Slashdot Mirror
Patent Reform Bill Unable To Clean Up Patent Mess
First to submit writes "Ars Technica analyzes the Patent Reform Act that has passed the House and is being debated in the Senate. Unfortunately for those longing for real, meaningful patent reform, the bill comes up short in some significant ways. 'Despite the heated rhetoric on both sides, it is unclear if the legislation will do much to fix the most serious flaws in the patent system. A series of appeals court rulings in the 1990s greatly expanded patentable subject matter, making patents on software, business methods, and other abstract concepts unambiguously legal for the first time.'"
... it is kind of hard to legislate common sense.
"There are four boxes to be used in defense of liberty: soap, ballot, jury, and ammo. Please use in that order." -Ed H
In other words, Ars Technica finds this reform patently absurd?
Patent Reform sat on a wall
Patent Reform had a great fall
All the King's horses
And all the King's men
Couldn't put Patent Reform together again.
So let's start over.
Need I say more?
Resistance is futile. Your technological distinctiveness will be added to our own. You will become one with the morgue
I'm sure it's a debate between those in bed with the defensive patent holders and those spooning the offensive patent holders. They dare not make the bill too radical and wake any sleeping giants.
Seems to be that patent trolls have to stick to jurisdictions they have a significant presence in, and can't go to courts that have been sympathetic to plaintiffs in patent cases. This isn't much of a reform to me. What about stopping these common sense patents and business model patents. Until that happens this is just a motion of appeasement, not a real solution to the problems.
Absolute power corrupts absolutely. indymedia
I confess to being totally ignorant of how patents affect most industries, but it seems to me that the real problem with patents in IT is the fact that they grant such long protection for products with such short shelf lives. Several years ago, I tried to explain that to my congresscritter at the time, but he couldn't grok how his argument that we need to protect IT because it is so rapid at innovation actually is an argument AGAINST many aspects of strong IP law as they apply to IT-related products. For example, granting 17 years or more of protection to a video codec means that you own it for its natural life, plus 5-10 years in many cases.
IMO, patents should cover the schematics of a product, not the ideas that went into the product. A car maker should be able to patent the final design of their latest product, but there should be nothing stopping someone from looking at it, and extending it in some meaningful direction without compensating them. All innovation is, after all, built on someone else's ideas.
Filled with pork, unrelated funding requirement and special interest exceptions the bill fails completely to provide any relief to the American citizenry from an unstemmable flood of "with a computer" patent applications.
There is no right to feel safe thru security vaudeville at the expense of everyone's freedom, privacy and tax money.
Watered down legislation such as this is clearly the result of the massive influx of dollars into the pockets of our politicians via the industries who thrive on ridiculous structures like the US Patent Office. Until we force our representatives to get off that teet we are foolish to expect anything less.
Nothing says goodbye like a tax.
The established 'business' entities have too much... 'investments' riding on patents, as such a meaningful reform will never happen. What winning card player will ask to be dealt a new hand?
ELOI, ELOI, LAMA SABACHTHANI!?
It is not true that the map of freedom will be complete
with the erasure of the last invidious border
when it remains for us to chart the attractors of thunder
and delineate the arrhythmias of drought
to reveal the molecular dialects of forest and savanna
as rich as a thousand human tongues
and to comprehend the deepest history of our passions
ancient beyond mythology's reach
So I declare that no corporation holds a monopoly on numbers
no patent can encompass zero and one
no nation has sovereignty over adenine and guanine
no empire rules the quantum waves
And there must be room for all at the celebration of understanding
for there is a truth which cannot be bought or sold
imposed by force, resisted
or escaped.
Greg Egan as Muteba Kazadi
Huh? The solution to patent and copyright problems is infinitely broad and permanent patents and copyright?
I don't see why they can't just write a law establishing that you own your ideas
How on earth can someone "own" an idea? Better yet, why would you think it's a good idea to try to pretend that someone owns an idea?
Patents and copyrights are intended to prevent people from free-loading off of the work of others
That fundamental misunderstanding is part of many of the problems we are seeing with the patent system today: patents exist to give you the first stab at exploiting your ideas. The notion that once someone has an idea it's theirs and no one can ever use it again is just plain ridiculous.
sic transit gloria mundi
Some real consideration should be given to getting rid of patents altogether. Really, do they serve any real usefulness other than the stuff of Big Corporate Sticks? It's way too expensive for the little guy to get a patent; still even more expensive for the little guy to defend his patent against VBCs that have deep pockets.
But, seriously, what would happen to the marketplace if patents were to be thrown out tomorrow? Would innovation cease? I don't think so. It would change for sure, but it may actually change for the better, giving the Little Guy an edge, a leg up, since he would not fear being crushed out of financial existence by VBCs.
