MSM Noticing That Patent Gridlock Stunts Innovation

trichard tips a column on the editorial page at that most traditional of mainstream media, the Wall Street Journal, arguing the point (obvious to this community for a decade) that the US patent system costs more than the value it delivers. The columnist is L. Gordon Crovitz and here is an excerpt: "New drugs require great specificity to earn a patent, whereas patents are often granted to broad, thus vague, innovations in software, communications, and other technologies. Ironically, the aggregate value of these technology patents is then wiped out through litigation costs. Our patent system [is] a disincentive at a time when we expect software and other technology companies to be the growth engine of the economy. Imagine how much more productive our information-driven economy would be if the patent system lived up to the intention of the Founders, by encouraging progress instead of suppressing it."

Comments

ORLY?

[Anonymous Coward]

we-could-have-told-you-and-did dept is right

Re:ORLY?

[Daniel Phillips]

we-could-have-told-you-and-did dept is right

Most insightful comment ever :-)

MSM?

[Anonymous Coward]

Am I ultra-unhip because I didn't know this was an acronym for "MainStream Media" without having to figure it out?

Re:MSM?

[mcpkaaos]

Considering the first line of the summary says "mainstream media", I think this does in fact mean you are ultra-unhip.

I suggest you get in line right now for the new iPhone and stay there until your hair naturally spikes itself and you sprout a pair of Oakleys.

Re:MSM?

[Mesa MIke]

Don't worry.
Being ultra-unhip is the essence of geekdom.
Hip geeks are just poseurs.

Re:MSM?

[istartedi]

Am I ultra-unhip because I didn't know this was an acronym for "MainStream Media" without having to figure it out?

YYA. SUH. T.

Re:MSM?

[Daniel Weis]

Only on Slashdot would this be considered "Informative". If anything, it's "Insightful". :-p

Re: MSM?

[Anonymous Coward]

I agree that the current patent system is broken. However, I don't think the author of the article has all the correct solutions. For example, the following quote would seem to do away with "prior invention" roadblock to (defense against) patent creation

The proposed law in Congress would have reduced potential damages to the value of the technology, not the full value of the completed product. Another uncertainty would have been reduced by moving to the first-inventor-to-file system, instead of our more ambiguous first-to-invent standard.

As programmers and engineers we can whine about the current patent system but nothing will change until we get knowledgable people through law school and working for the patent office.

Re:MSM?

[TubeSteak]

I suggest you get in line right now for the new iPhone and stay there until your hair naturally spikes itself and you sprout a pair of Oakleys.

I'm holding out for the next iPhone, in the hopes that I'll also sprout a pair of Birkenstocks.

Re:MSM?

[StarkRG]

I really think that's what AC meant by "figure it out" I too had to "figure it out". I kept thinking some branch of Microsoft had suddenly decided to stop wandering around with it's eyes closed. (Which is about as crazy a concept as an oil tycoon saying drilling for oil won't get us out of this mess...)

Re:MSM?

[Anonymous Coward]

Huh? All the cool kids are wearing Vaurnet Sunglasses, last I checked.

Re:MSM?

[snerdy]

Hip geeks are just poseurs.

Orthopedists are poseurs?

Re:MSM?

[Anonymous Coward]

Where I come from, MSM stands for, "Men who have Sex with Men."

Re:MSM?

[Anonymous Coward]

In some gay circles, MSM is: "men seeking men". So gay men noticed that patent gridlock stunts innovation. Fabulous :-)

There's a reason for the gridlock.

[techno-vampire]

From what I understand, patents are not supposed to be granted for ideas, or methods, only for implementations. If this principle were followed, you couldn't patent, let's say, the RSA public key encryption scheme, although you could patent a program that implements it. Patents (in the US, at least) were never intended to cover such things as business methods, algorithms or "doing $FOO with a computer." If we stopped letting people get patents for things that should never have been allowed, and invalidated that type of patent the moment anybody tried to enforce it, the gridlock would go away. If you want to protect your programs, use copyrights; that's what they're for. If you want to protect your business methods, use existing trade secret protections. Use patents to protect things, because that's what they're for.

