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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
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.
Already done. Usually about half price for the little guys.
We figured out a long time ago that it's easier to elect seven judges than to elect 132 legislators.
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
You've got kids dealing with really high-level stuff in a lot of cases. Optics, physics, biotech. No wonder it's easier for companies to push shitty applications through.
We figured out a long time ago that it's easier to elect seven judges than to elect 132 legislators.
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.
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).
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.
Actually, they should have the sliding scale based on the number of patents you have. Huge corporations would get increasingly more expensive patents. They could mitigate this cost by releasing older, less valuable patents into the public domain. The small inventor would be able to afford the very low cost initial patents. If any of their patents paid off, they could then afford more. If they don't pay off, they could release them into the public domain, and not have to worry that some corporation will patent it behind them, and cut off their idea from the rest of the world.