous patents is not because they know they can sneak the applications through the PTO's inefficient, government run system. The patent litigation laws in the US are the source of the real problem. The massive potential returns on litigation make it economical for the trolls to exist, and, in turn, force the big companies to use their patents "like shields" against each other. One golden patent application in a 1000 is all it takes for a troll to pay for the fees associated with all of them.

Get rid of the trolls and unnecessary patents by making them uneconomical, not by forcing the PTO to hire PhD's. With a lower upside to litigation, every application that is filed must necessarily be of a higher quality in order to make it worthwhile economically.

Misleading Title

[nicolastheadept]

That title is extremely misleading. The way its written it looks like its saying that Google and Apple disagree with the fact that the patent system is broken.

Apple hardware vs Google software

[codemachine]

I think this partially has to do with the businesses they are in.

Apple is mostly a hardware company. They want to be able to patent their innovations involving the iPod and iPhone. Though I'm sure they have some software patents too, most of their patents are tied to hardware and the software interface to hardware. For a company that tends to lead the pack on hardware innovations, the system works very well for them.

Google's big business is web based software. Software patents have been handled fairly poorly by the patent office. And Google is arriving on the scene late. Apple and MS already have a huge patent portfolio. Google is probably building one as well, but since their business is software based, they are quite vulnerable to patent threats. Especially when a company that has stated they want to crush Google has one of the largest collections of software patents, and has already threatened the open source software that Google's business runs on.

Re:Well, my respect for Apple just went down a not

[RAMMS EIN]

Welcome to the Real World, where Apple is the world's largest seller of DRMed music, locks consumers into the iPod-iTunes combo, trumps Microsoft in terms of bundling, builds proprietary software on top of open source software, without always being eager to contribute back, sues people for spreading information, refuses to admit problems with their hardware, and on and on.

Ok, so perhaps I painted a somewhat exaggerated picture of Apple. But the point stands: they're not angels.

KSR v. Teleflex

[Jimb0v]

Patent system has already been fixed by the Supreme Court. They made it much easier for an examienr to merely state that they believe something is obvious.

Only in the EU...

[tjstork]

Despite the imperialistic wishes of the EU, the USA does not have to abide by EU laws. People are competing against Microsoft, they just lose. Let's spell this out, after a few releases, Netscape was not as good a brower as IE 4.0, Borland C++ was not as good as Visual C++, and dBase III was certainly no match for FoxPro. On the other hand, where people make the right decisions, they gain on MS. Zune is no iPod, msnbc is no CNN or Fox, IE is no Firefox and Windows is no Linux.

Re:Only in the EU...

[HiThere]

More particularly, Netscape couldn't sell it's browser for $35 after a years trial when MS was giving away IE for free, and pre-installing it in new systems.

If you like VisualC++, all I can say is "That's a matter of taste, and my taste differs from yours". Actually, I barely ever used VisualC++, but I presume that it's like their VisualJ++ and like their VisualBasic, both of which I hated. IBM had a good IDE for Java (VisualAge), though. Pity they dropped it for Eclipse, as Eclipse still hasn't caught up to it. I've still got a copy, but it stopped running on Linux back during the days of Linux2.4.

FoxPro was, indeed, a good product before MS bought it. Superior I would call it. Pity MS decided to kill it. (Is even the remnant of it still viable?) I considered it far superior to MSAccess.

MS has frequently used it's monopoly position to kill superior products, even when it had to buy them to do so. In the case of FoxDB MS had trouble killing it even AFTER they bought the product. Users almost revolted. So they continued to sell it and stopped development and slowed maintenance to a crawl. I expect that by now they've finally managed to kill it. I saw the handwriting on the wall and looked elsewhere. But I had by then lost all delusions that MS had the good of it's customers as a significant consideration.

The US should not have to abide by the EU laws. Similarly the EU should not be coerced into following the US laws. When we see evidence that this is being done, we should be aware of the vile abuse of power that is occurring.

The US patent system may not be the worst.

[HiThere]

I'm no lawyer, and I don't know the laws of foreign countries. The US patent system may well not be the worst patent system in the world. It's bad enough.

Actually, were I to rate how bad it was, my rating would be more on an absolute scale than on a relative scale. I feel that the US patent system is so bad that we'd be better off without any patent system at all. I'm sure this isn't the optimal answer, but it's a true one. An optimal patent system would require licensing patents for a fixed amount/copy, or an agreed upon lesser rate. It would require patents to be operationally useful, rather than the basis for legal arguments. (That one would be tricky to implement.) It would include specific tests that could allow one to reliably determine whether a patent was infringed. (Another toughie.) And it would impose an absolute limit on the total compensation that could be derived from a patent, say 50 or 500 times what it cost to develop, after which the patent would become free for common use.

Optimality is notoriously difficult to prove, and even "almost optimal" can be difficult to implement. The current system, however, is closer to "almost pessimal". (Well, perhaps I exaggerate. I'm not sure. The fact that I can't be sure is a comment on the current patent system.)

Slow day around here

[aztektum]

Thomas Jefferson would probably be working for Google if he were alive today. Or screaming "Help help get me out of this fucking hole in the ground!" Yeah I'm bored today.