Re:There's a reason for the gridlock.

[QuantumG]

Actually, patents are supposed to cover methods and apparatus, and they always have.

When you're granted a patent it is supposed to cover *how* something is done. Unfortunately a lot of patents are so broad as to actually cover *what* is being done. These patents should be denied.

Re:There's a reason for the gridlock.

[Anonymous Coward]

Exactly, RSA is a rare example of a software algorithm that merits patent protection, in the sense that it was a genuine technical achievement which might've gone undiscovered for quite some time.

Many of the patents granted nowadays are for "inventions" that would've been commonplace 2-3 years down the road, even if the "inventor" had never filed a claim. The "inventor" just happened to beat everyone else to the punch.

Re:There's a reason for the gridlock.

[hardburn]

The trouble is that software blurs the distinction between a device (patent) and a work (copyright). The distinction used to be easy. If you had a new type of engine, you got a patent. If you wrote a book, you got a copyright. But software is kinda like writing a book (so it should be copyright), yet it is used to build the internals of an infinitely modifiable machine (so it should be patented).

This is going to get worse as home 3d fabrication like RepRap becomes more common. Software is now being used to build a physical object, thus eliminating the patent/copyright distinction. At a TED conference, an MIT professor talked about a fab method they apparently have going in the lab, where computation is done by arranging molecules; in theory, you could compute yourself a new car. Just imagine what that will do to the patent/copyright distinction.

The end result is that a new form of IP will have to be developed that will combine copyright and patents. In the US, this is probably going to take a constitutional amendment, which almost dooms the effort from the start.

Re:There's a reason for the gridlock.

[cpt kangarooski]

I disagree.

The purpose of patents is to incentivize the invention, disclosure, and bringing-to-market of novel, non-obvious inventions which would not have been otherwise. It's not a reward for a job well done, or a particularly tricky bit of inventing. I suspect that Rivest, Shamir, and Adleman would have invented, disclosed, and brought-to-market RSA even if patents were not available to them (which was the case everywhere else in the world, in fact). In fact, this is probably true for the vast majority of inventors in the computer field.

If they're willing to work without that incentive, it is wasteful to grant it to them anyway. It doesn't matter whether the invention was on the cusp of becoming obvious to everyone, it matters whether or not the invention would have come about but-for the possibility of patenting it.

Re:There's a reason for the gridlock.

[cpt kangarooski]

There's really no problem at all. The thing is, there's no requirement that a piece of software be protected only under one legal regime. The regimes do not overlap, but they can each protect different aspects of the same software.

In copyright, there is the idea/expression dichotomy, which results in copyright protecting the implementation of an idea, but not the underlying idea itself. In the case of software, this would mean that all of the algorithms of a program would be uncopyrightable, but the way in which they were written would be copyrightable. So long as you write them a different way (or write them the same way independently, without having copied; or write them the same way due to some functional consideration, such as the dictates of efficiency, of a particular platform, language, etc.) you're fine. For tangible objects there is also the utility doctrine, which prevents the working parts of machines, for example, from being copyrightable.

Patents, OTOH, protect inventions, however they happen to be embodied. So if you invented some bit of functionality, the patent would apply regardless of whether someone copied what you did, or independently came up with it. It would apply whether their code was bit-for-bit the same, or whether they implemented the same invention in a totally different way which still fell under the patent. Of course, if they can achieve the same end result by a different method, then that's not infringing.

So in sum, copyrights are used to prevent people from copying particular bits of source or binaries, but patents are used to prevent people from making identically functioning software, regardless of copying.

Software patents are bad because they're so wasteful, not because they're ill-defined. They're not incentivizing invention, disclosure, and bringing-to-market in the computing field, and are probably hindering it. Since patents are meant to cause more of those things, at the least public cost, the best option for software would be to not offer patents. In the future, we can reexamine the field to see if the natural incentives present are no longer sufficient, and the artificial incentive of patents should be added. But right now, it's a bad idea. Ditto for business methods. That's also such a naturally fertile field that we don't need patents.

