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Patent Chief Decries Continued Downward Spiral of Patent Quality
Techdirt is reporting that Jon Dudas, head of the US Patent Office, is lamenting the continuing quality drop in patent submissions. Unfortunately, while this problem is finally getting the attention it deserves, the changes being implemented don't seem to be offering the correct solution. "When you set up a system that rewards people for not actually innovating in the market (but just speculating on paper), then of course, you're going to get more of that activity. When you set up a system that rewards those people to massive levels, well out of proportion with their contribution to any product, then of course you're going to get more of that activity. When you set up a system that gives people a full monopoly right that can be used to set up a toll booth on the natural path of innovation, then of course you're going to get more of that activity. When the cost of getting a patent is so much smaller than the potential payoff of suing others with it, then of course you're going to get more of that activity. The fact that Dudas is just noticing this now, while still pushing for changes that will make the problem worse, is a real problem. Patents were only supposed to be used in special cases. The fact that they've become the norm, rather than the exception, is a problem, and it doesn't seem like anyone is seriously looking into fixing that."
My work here is dung.
At first I accidentally read that as Don Judas. Now that would be an interesting name for the head of the USPTO!
Taking guns away from the 99% gives the 1% 100% of the power.
I patented the means of patenting "quality patents".
Well, no, not exactly. It's a complicated case, eldavojohn. Lotta ins. Lotta outs. And a lotta strands to keep in my head, man. Lotta strands in old Duder's--
He wanted compensation for the first rug. He wanted the second one back. The one that held sentimental value for Maude.
-Peter
Not only is innovation stifled, but it serves to further concentrate wealth, and the power over future wealth, into the hands of fewer and bigger corporations. How about we change it so that only an individual can hold the rights to a patent, without allowing the benefits to accrue to the employer of that individual? And that individual must be the actual creator of the patented idea in question?
it doesn't seem like anyone is seriously looking into fixing that
Well, when the benefits of owning dodgy patents can be into the tens of millions, it would be well worth sinking a few million into the right peoples pockets to make sure no change goes unchallanged.
All the while keeping any revision of the system on hold long enough for the rest of the world to overtake the US.
Yeah, there are places in the world where innovate is still a word with a real and exciting meaning, not just a tired and overused technology business buzzword. I do wish this would be realised by the people who are in a position to change this bizarre patent mess.
A learning experience is one of those things that say, 'You know that thing you just did? Don't do that.' - D. Adams
I think that we might want to look at the fees we are charging for registering a patent. Perhaps we could implement a fee structure where small inventors pay less than large corporations that can afford more. Also we might want the fees to be based on how unique and original the idea is. Granted, this would be a rather subjective way to assess fees but this is an area where we might want to consider.
Couldn't this problem be easily solved by telling all the patent examiners
"Memo: Hey, As of this morning we're going to raise the bar a bit as to what counts as 'novel.' So, clerk x, could you please deny the patent on your desk for Claratin E. Thanx, xoxo, your noble leader."
Patent fees have simply not kept pace with the value of IP and innovation. If they put them on a pricing schedule that goes up over time, and start them at $300k today, we'll see a dramatic reduction in frivilous patents.
Even more radical would be to place limits on the collectible licensing fees based on the original filing fee. This would encourage some companies to pay more for their patents, in order to create a greater enforcement cap, but would cause them to do so only because they believed the patents to be defensible.
There are a lot of problems with today's patent system, but there is no single "silver bullet" solution to solve them all. Disbanding the patent system altogether will never happen. It does have a noble purpose when applied properly. However, it has become a cash cow whereby companies patent every single thought of their employees in order to build a "patent portfolio". The first obvious fix is to define business method patents and ban them. They are ridiculous. How that is done, I don't know. Another thought is to develop some sort of Devil's Advocate system, where an examiner is assigned to each patent who sole job is to disprove an applications patentability. A final thought is to somehow tax patents as though they were the valued assets they are represented to be. Taxing patents on transfer is easy enough, and may be done already (although this tax should be upped, if the original inventor isn't using the patent). There are ways to make things better. It just takes some thoughtful debate and a willingness of the politicians and bureaucrats to effect some change. Enough "big corporations" are getting burnt by patents to provide some momentum, I hope.