Really, I don't know how the patent examiners could possibly be knowledgeable about all the various areas of mathematics, science, and technology that has grown exponentially since patents were created.
Ruby Neural Evolution of Augmenting Topologies
the real problem with patents in IT is the fact that they grant such long protection for products with such short shelf lives.
True, and here is the problem.
You can't tell from the claims whether something is a "software" patent or not. Any software patent claim I can engineer to be a piece of hardware. The problem is that there really aren't clear claims that scream software (as from Beugrard claims, which are secondary claims anyhow [never could spell that]) . You can't ban all method claim as that would ban claims on how to manufacture things, etc.
So, the answer is to judge whether or not something is software based when enforcement time comes. Now you have a clearly defined product. Now you can clearly say "This is >50% software. We don't enforce patents against software."
So, we need to fix software patents not at the granting stage, but at the enforcement stage.
As for your schematics patents, we have those. They are called design patents. The problem with them is that you move something small (where a bolt is) and you have just designed around their patents.
While it's true that high-tech patents last too long, technology is also a field where many inventions are easy to implement once you know about them. Without patents, the R&D you do is automatically shared by the whole industry -- which reduces your motivation to do R&D.
Regarding extensions, a major point of the patent system (as opposed to making everything a trade secret) is to encourage everyone to publish their inventions so others can build up on them. Patents (in theory) only cover actual inventions, not ideas, and indeed you can patent a modified version of an existing invention.
A bigger problem today is with idea patents like "business methods" and software patents, but the real problem is that "obviousness" has ceased to be a meaningful limitation on patentability. As courts rule that the idea of "I'll do things the way I always did them, but the calculations will be done by computer and not by hand" is patentable, or that it is an original idea that a course-management system should accomodate users which are students and TAs at the same time, patents become a problem. I'd like to ban software patents in general, but I don't think it makes good sense. Most software patents are bogus because they are obvious, but let's say you invent a new faster algorithm for multiplying matrices. This costs money to develop, and the basic rationale behind patents leads me to think that you should be able to patent this algorithm. Of course, if someone can improve the algorithm -- they would gain.
reverse engineering is the basis of the computer industry. if compaq had not reverse engineered the original IBM pc bios there would never have been a commodity PC industry. which would have greatly slowed the pace of computer uptake. so basically one software patent could have stopped the entire PC market from happening.
My keyboads not woking popely.
Why should I worry about a lawsuit for reverse engineering software? What exactly has someone else lost by my converting machine readable code into human readable code? The fact that you think someone can own on idea is disturbing on a whole other level. Or even that you think copyright and patents assign ownership...
And honestly, when you "gain leverage" in the marketplace, and in this case politics as well, there is some level of spooning or money involved.
Translation: we will never see useful patent reform because it is not in the best interests of the entrenched powers. You're probably right, unfortunately. That's why representative democracy doesn't work. If you really want to remove the tyranny of the aristocracy, there's only one way to do it: a direct democracy. Of course, then you get the tyranny of the majority. Not sure which is worse. Either way, a significant percentage of people get screwed.
The only form of government that really prevents tyranny, ironically, is a benevolent dictatorship by someone who is not only incorruptible, but also both intelligent and caring. Of course, reliably finding such a dictator has proven difficult; throughout all of this planet's history, there have only been maybe two or three who meet even those three basic criteria... and therein lies the fundamental problem: people are still subject to their animal nature to some degree, as much as we would like to believe otherwise.
I'd honestly kind of like to create a government based on the "tyranny of the informed"---a direct democracy in which everyone votes every Saturday. At the beginning of the day, everyone gets to see a list of issues and what time their debates and voting will be held electronically via web browsers. People interested in that issue will vote on it and people uninterested will not. For the most part, this will tend to largely create a voting pool that is self-selecting for the most competent people to decide on a given issue. It will also largely negate the effect of political parties since the role of the representatives will not be making the decisions themselves.
The basic design is as follows: during the week, the representatives caucus and agree on which fifteen issues will be presented for a given Saturday vote. They decide who will speak for each side of each of the debate. Each side will have fifteen minutes to divide among their members. Each side uses that time to present the issue from their perspective. The public votes for ten minutes. Then, the next issue is presented, and so on. If there are more than two options (e.g. choose option A, option B, or neither), then there may be more than two positions. If there are a lot of these, you might end up having to tackle fewer issues that week to keep the total time under twelve hours, but the basic principle still applies.