Re:There's a reason for the gridlock.

[davester666]

That seems to be how the drug companies are artificially extending their patents by finding new uses for their drugs or patenting the drug with a different coating on it.

Re:There's a reason for the gridlock.

[davester666]

Missed embedding the url correctly:

http://www.cmaj.ca/cgi/content/full/164/9/1331

Re:There's a reason for the gridlock.

[patro]

From what I understand, patents are not supposed to be granted for ideas, or methods, only for implementations.

I think implementations shouldn't be patentable either. Innovation would happen anyway, because companies have to come up with something new in order to be better than the competition. Also, dedicated inventors and scientists would continue to crank out new ideas and inventions, because this is what drives them. It's their life.

So we could abolish the whole system and the costs and litigation associated with it. Technological develoment wouldn't grind to a halt, and it may even be faster without the artificial barriers we set up today. New ideas would spread and get implemented very quickly in several different ways.

The problem is corporations who pull the strings via lobbies would be worse off, so they won't allow this to happen.

Re:There's a reason for the gridlock.

[Anonymous Coward]

You couldn't be more wrong - patents are for the protection of ideas _not_ implementations! Which ideas can be patented is a seperate issue (e.g. that they should not be allowed for algorithms/mathematical formulas etc). Nevertheless, the intention of the patent system is (and should be) to protect innovative ideas/concepts. Actual implementations are covered by copyright, registered designs/ornamental designs. If it is not covered by one of these then there is no inherent value in the implementation other than the man hours it took to put it together. Hence there is nothing to protect since someone reimplementing it will incurr the same cost.

Re:There's a reason for the gridlock.

[Hognoxious]

Innovation would happen anyway, because companies have to come up with something new in order to be better than the competition.

Company X spends 100M developing a new drug. Company Y saves 100M, copies the drug, and uses that money on marketing and undercutting X. Company Y drives X out of business.

Also, dedicated inventors and scientists would continue to crank out new ideas and inventions, because this is what drives them. It's their life.

Presumably these inventors and scientists live in a climate where it's feasible to live outdoors, can photosynthesise food, and their children's feet naturally grow shoes?

Re:There's a reason for the gridlock.

[patro]

Since the ideas and implemenations will be shared instantly there will be no point in a single company spending so much for development. The costs will be shared between hundreds of companies, each doing a part of the job.

The inventors will be employed by these companies.

It's an entirely different model which is hard to grasp with our current mindset. The above is only a guess. I'm sure people will come up with creative ways to adapt to the new situation.

Re:There's a reason for the gridlock.

[ThosLives]

Company X spends 100M developing a new drug. Company Y saves 100M, copies the drug, and uses that money on marketing and undercutting X. Company Y drives X out of business.

This would only happen a few times, because eventually company Y would run out of money because companies Z, Q, R, F, G would also all produce the product. Without new products, all companies will die. Company Y (or Z, etc.) would then choose to develop something new to get an edge on the others or collapse. Most people choose to try to innovate rather than collapse.

Also, you could inherently charge more by saying "we're the company with the brainpower to develop WonderProductXIV - support us to get new stuff (instead of supporting others who just give you the same-old, same-old)."

Fundamentally, patents, copyrights, etc. are all forms of protectionism, which has a somewhat dubious track record over history.

Re:There's a reason for the gridlock.

[Anonymous Coward]

There are millions of avid gardeners just in the US. Gee, maybe stores shouldn't be allowed to charge for food, or at least for the kinds of vegetables and herbs that can be cultivated in a garden. It's a waste because there doesn't need to be financial incentive to bring tomatoes, cucumbers, and spices to the market. People will do it in vast numbers because they love their work, and love the idea of feeding their fellow citizens.

The +5 is because the far-left mods here agree with your POV, not because your post was in any way insightful.

Re:There's a reason for the gridlock.

[pbhj]

From what I understand, patents are not supposed to be granted for ideas, or methods, only for implementations .