It's fine to condemn frivolous patent trolling, but one important part of the reality is that it is often enormously expensive to implement a genuinely innovative idea. Innovation therefore only goes into production when huge sums of money support the organization behind it, and this is profoundly stifling of individual invention and creativity. Individuals with good ideas often cannot realize any rewards for their ideas except through patenting and litigation, since it is notoriously difficult for a individual inventor or innovator to secure a licensing agreement with a producer ahead of the fact. In absence of that option, post-facto licensing in the form of patent lawsuits is the only alternative. It sucks, but that's the way it is. If large companies were more willing to honestly license good ideas rather than attempt to circvumvent them or win wars of attrition against individuals through protracted litigation, there would be far less need of patent trolling.
A-Bomb
If they put them on a pricing schedule that goes up over time, and start them at $300k today, we'll see a dramatic reduction in frivilous patents.
This only screws the little guy over and ensures that bigger corporations will keep patenting. 300k to a Microsoft, IBM or pharmaceutical company is small fries. To a small business owner or full-time dreamer like me, it breaks the bank. It's an artificial barrier to entry that does not address the real problems.
The threshold should not be financial, it should be by virtue of technical merit. Set the bar higher, the terms shorter, etc. Have a maximum duration over which a patent owner must implement said patent, or forfeit it, similar to enforcement of trademarks (see trademark dilution). It's not precisely the same concept, but I think it's a virtuous idea.
I tried to apply for a patent for a emergency CD ejector, made from a straightened paper clip. They turned me down.
Every time you call tech support, a little kitten dies.
Calmer than you are.
Ice Cream has no bones.
As we have discussed before, there is an equally significant problem with patent applications that are improperly rejected. Since issued patents enable one to obtain funding to bring new technology to market, this is as least as serious a problem for our society as the more well-known "junk patent" problem.
Techdirt is reporting that Jon Dudas, head of the US Patent Office, is lamenting the continuing quality drop in patent submissions.
Here's an idea: reject them. Eventually, people will get the message.
If you keep accepting them, you'll keep getting more.
Actually, they are for "the little guy" and they do create "petty monopolies".
They were designed to create an environment where an inventor could create something and market it for a set number of years with our government providing protection from competition. In exchange for that, the invention would be free to be copied when the patent expired.
Now, patents are used to BLOCK development. Because you can get a broad patent on ANYTHING, just about EVERYTHING is being patented.
So Company-A is working on a new invention. Company-B hears about the work and rushes out to get a patent on a broad "process" that covers (but does not specify) the invention that Company-A is working on.
Now Company-A owes money to Company-B for an invention that Company-B never produced.
Fuck that. Just have the patent office require a WORKING, PHYSICAL model of the invention PRIOR to accepting the patent application. That's how is used to be.
Of course, this would kill all the software "patents" and "practices" patents and so forth. Which I think is a good thing(tm).
Who the hell thinks it's really getting the attention it deserves? Not me. When 'what is your position on patent reform?' becomes a more important question than what color toilet paper Obama uses, or who wears a flag pin, or what happened on some reality tv show, THEN it's getting the attention it deserves.
The USPTO is broken. It's a system that worked quite well back when the phonograph was considered an expensive laboratory toy that would never be of use on the commercial market.
If only they would go to some kind of system like a social news aggregation site, whose patrons were engineers, scientists etc. and other professions and titles that exclude anyone selling ID as science. Then as a last step before granting the patent it would get sort of peer reviewed. IMO that would stop BS patents and trolls can be stopped by changing requirements of patent holders to something like radio spectrum licenses. If you don't use it, you lose it. If you sue someone with the patent and cannot show that you have done anything with it yourself: automatic jail time.
Redefine non-obvious to exclude anything that is a natural extension of another technology, and anything that is specifically in the public interest. (thinking of MS's patents on using a computer to connect to emergency services over a phone line)
sigh
Support NYCountryLawyer RIAA vs People
Patent comes from the latin patens, meaning "open" (notice our usage of the adverb, "patently": patently absurd, patently obvious). A patent is supposed to be you "opening" your product up so that other people can understand how it works. In return for increasing the greater good (by not making it difficult to reverse engineer) you got a brief monopoly. Using this metric, if something is obvious upon inspection, it doesn't deserve a patent, regardless of how innovative or original it is.