In addition to the self selection, voters should also be required to show an awareness of all sides of each issue. Representatives of each side of the issue would write ten questions to determine whether or not a given voter understands every side of the issues. The questions must have a provably factual answer, though they may include questions about one side's opinion, e.g. "The Pro side believes that this DHMO legislation is a good idea because A. water is bad for you, B. they were bought off by Coca-Cola, C. they are opposed to the salt industry." They may not attempt to present opinion as fact, and either side may contest a question on these grounds, in which case a 2/3rds majority vote of the representatives is needed for the question to be allowed on the ballot. In a private session on Friday, these details will be hammered out and voted upon by the representatives. The three questions from each side with the greatest amount of support will be included on the ballot.
Any vote from a voter who gets fewer than 70% correct answers on these questions will not be counted. This will exclude the votes of people who lack enough of a fundamental understanding of the issues to make an informed decision. More to the point, however, this will also discourage grandstanding and encourage the representatives to inform the voters about the relevant facts that support their position. If they fail to adequately present those facts during their speeches, voters who might side with their position will not g
Check out my sci-fi/humor trilogy at PatriotsBooks.
By the way, I have a patent on this form of government. :-D Just kidding.
Check out my sci-fi/humor trilogy at PatriotsBooks.
seems to be the only way then... (AI applied to business)
Presentation Oct 2005 http://www.cwi.nl/pr/CWIiB/2005/
Abstracts (doc format)
A.I.It sounds to me like you're saying you'd like the people in charge to know what they're doing. Which, in the case of a representative democracy, means you'd like the people who vote to know what they're doing.
People who know what they're doing seems to be the prerequisite to doing anything right. I'm not so sure even a tyranny would work, because if the tyrant knew what he was doing, he'd know that absolute power corrupts absolutely and would divest himself of it immediately.
Good, honest people can make a bad system work pretty well, but bad and corrupt people will make short work of even the best system.
From what I recall, IBM's design was in fact patented.
Compaq used the cleanroom design technique to determine the operating parameters and logic, and then re-implemented those specs with an original package.
Move all sig!
I want to file a patent to cover all really stupid and pathetic legislation, it's a broad far reaching concept that I feel is over used, obviously I invented stupid and pathetic legislation otherwise how would I right now be patenting it? I suppose though, it's been around far longer then i've been alive, so I won't ask for backward royalties, i'm a forward thinker.
It was copyrighted not patented thus the need for the cleanroom design.
My keyboads not woking popely.
That's easy: I have an idea, but I don't tell you. I still have it, you don't.
Unless, of course, I arrive at the same idea independently.
sic transit gloria mundi
Patents and copyrights are intended to prevent people from free-loading off of the work of others
This statement is factually false. Go and read the US Constitution if you want to know what patents and copyrights are actually intended to accomplish.
I don't see why they can't just write a law establishing that pi is 3.
But seriously, you own your ideas as long as you keep them a secret. Once you reveal your idea (copying it into other peoples' brains) you can't own it. I don't mean it's not just or not desirable; I mean that it's not possible. You just transmitted it to someone, so you don't exclusively have it anymore, unless you're going to cut open other peoples' skulls.
There's also this problem: what if two different people, who own their own ideas, happen to have the same idea? That doesn't (statistically speaking) happen with copyright, but it happens thousands of times per day with more general ideas (the kind of stuff that patents cover).
"Believe me!" -- Donald Trump
"The solution to patent and copyright problems is infinitely broad and permanent patents and copyright?"
That's what you said, not what I said. All I said was that there is no need for patents. You read "infinitely broad" into my comment, and that wasn't what I meant. Obviously any law would include exemptions, limitations, and other applicable criteria.
"How on earth can someone "own" an idea?"
How can someone own anything? Ownership is a legal construction. Owning ideas is no different from owning land or cars in that respect. It simply means that someone has to ask your permission before they can use it. Copyright is currently granted without governmental approval, and it works better than the patent system does.
"patents exist to give you the first stab at exploiting your ideas."
No, that's how patents work. They exist because people believe it is unjust when someone else profits from your work without your permission. For example, if you spent two years inventing a new type of internal combustion engine, and then released it onto the marked only to find that GM copied all your work and sold the engine at a lower price, you would likely think that was unfair. That is why we have patents. All I'm saying is that if GM stole your work, you should be able to sue them for fair compensation regardless of whether or not a patent reviewer gave you a piece of paper.
Comment removed based on user account deletion
Owning ideas is no different from owning land or cars in that respect.
Again, why? Why do you want to pretend that ideas are physical objects? Ideas have no limited lifespan, thousands of people will routinely come up with the same idea, why would the first person to do so have any sort of absolute claim to it?
Copyright is currently granted without governmental approval, and it works better than the patent system does.