You understand wrongly.

Re:There's a reason for the gridlock.

[jedidiah]

Krogers certainly doesn't get a monopoly enforced by the federal government.

What you seem to be advocating in terms of patents is just exactly that:

      Krogers gets to tell me I can't grow my own apricots or blackberries.

The inevitable increase in prices and decline in quality will result.

Krogers shouldn't get an exclusive license on anything because they
have deep fundemental problems with their supply chain and store
operations. IF their products weren't commodities, there would be
"mass piracy" of the stuff they sell.

Because Krogers doesn't get a "patent", I can go to their other 4
competitors in town or just drive up into farm country and undercut
their prices while getting better quality stuff.

As much as I hate Walmart, I am glad that they can improve on the
"methods and procedures" employed by Krogers. Without a free market
in products and "state of the art" ideas, we would be stuck in a
Soviet style consumer experience.

Re:There's a reason for the gridlock.

[retchdog]

If we consider a system whereby we can purportedly increase the commercial output of vegetables by banning the practice of gardening, we would be closer to a valid analogy.

Also: far-left? Please don't drag the ever-tedious left/right distinction in, troll. I have found that someone's technical knowledge and working field (among other things) are a much better predictor for their attitudes toward patents than being (D) or (R). Patents are mostly an orthogonal issue, thankfully, because it's about implementation details.

Re:There's a reason for the gridlock.

[Rich0]

Well, the solution to that is simple enough. Prevent competitors from making the pill with the new coating, but allow them to make the pill with the old coating, or whatever.

I think that is actually how it works, but some unethical companies use various loopholes to tie up competitors in litigation over what is essentially legal activity, and regulators allow the loopholes to remain.

Not all pharma companies actually stoop to these tactics. Some have gone on the record stating that they will only enforce their patents for the original period, and the six-month extension granted for pediatric studies (which is a true quid pro quo - society gets valuable clinical data in children in return for six months of profits for the drug maker).

Re:There's a reason for the gridlock.

[tambo]

If they're willing to work without that incentive, it is wasteful to grant it to them anyway.

Sure it does, because of the disclosure factor. If inventions weren't patentable, tons of effort would be wasted in obscuring inventions to rely on trade secret law. RSA would have been created, but it might not have been published.

Incentivizing public disclosure is fully half of the reason for the patent system. The value there can't be underestimated. The software industry, in particular, engages in way too much cloak-and-dagger nonsense for DRM and bad security efforts.

In fact, this is probably true for the vast majority of inventors in the computer field.

Really? I'd like to assert that in software more than any other field, inventions are usually kept secret through closed-source distribution of compiled binaries. It's easier to reverse-engineer the mechanism of a machine than to decompile and analyze software. Even in pharmaceuticals, the invention is plainly set forth in scientific articles and a mountain of FDA filings.

- David Stein

Re:There's a reason for the gridlock.

[Anonymous Coward]

You do not understand correctly. Patents allow idea protection but you need to have a single implementation developed well enough to disclose its workings to the public. That is why we have such impressive technological leads on other countries, and why we have a relatively open technological community. Copyright is a sad alternative that was designed for art, not software. Trade secret does not have one of the biggest public benefits of patents, namely the incentive to disclose to the public so others can innovate with your idea and don't have to reinvent the wheel every time the want to do something. An increase in trade secret use would be a detriment to innovation, unlike patents.

Re:There's a reason for the gridlock.

[Hognoxious]

Except there's no compulsion for any one company to pay its fair share into the research pool - they could save money by leeching, and as soon as one of them does they'll all start. You're back exactly to the situation I described.

Re:There's a reason for the gridlock.

[Anonymous Coward]

If only drug companies were doing research into such uses and coating more, we would all benefit greatly from it. Rather, it turns out that pharma spends all its money researching new drugs that are likely to get through the patent process easily, because it costs soooo much to develop a new drug.

Because a generic could just sell the same drug without the coating, there is little money in developing new coatings for old drugs, so they ignore the market, largely, even though those coatings could be beneficial to us.