The key difference is that, today, patents are seen as a carrot to promote innovation. As originally conceived, the system assumed (correctly in my opinion) that innovation will always happen, and that what we really needed was a carrot to promote the "opening" of the technology (in the same sense that opensource is open).
"He guided enactment of major patent, trademark, and copyright policy, including the 1999 American Inventors Protection Act and the Digital Millennium Copyright Act."
Most patent attorneys consider him unqualified because he had no previous patent experience prior to becoming head of the USPTO.
"... there is no single "silver bullet" solution..."
There is a fundamental improvement that could be made, however. The U.S. government is as corrupt as 8 years of selling favors to private interests can make it. We could stop the corruption.
Corrupt big companies with little creative ability want to make the patent system as complicated as possible for smaller companies. That's why not enough money is available for the patent office to do its job correctly; the corrupters have been deliberately starving government agencies that prevent corruption. They've been starving the SEC, too.
See Principles for thinking about U.S. government corruption.
More evidence of widespread corruption: It costs more than $1,000,000 of U.S. taxpayer's money to kill each Iraqi, most of whom are very poor. That shows the real purpose of the war is embezzling money from the taxpayer to give it to weapons and war investors.
Notes about the U.S. government-Iraq war: 1) I've liked every Iraqi I've met in the United States. I don't want them killed. (I've never been to Iraq.)
2) There was always violence in Iraq. Supposedly one "justification" for the war was stopping Saddam's violence. Now, however, U.S. taxpayers have caused more violence in a few years than all the violence caused by Saddam Hussein.
3) Notice that prices in the U.S. are rising rapidly. That's because the U.S. government has been printing more money to pay for the theft of taxpayer money that war makes possible.
4) The way to not have enemies is to make relationships. The U.S. government has been doing the opposite of that.
Since before 1953, when the U.S. government overthrew a democratically elected president of Iran, The U.S. government has been killing Muslims and Arabs and destroying their property. For example, the U.S. government has been donating $5 billion each year of taxpayer money to Israelis to be used to buy weapons from U.S. weapons manufacturers. The manufacturers get high profits because Israelis are willing to pay high prices when the money is not theirs.
All patent submissions must be accompanied by a physical prototype. The requirement for a physical device has fallen by the wayside, and reintroducing it would probably eliminate 99% of these silly applications.
Increasing patent fees is not the way forward, as this penalizes the real innovators: the little guys working out of their garage.
Higher Logics: where programming meets science.
But the bar needs to be raised a bit more than "a bit".
I think patents are far too easy to get, for far too little technical contribution in return. Some prerequisites that need to be (re-)introduced:
-Patent must significantly improve the state of the art. Must also be non-obvious (on the latter, the US Supreme court shows some encouraging tendencies - more of that please))
-Patent applications must contain instructions on how to build the item, at a level where an average engineer can do it.
-No patents for things that lack a technical contribution. In particular, no patents on business methods.
Now if Congress fails to fix the above items, I think the USA would be better off completely without a patent system.
C - the footgun of programming languages
Head of USPTO grows some nads and tells his employees to stop approving said applications. After all, he's the head of the USPTO. Isn't it his leadership responsibility to put a stop to this sort of thing?
Be a leader, quit whining and do your job.
I listened to a lecture given by Eben Moglen on the subject of Patents, with emphasis on software. When he came to the subject of undoing the current system, he mentioned what I thought to be an interesting market approach. Professional engineers are currently expected to develop patents on their creations, and are rewarded for their efforts with bonuses, promotions, etc. The suggestion is to ask companies to reward engineers for every patent they overturn in the process of bringing a product to market. With that, there's now equal market incentive to overturn patents as there is to create new ones, and a company is forced to recognize that the patent system that gives them IP is as a whole a barrier to their future.
I'm sure there's holes in that simple proposal, but I'd be interested to see if that idea can be made workable.
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