There most certainly is government approval, it's just automatic. From what I can see, the main problem with the USPTO is that too many trivial and overly broad patents are granted, why would making patenting automatic, like copyright, improve the situation (OK, so you don't want to call them "patents", but you want a law that establishes a limited monopoly to commercially exploit an invention, which we currently call "patents").
I would also argue that the copyright system is just as broken as the patent system, and for the same reasons.
They exist because people believe it is unjust when someone else profits from your work without your permission. For example, if you spent two years inventing a new type of internal combustion engine, and then released it onto the marked only to find that GM copied all your work and sold the engine at a lower price, you would likely think that was unfair.
Right, that is exactly the situation that patents were designed to prevent (way back when), except the only stated goal was to provide you a means for profiting from your invention, and thus motivation to invent things. The concepts of "fairness" or "justice" have nothing to do with this - lots of things are unfair, we don't pass laws to correct them all. Maybe I'm just splitting hairs here, but the original purpose of patents seems to go to the heart of how they are being misused today.
you should be able to sue them for fair compensation regardless of whether or not a patent reviewer gave you a piece of paper
If I'm remembering this correctly, the US is one of the few countries that actually uses a "first to invent" (rather than "first to file") patent system; ie you are very much entitled to sue GM in such a case, you just need to show that you, in fact, came up with the invention first. If you actually applied for a patent and even a USPTO reviewer rejected it, well then, it must be an invention of truly stupendous obviousness.
The main difference between patents and copyright is that, by definition, two different people cannot independently create the same copyrightable work; whereas that's entirely not true of patents.
sic transit gloria mundi
"Ideas have no limited lifespan"
Nor does land. . .
"why would the first person to do so have any sort of absolute claim to it?"
Again, you said that they should have an absoulte claim to it, not me. I just said they should have a claim to it.
"The concepts of "fairness" or "justice" have nothing to do with this - lots of things are unfair, we don't pass laws to correct them all."
We certinally try to! That's the whole reason we have laws! Why do you think we have them?
"If I'm remembering this correctly, the US is one of the few countries that actually uses a "first to invent" (rather than "first to file") patent system; ie you are very much entitled to sue GM in such a case, you just need to show that you, in fact, came up with the invention first. "
That's not entrely true. You could get their patent rejected, but you couldn't demand royalties or dammages from them unless you had a patent.
"I would also argue that the copyright system is just as broken as the patent system, and for the same reasons."
No it's not. You can write a book and publish it without fear that someone else will copy it and take credit for your work. If you invent something, you must get a patent on it or else someone else will benefit from it at your expense.
Well, they did, more or less, but those pesky mathematicians shot it down. Damn them and their irregular ways!
Between the falling angel and the rising ape
I'd honestly kind of like to create a government based on the "tyranny of the informed"---a direct democracy in which everyone votes every Saturday. ... The public votes for ten minutes.
You honestly don't want observant Jews (or people who work on Saturday, and can't spare the time to sit in front of a computer for hours for the entire process, or the specific ten minutes for a single issue) to vote? That doesn't sound encouraging.
Ultimately, I don't care for it. IMO, governments draw their legitimate authority and power to govern from the consent of the governed; thus, I think that anyone who is subject to the authority of a particular government should be enfranchised. Whether they're informed or not is irrelevant; the government is equally the servant and creation of all of its people, so it must behave equally toward them. To discriminate amongst them on any basis would be to unjustly govern the uninformed without their consent.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
My main gripe with patents is that they use federal regulation establish intellectual property.
That's just a weird statement, right there. "Intellectual property" is a terrible phrase, which is deliberately meant to confuse people. But basically, if anything, it would refer to a patent (or copyright, etc.) itself, and not the invention the patent pertains to, nor anything which embodies that patent, such as a tangible machine. So you seem to be saying that your gripe with patents is that there are federal laws that provide for patents. Like I said, it's kind of odd.
I don't see why they can't just write a law establishing that you own your ideas, and that other must secure your consent or give you reasonable compensation before using them.
1) Ideas are more plentiful than air; why should there be ownership of them. There's certainly no scarcity.
2) Ideas are not really valuable, in the main. I have an idea that I'd like to fly around like Superman. I don't know how I would accomplish this, but if someone else figures out the hard part, why should I be able to demand payment because of my contribution?
3) Ideas are largely private. If you don't publish them for all the world to see, how would anyone know what was already out there, who came up with it, and when? If you do publish them, who pays for that?
4) What's 'reasonable'?
5) Ideas are generally unoriginal. If a hundred people each independently have the same idea, how is the conflict between them resolved?
6) Ideas are extremely broad. If I have an idea for a story that goes 'Boy meets girl,' or 'Man against nature,' then I basically get paid by every author and filmmaker in the world. Seems like quite a windfall for so little effort.