And new uses would be great too, because thats just about as great as discovering a new drug, too bad its less patentable, so the drug companies short change that area of research too.

If only we made patenting easier in those areas, we would see more innovation there and everyone would live a healthier life.

Re:There's a reason for the gridlock.

[tambo]

So in sum, copyrights are used to prevent people from copying particular bits of source or binaries, but patents are used to prevent people from making identically functioning software, regardless of copying.

Your post is a good, concise, and accurate summary of the law.

However, to take this a step further - the problem is that there's a whole lot of divergence between "copyright covers expression; patent covers invention" and "copyright covers an embodiment [e.g., a written piece of software]; patent covers the operative concept embodied in it."

Only in the realm of software is this distinction interpreted this way. Embodiments of machines, chemicals, and industrial processes aren't generally copyrightable. Artistic aspects of them may be copyrightable - the sexy shape of the iPod; the distinctive hue of a particular dye - but it's not a general principle, right?

The madness all started when the software industry needed a way to squelch piracy, and seized on the field of copyright to patch the hole. To this end, the idea of "artistic expression" has been warped to a nonsensical extreme, covering any implementation of software - even if purely functional and utterly non-aesethetic (even if it's an invisible background process!)

And while any source code should be just as copyrightable as other types of writing, it doesn't follow that compiled binaries executing the instructions of the source code somehow inherit the copyright coverage of the source code. Is the "artistic expression" of the source code even apparent from the binary? Isn't it invisible, running in the background? If you learn a principle in a book and then use that principle in your own head, does the author own a copyright on your "derivative" thoughts?

The law of software copyright needs to be fixed, folks. It's pointless to tap the "idea/expression" legal fiction if the "expression" half is paradoxical and absurd.

- David Stein

Re:There's a reason for the gridlock.

[patro]

As I said it was only a guess.

People are very resourceful and they would surely come up with better ways to adapt to the new situation.

I'm sure technological development wouldn't halt. Bright minds would come up with much better solutions for the problem you described if there was a need.

The problem is currently there is no incentive to think in other directions, since we have the current flawed model which serves the interests of big corporations and patent trolls.

This model has to be abolished in order to make way for something better. The big corporations wouldn't let a gradual change to happen, since it's against their interests.

Re:There's a reason for the gridlock.

[DriedClexler]

Yes, case-in-point: Amazon's one-click.

The What: "being able to buy in one click"

It's like patenting: "being able to travel 1000 miles in 2 hours."

Re:There's a reason for the gridlock.

[tambo]

Patents allow idea protection but you need to have a single implementation developed well enough to disclose its workings to the public.

That is completely incorrect.

The relevant standard here is called PHOSITA: the invention must be sufficiently described to permit a "person having ordinary skill in the art" to make and use the invention without undue experimentation.

This requirement pertains to the clarity and completeness of the specification. It is not decided with reference to particular implementations, embodiments, or products. Patents are (correctly) granted every day for inventions that the inventor hasn't even begun to implement.

In short - as long as the examiner can make sense of the invention, and doesn't have any specific objections ("I don't think this part will actually work..."), this requirement is satisfied.

- David Stein

Re:There's a reason for the gridlock.

[techno-vampire]

You couldn't be more wrong - patents are for the protection of ideas _not_ implementations!

You clearly don't know what you're talking about. In order to patent something that can be made (a better kitchen sink, a new device for recording TV shows, or whatever) you have to have a working model. Without that, you can't even apply for a patent, let alone be granted one. Your idea isn't patentable in and of itself. You only have something to patent when you've turned your idea into a physical reality. I think that that right there should be the criterion: a physical reality, because right there, all the stupid IP patents go right out the window.

Re:There's a reason for the gridlock.

[Lodragandraoidh]

The trouble is that software blurs the distinction between a device (patent) and a work (copyright). The distinction used to be easy. If you had a new type of engine, you got a patent. If you wrote a book, you got a copyright. But software is kinda like writing a book (so it should be copyright), yet it is used to build the internals of an infinitely modifiable machine (so it should be patented).

What you are talking about are instructions for the computer processor - and instructions are most certainly not to be confused with bricks. The computer itself is patentable. The instructions should fall under copyright. Just because the computer is reading the instructions, in addition to humans, doesn't mean they're not words in any case.

Keep the KISS principle in mind. Don't make this more difficult than it has to be.

Re:There's a reason for the gridlock.

[PitaBred]

That'd be nice, but there are patents on all kinds of plant genes now, and guess what? The courts have ruled that if an adjacent farmer has some of the modified stuff, and it somehow gets into your field, it's YOUR problem, and you are liable for the infringement of that patent. That's just an end-run around Kroger, but Kroger will buy from whoever is selling, and if that is only a big corporate farm? You've lost your free market.

Re:There's a reason for the gridlock.

[Anonymous Coward]

The purpose of patents is to incentivize the invention, disclosure, and bringing-to-market of novel, non-obvious inventions which would not have been otherwise. It's not a reward for a job well done, or a particularly tricky bit of inventing. I suspect that Rivest, Shamir, and Adleman...

In terms of being novel and non-obvious, it seems to me that there's something of a gap between the RSA algorithm and "one-click shopping".

RSA is a pretty nonobvious mathematical algorithm. Many computer patents are just variations on user interactions with a computer.

Re:There's a reason for the gridlock.

[monxrtr]

And as it is, the currently expensive research costs come from trying to avoid copying the process methods of others, duplicated by every firm. If it can't be patented it's scrapped, or an extra $500 million is spent on making a simple ideas complex enough to qualify for a patent.

Pharmaceutical companies do exactly what Monsanto does; take public domain genetic information and introduce a slight change to completely control use over that public domain genetic information.

People are living in a dream world if they think it really costs $800M to develop a new drug. It only costs $800M to obfuscate and make a simple process complex enough so that others can't copy.

Want proof? When is that last time any pharmaceutical company introduced any product that was not patented, but just being used in a different derivative way than some plant has been used in the public domain for thousands of years? What products don't have any copyrights or patents on them? Only things which can be *monopolized* have research expenses devoted to problems.

And what is up with the pretending of it taking 20 years to recoup costs? Puhlease. Like those costs aren't recuperated in the very first year! What are we too stupid to look at the growing market cap of the pharmaceutical industry companies? We're supposed to pretend they are mom and pop stores that make just enough to pay their bills each year? Their *shit* drugs spam every fucking television station advertising segments 24/7 so much that their advertising is actually killing television as a broadcast medium, as people tune on the low quality content just as much as they tune out the drug industry spam. How much money has been spent on marketing erectile dysfunction drugs versus how much money was spent on research and development of those drugs? And if those drugs were such innovations, why are there 3 or 4 patented versions all competing on sales with each other at the same time?

Re:There's a reason for the gridlock.

[Anonymous Coward]

I believe that copyright laws are only applied to software (and SHOULD apply to software) because it is so easy to copy. Really software is more analogous machinery than a book. Machines use energy to effect changes to physical objects. Software uses energy to effect changes to information. Yes, some programmers say that programs are personal expression protected by free speech, but just because programs are made of language does not mean that they are language. Clearly, a machine is not a book, but if I should design a widget and patent it, should it not also be copyrighted because it is the compiled results of my drawings and written descriptions? In a way, it is also made of language.

I believe the solution is to allow vendors to continue selling copyrighted programs, just as they do now. Others should be allowed to mimic it's functionality, as long as they don't copy the code or mirror the interface. But, a software patent process should be allowed, as long as it includes source code for any patented software. Then at least we would have some way to compare programs and decide if they infringe. That would be a lot better for then the "Black Box" patents we have now.

Re:There's a reason for the gridlock.

[Anonymous Coward]

The problem with software patents is that the following axiom does not hold true: "To obtain a patent, an applicant must provide a written description of the invention in sufficient detail for a person skilled in the art (i.e., the relevant area of technology) to make and use the invention." (from http://en.wikipedia.org/wiki/Patent)

Software patents are so vague and broad that when the above is true, the solutions is obvious, and should not be patentable (Cough..Amazon's 1-click ordering..Cough).