7) The transactional costs would be so immense that the economy related to ideas -- inventions, creative works, etc. -- would grind to a halt, causing dramatic harm to human civilization and progress. How could that possibly be a good idea? I'm reminded of the Golgafrinchans, who would surely love the notion.
8) It's just plain dumb. It doesn't even pass the laugh test.
Patents and copyrights are intended to prevent people from free-loading off of the work of others
No they're not! And that sort of thinking is what has screwed it all up!
They're intended to encourage free-loading, which is a highly useful and desirable activity. Why the hell should everyone have to reinvent the wheel, after all. Better to freeload off of the inventive caveman who came up with it. Think about how patents (and copyrights, until the system broke in the 70's) require publication. Think about how the terms expire (again, increasingly broken as terms grow longer).
The ideal world would be one in which as much public creative and inventive activity as possible took place, and there were no patents or copyrights, and everyone could free-load as much as they pleased. We can't manage that, it seems, but we should try to get close, with as much creative and inventive activity as possible and as much free loading as possible. We may have to trade one for the other, but they don't scale linearly (year one of a copyright is worth far more than year one million, even though both are just one year long), so we can get gains in excess of costs, if we're careful.
Just something to think about.
If you had, you wouldn't of bothered to make that post.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
And how will the people who vote "know what they're doing" if the information they get is tailored by a team of marketing professionals who work for those in power?
The Internet is the only thing preventing complete control of all media, and there are still people here who don't think Net Neutrality is important.
People are going to have to wake up and grow up fast or we're fucked.
I'm talking to you.
You are welcome on my lawn.
The main difference between patents and copyright is that, by definition, two different people cannot independently create the same copyrightable work
Yes they can. If Alice and Bob each independently create the exact same thing, then each one of them can get a copyright on it, and each can do whatever they like without infringing on the other. This is because copyrights do not require novelty, like patents do. It's unlikely, the more complex a work is, but the law does permit it. The main thing with copyrights is originality, i.e. whether the author originated the work. If Bob copied from Alice, then his work is not original, and he infringed. If Bob didn't copy from Alice, and really did independently create the same thing, then his work is original.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
Yes they can. If Alice and Bob each independently create the exact same thing, then each one of them can get a copyright on it, and each can do whatever they like without infringing on the other.
Which is what I was saying, except I would say that they created two distinct copyrightable works, which happen to be identical. My point was that one of the main problems with the patent system - granting of obvious, broad patents that prevent others from doing common things they arrive at independently of the patent-holder's work - does not exit for copyright; and that may be the main reason why automatic copyright makes a lot more sense than automatic patenting the OP was suggesting.
sic transit gloria mundi
First question you have to ask is who owns all these patents are they americans or foriegn companies/individuals. If its the latter then your patent system is working against you to make you less competivitve. In fact it could even kill whole industries. Is that what you really want?
My point was that one of the main problems with the patent system - granting of obvious, broad patents that prevent others from doing common things they arrive at independently of the patent-holder's work - does not exit for copyright; and that may be the main reason why automatic copyright makes a lot more sense than automatic patenting the OP was suggesting.
Automatically granted copyrights do not make any sense at all; it's a terrible idea.
Copyrights are meant to serve the public good by encouraging the creation and publication of creative works so that they will enter the public domain as rapidly as possible. This means that works where the author would have created them anyway, and wasn't encouraged by the availability of copyright, should not be copyrighted; authors that are willing to work for free should not be paid, as it would be wasteful. Consider your post on Slashdot just now; would you have posted it, even if it wasn't automatically copyrighted? If so, why do I need to give you the costly, artificial encouragement of a copyright for something you would do anyway?
Likewise, if a work is not published and is not intended to be published, then the encouragement of copyright is not enough, regardless of whether it is automatic or must be applied for. It should not be automatically granted in that case, since the thing that we want to result from copyright (creation and publication) isn't happening.
If authors must apply for a copyright in order to get one, then the authors are are encouraged by copyright will identify themselves, for the most part, limiting the encouragement to those who need it. If publication is required as a part of registration (even if the publication is limited to copies that must be sent to the Library of Congress, where anyone can go to read them), then it has encouraged what we wanted as well. This works very neatly.
Also, the registration works like land and car registries: if someone wants to get in touch with the holder of the copyright (in order to make a licensing deal, for example), then there is a name and address on record. If someone is curious as to whether the work is copyrighted or not, the registry can help them know for sure. We have patent and trademark registries online for exactly this purpose. An online copyright registry is very much needed, and it's only really worthwhile if all copyrighted works are in it, because you can't get a copyright otherwise. It is also a traditional part of our American copyright law. It is only due to foreign influences and corruption that it has changed, just in the last few years. Stopping the mistake of automatic copyright and going back to how we usually do things would be welcome.
If we require copyright holders are required to re-renew every few years, or lose their copyright (patents and trademarks work this way; US copyrights used to have renewals from 1790 to 1978, so it's traditional), then the information in the database can remain current. More importantly, this works to limit the encouragement we provide to the amount needed. If Alice is encouraged to create and publish a work by 5 years worth of copyright, but Bob needs 10 years, then it is better to grant each the minimum they need, rather than to give Bob too few years (assuming he doesn't need an unreasonable amount) or Alice too many years. This is just the same as having an opt-in system where authors must identify themselves as needing, or at least, wanting, a copyright. This way they also have to indicate whether, after a few years, they still need, or at least, want, the copyright. Historically, most authors did not bother to renew their copyrights, which means that they were encouraged by one term, but didn't care about the second. So this too will serve the public good.
There is really no downside to this, and no need for automatic copyright, except for one very narrow circumstance. We don't want incomplete works which are still being created, or finished works which are being shopped around to publishers, to
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
Those problems are trivially solved, though. Just rerun the debates on C-Span throughout the week. Let people vote on the issues at any time during that week. The purpose for leaving ten minutes for voting is not to force the vote into ten minutes. The purpose is to leave time for people to vote while the details are still on their minds.
This design doesn't discriminate against anyone. It ensures that everyone is informed. All they have to do is pay attention and vote based on the issue. Indeed, this prevents government without the consent of the governed. That's what we have now---lawmakers create laws that we often don't even hear about until it is too late to do anything about it. More fundamentally, though, it fixes the biggest problem with our government today: block voting---people who vote for or against someone or something based solely on being told that "this is bad" by someone with an agenda. It forces people to make their own decisions based on their own opinions, knowledge, and gut feelings instead of blindly multiplying the votes of a few individuals across hundreds or thousands of votes. As such, it is actually significantly less discriminatory and more fair than the current system.
Check out my sci-fi/humor trilogy at PatriotsBooks.
"Ideas are more plentiful than air; why should there be ownership of them. There's certainly no scarcity."
I would like to point out the following message listed on the comment page:
"The Fine Print: The following comments are owned by whoever posted them. We are not responsible for them in any way."
Why would Slashdot claim that I own the comment I've posted here? There's certainly no scarcity of comments. That's an important question, and I encourage you to think about it.
"So you seem to be saying that your gripe with patents is that there are federal laws that provide for patents. Like I said, it's kind of odd."
No, my gripe is federal regulation. I don't like the way that people have to submit an application to the patent office in order to have their intellectual property protected. It seems that any patent worth having eventually needs to be defended in court anyway. So why not just skip the patent office? That's what I'm saying.
"2) Ideas are not really valuable, in the main. I have an idea that I'd like to fly around like Superman. I don't know how I would accomplish this, but if someone else figures out the hard part, why should I be able to demand payment because of my contribution?"
Exactly, so why should people take out patents on them? Obviously, we should only bother with the ones that are valuable. There are a lot of worthless patents out there just taking up space and making things more complicated.
"3) Ideas are largely private. If you don't publish them for all the world to see, how would anyone know what was already out there, who came up with it, and when? If you do publish them, who pays for that?"
When your case goes to court, you will need to present evidence that the party you are suing was aware of your invention, and used your work to his own benefit without your permission. Obviously, if you don't have any proof, and discovery doesn't turn any up you will not be able to prove your case. This is how civil court works now, so it's not outlandish in any way.
4) What's 'reasonable'?
What's reasonable is determined by the court. Again, this is currently practiced by civil courts, and it's not anything new.
5) Ideas are generally unoriginal. If a hundred people each independently have the same idea, how is the conflict between them resolved?
One person would be the first to bring a viable product to market. If the others feel that he has unfairly benefited from their work while cutting them out of the loop, they would sue him. The court would independently address the merit of each claim, or a settlement would be reached with each affected party.
"6) Ideas are extremely broad. If I have an idea for a story that goes 'Boy meets girl,' or 'Man against nature,' then I basically get paid by every author and filmmaker in the world. Seems like quite a windfall for so little effort."
Your case has to hold up in court, it can't be an outlandish claim that no jury or judge would accept. You would bankrupt yourself bringing lawsuits based on a claim like that one.
"7) The transactional costs would be so immense that the economy related to ideas -- inventions, creative works, etc. -- would grind to a halt, causing dramatic harm to human civilization and progress. How could that possibly be a good idea? I'm reminded of the Golgafrinchans, who would surely love the notion."
The system I'm proposing would be simpler than the one we currently have. It might not be cheaper, but it certainly wouldn't be a lot more expensive. If the current system works, this one would too.