Re:There's a reason for the gridlock.

[naasking]

But software is kinda like writing a book (so it should be copyright), yet it is used to build the internals of an infinitely modifiable machine (so it should be patented).

I don't see the problem. The hardware is patented, the software is copyrighted. Where is the confusion?

Re:There's a reason for the gridlock.

[naasking]

Of course, if they can achieve the same end result by a different method, then that's not infringing.

Not sure that makes sense. A drug company that invents a new drug prevents other companies from producing that same or bio-equivalent drug even using different methods. That would seem to fall under your classification of "achieve the same result by a different method".

Re:There's a reason for the gridlock.

[cpt kangarooski]

I'd agree that disclosure is extremely important. However, I'm not sure that disclosure alone is enough of a reason to grant software patents.

First, because disclosure isn't enough to justify issuing patents. We don't grant patents for non-novel inventions, for example, even if people still have no idea how to practice them.

Second, because in the case of software, even though reverse engineering isn't as easy as it could be, it's far from impossible. Plus, of course, for most software patents, the invention has more to do with the idea than any given implementation. The patents are often so broad, though, as to effectively protect the idea, and not a narrower invention. So even if the details are obscured, competent programmers aren't impaired because the idea to even offer a particular feature usually isn't obscured; in fact, it's used as a selling point. They can figure out a way to implement it themselves.

Third, even if we didn't offer patents for medicines, we'd still require disclosure as part of an FDA approval. While we obviously can't make disclosure a requirement for publishing software, we can make it a condition for getting a copyright on that software! After all, similarly to patents, copyright seeks to have copyrighted works enter the public domain so that the works can be freely copied, altered, distributed, used, etc. As we know, this is hard to do when all that the public can possibly get are closed binaries. So, we require developers to deposit a full copy of their source, along with whatever other supplemental material the Copyright Office might mandate (e.g. notes about how it was compiled, what it runs on, comments, etc.) if they want a copyright. If they don't want to disclose the source, they just don't get a copyright. They're still free to publish the binaries, or whatever. And the source isn't open; like any other copyrighted work, while you might be allowed to read it, you wouldn't be allowed to copy it whilst it is copyrighted. DRM can also be dealt with by legislating that any work which the copyright holder uses, or authorizes the use of, DRM in conjunction with, enters the public domain, and that circumventing DRM is legal (and in fact, so desirable, that some modest federal grants might be issued to encourage this). None of this prevents an author from keeping software totally closed and hidden, or from using DRM, etc., but it does fail to encourage it; encouragement should be reserved only for authors who play by the rules, as it were.

Re:There's a reason for the gridlock.

[cpt kangarooski]

RSA is without a doubt, nonobvious (though it wasn't precisely novel, apparently). Nevertheless, that's not the point. Those just describe the subset of inventions that are patentable. Whether or not patents are granted at all has more to do with whether the inventor needs the incentive of a patent in order to invent, disclose, and bring to market, or whether he would do it regardless. I see no reason to pay someone to do something if they're willing to do it for free. Why then should the government grant a monopoly to an inventor if they don't actually require it? So far, this seems to be the case for software. If it changes in the future, I'm quite happy to revisit the issue. I don't have an ideological stance against software patents, I'm just a pragmatist.

Re:There's a reason for the gridlock.