"8) It's just plain dumb. It doesn't even pass the laugh test."
A lot of good ideas don't pass the laugh test. So what?
"They're intended to encourage free-loading, which is a highly useful and desirable activity. Why the hell should everyone have to reinvent the wheel, after all. Better to freeload off of the inventive caveman who came up with it. Think about how patents (and copyrights, unti
Why would Slashdot claim that I own the comment I've posted here?
You've got me. They're often wrong. For example, my comments are in the public domain, and people frequently post works that they don't have rights to.
I suspect that they were trying to say that they don't make any claim on what people post here. If so, they could have worded it much better.
No, my gripe is federal regulation. I don't like the way that people have to submit an application to the patent office in order to have their intellectual property protected.
One important note here: It is the federal government that grants you a patent in the first place. You certainly don't have any exclusive rights merely for having invented an invention. If you don't like the US doing it, I suppose the several states could each run their own patent office. However, past experience shows that they'd do a terrible job; that's why the federal government has many of the powers it has to begin with, including the patent power.
In any event, it serves some other useful purposes. First, a database of inventions is a good source of prior art, if we care about novelty and nonobviousness. Second, registering and publishing inventions is a good way to put the rest of the world on notice that they exist and that someone has made a claim as to them. It's rather like how there are registries for land records, lest multiple people have conflicting claims to the same land and no good way to determine who's right. Third, since the power to grant patents comes from the consent of the governed, and since the government is meant to act in the way that best serves the public interest, why should the rest of the populace consent to giving you a monopoly over us, in the form of a patent, unless you abide by the rules that we've set up to benefit us? We have a right to be self-interested too, and while our interests and yours can coincide at times, they are different.
It seems that any patent worth having eventually needs to be defended in court anyway. So why not just skip the patent office?
1. The courts are bad at this, and the PTO specializes in this. 2. The courts have more important things to do, and the PTO doesn't. 3. The courts are already very busy, and in order to get on with #2, it would help if they weren't so much busier. But this is the PTO's business. People already complain a lot about the PTO not doing its work properly so as to reduce the number of patent cases in the courts.
Exactly, so why should people take out patents on them?
As it happens, the example I gave, while an idea (and therefore protectable under your proposal) is not an invention, and therefore not patentable. So I couldn't get a patent on it if I tried.
When your case goes to court, you will need to present evidence that the party you are suing was aware of your invention, and used your work to his own benefit without your permission. Obviously, if you don't have any proof, and discovery doesn't turn any up you will not be able to prove your case. This is how civil court works now, so it's not outlandish in any way.
So you're saying that there will be an originality requirement for patents? That's new. The way it works right now, if Alice invents something and gets a patent, and then Bob independently invents the same thing, without actual knowledge of Alice's work, then Bob cannot get a patent on the same invention, and in fact, is infringing if he makes or uses it. Actual knowledge is irrelevant; he has constructive knowledge. So I think you're misinformed about the current system. That can't help you make good suggestions for reforming it.
One person would be the first to bring a viable product to market.
Make up your mind: first you said you were protecting ideas, and now you're saying you'd protect reductions to practice. They are totally different.
Your case has to hold up in court, it can't be an outlandish claim that no jury or judge would accept.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
"1. The courts are bad at this, and the PTO specializes in this. 2. The courts have more important things to do, and the PTO doesn't. 3. The courts are already very busy, and in order to get on with #2, it would help if they weren't so much busier. But this is the PTO's business. People already complain a lot about the PTO not doing its work properly so as to reduce the number of patent cases in the courts."
Well, it's the courts who hear the patent law cases, not the patent office. If they are bad at it, that's a problem that plagues the current system as well. I don't know if it is reasonable to expect the PTO to do a better job than they're doing now under any conditions. They're not a group of all-knowing sages, and they can not possibly know all the ramifications of patents they grant or decline. Moreover, I don't think it is possible to grant patents in a way that would significantly reduce lawsuits. In fact, I don't believe that the patent system even produces fewer lawsuits than the system I'm proposing. And even if it does, it does so at the expense of fairness, which I believe is bad for the economy (among other things).
"Basically, your idea is tremendously and obviously unworkable for a myriad of reasons."
First of all, my idea is not fully developed. I literally just thought about it while I was reading the article, and threw it out there and see what other people thought about it. If you wait too long to post your comment, it will get lost at the end of the thread and no one will read it or respond to it. That being said, my original comment was better thought out than most of the responses to it. I wish I hadn't used the words "own your ideas", because I think it gave people the wrong impression about what I was suggesting. All I was trying to say was that I don't think the patent office accomplishes anything more than a law granting similar rights would.
This is the internet, and I don't have to be a patent attorney to post ideas about patent reform. When I am testifying before congress you can complain about my lack of credentials. But on the Slashdot discussion board, it's a silly thing to complain about. There are literally posts about "gay niggers", and you're complaining about my post! If you feel it's beneath you, just don't read it. There's no reason to be rude or condescending.
Your "myriad of reasons" mostly evaporates when one considers how a real law would be written and used. First of all, people generally sue when they believe they can make money, so people wouldn't waste a lot of time suing over bad or un-useable ideas. Nor would they waste much time suing anyone who doesn't have a profitable product. That means that the people getting sued would have resources to defend themselves. Also any law written would likely exempt "obvious" and already-existing ideas, and have some kind of time-limit or useful lifespan. Finally, any law could limit recoverable damages to the profits generated from the invention (though common sense dictates this already). You could also set a time limit on when the lawsuits can be brought over a product. You could limit it to the first year or so a product is marketed, and you wouldn't have these cases where a product has been on the market for 10 years and suddenly there's a patent dispute. You could even limit the damages to profits earned after the lawsuit was filed, or notice was given to the offending party, and allow any disputes with merit to be easily settled out of court.
I am an engineer, not a lawyer. I took a course on problem solving, and my instructor told me that when I am presented with a new idea, I should not look for reasons why it won't work, but instead look for ways to make it work. You should do the same here. Often the most revolutionary ideas come from amateurs rather than professionals. That's because professionals have too much exposure to how things are done and why they are done that way. They have preconceptions about how things must be done. All the same I'm not a lawyer, so it's going to be hard for me to understand all the pitfalls and come up with solutions.
Ah, yes I do. Too long out of high school maths class :)
Between the falling angel and the rising ape
Well, it's the courts who hear the patent law cases, not the patent office.
No, the PTO is staffed with patent law specialists. Even the examiners have to be well-versed in it. And the PTO does have administrative courts with ALJs; they hear some patent law cases. The Article III courts, OTOH, have to be more general, as they hear civil and criminal cases of every kind. Even the Federal Circuit isn't all that great at these things.
In fact, I don't believe that the patent system even produces fewer lawsuits than the system I'm proposing.
Your system only produces lawsuits. It has no other mechanism for doing anything whatsoever. It's as though if I wanted to get a drivers' license, I had to sue the state for one, instead of going to the RMV. Or if I wanted to file my taxes and get my tax refund, I had to sue the IRS, instead of just sending the forms to them directly, and having them send me a check in response.
We have administrative agencies for a reason.
I literally just thought about it while I was reading the article, and threw it out there and see what other people thought about it.
I believe it.
This is the internet, and I don't have to be a patent attorney to post ideas about patent reform.
True, but it means that your ideas are less likely to be good ones than if you knew the policies underlying patents, the history of patent law, the current system, and the details of other current reform proposals. It's like voting; any enfranchised person can vote, but well-informed voters are preferable.
If you feel it's beneath you, just don't read it.
Well, actually, most of my posts here are with the intent of correcting mistakes that people have as to the law, particularly copyright law, which is my field. You made your suggestion, and I pointed out flaws in it. This was partially for your benefit, and partially to discourage other people from agreeing with you because they also hadn't seen the flaws.
Also any law written would likely exempt "obvious" and already-existing ideas
How do you know that they're obvious or not novel unless you require them to be published and set up a registry so that you can compare incoming applications with what's already on the books? Researching prior art in patent cases is already a huge pain in the ass; you'd make it far more laborious and expensive. Aside from benefiting patent lawyers et al, how is this good for the public?
Finally, any law could limit recoverable damages to the profits generated from the invention (though common sense dictates this already).
No. Common sense would be the damages suffered by the plaintiff plus the profits of the defendant which are attributable to his infringement. BTW, ideas are not the same thing as inventions, so would you please pick which of the two you are talking about. As it happens, inventions are a subset of ideas.
and have some kind of time-limit or useful lifespan.
Based on what? Without a registration, you have no idea when the plaintiff actually invented the thing. As far as you can tell, it would be as of the date the lawsuit was filed. Anything further would require pouring through evidence, which means that it may be untrustworthy (evidence isn't automatically true, as many laymen think, but rather it is that which is examined by the finder of fact for any truth it may contain. E.g. two witnesses with opposing testimony both give evidence, but that doesn't mean that either of them actually told the truth). A registry that anyone can look at, and which gives information as to invention dates is better.
It's especially better if people can infringe by independently inventing something. Without a registry to consult, they'd have no way to know that someone else already invented it. Had they known, they could have done something else (which would be of more value to society) and could have avoided infringing, instead of blundering right into a lawsuit they're sure t
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.