[cpt kangarooski]

Well, there are a few different genera of patents. Method patents (e.g. a method of turning straw into gold) are what software patents are a subset of. Compositions of matter (e.g. a new chemical with the formula XYZ) are what drugs consist of. Of course, in practice, an invention will often have a number of related inventions that accompany it. For example, if you invent a new drug that cures cancer, you would patent the drug itself, the method for making the drug, and the method for using the drug as a medicine. If someone else finds a method for making the drug by another, better, cheaper means, then that's all well and good, but your patents preclude them from doing so, or from using it medicinally, and their patent precludes you from using the new and improved manufacturing method. The two of you will have to come to an agreement, or else they will have to wait for your patents to run out. This is a fairly common situation, and usually the parties manage to work it out amongst themselves. Plus, patents are sometimes a little broader than they appear, in order to deter someone who would make a trivial change in order to avoid infringing were patents taken too literally. (E.g. to defeat the Compuserve GIF patent, imagine if someone XORed an image with 1, then undid it, and otherwise followed the patent)

So achieving the same result by a different method is fine, so long as the two methods are sufficiently different, and the patent holder hasn't anticipated what you do enough to have some other patent that interferes with your plans.

Re:There's a reason for the gridlock.

[cpt kangarooski]

To this end, the idea of "artistic expression" has been warped to a nonsensical extreme, covering any implementation of software - even if purely functional and utterly non-aesethetic (even if it's an invisible background process!)

Well, if it's too functional, then it's vulnerable to some attacks, such as the merger doctrine, or scenes à faire. But really, there is enough room for some level of creativity in writing code that it's usually not a big deal. Small bits of code -- getting input, modifying strings, etc. -- may not be creative themselves, but the overall piece of software assembled from all of these things very well can be. It's like a book: not one word is copyrightable by itself, but the whole is greater than the sum of its parts.

And while any source code should be just as copyrightable as other types of writing, it doesn't follow that compiled binaries executing the instructions of the source code somehow inherit the copyright coverage of the source code.

They certainly do. At most it is merely a derivative work, and personally I don't think that it's even that. Binaries are just the same as source code, from a copyright perspective, save that the binaries are the functional bits of the source reorganized in a manner that is convenient to the computer. Likewise, if I paint a painting, then scan it in to a computer, the graphic file will not be 100% the same, and will have been changed to be more computer friendly (e.g. composed of pixels, rather than a long list of paint chemicals and where they're located on the canvas with an amazing degree of precision). But it's still the same thing. Of course, that only applies to the part of the binary that originates from the source; other parts from libraries, or whatnot, will inherit those other copyrights instead.

Re:There's a reason for the gridlock.

[cpt kangarooski]

I'm afraid you've misunderstood my position.

First, software inventors would remain free to charge whatever they liked for their labor, and for their products. A lack of software patents would merely mean that they would lack an artificial monopoly over certain functioning parts of their software.

Second, patents are only one economic incentive for software development and publishing. There are plenty of other economic and non-economic incentives that would remain. Look at text editors: some are free, some are sold. There are no significant patents in effect in that field. The text editor I like to use happens to be one of the commercial ones. The developer seems to be doing okay, despite the lack of patents and the competition.

Third, your analogy is severely broken. Patents are an artificial monopoly, just like any other government granted monopoly. Comcast would probably be unwilling to install all the infrastructure necessary to provide cable TV to everyone in your town if they had to face the possibility of Cablevision competing against them in the same town, and vice versa. In an unregulated situation, no one gets cable at all, because the costs to the provider are too great for the meager reward they'd get. In that case, where the market has failed, it may be appropriate for the government to step in and grant a monopoly to one of the providers so that they will finally have the incentive needed to spend on infrastructure. Essentially, it's a bit like a tax, in that the cable provider can demand that all subscribers pay more than the market price for the service they receive (i.e. everyone is overcharged) because there are no lower-priced alternatives for the potential customers to flee to, and so no reduced prices by means of competition. Granting a monopoly like that still wouldn't be a very good idea though. It must be limited in time so that after a few years the provider loses their monopoly but has already installed the infrastructure that is now open to everyone. That allows the government to either 1) take possession of the infrastructure (which would have been part of the deal for granting the monopoly earlier) and allow any provider to use it, or; 2) accept bids for any provider to step in and get a fresh monopoly to maintain and further improve the infrastructure, again funded by overcharging customers with no other options.

The vegetables thing therefore has nothing to do with hobby gardeners; it's about whether some farmer is willing to grow tomatoes even if he has to face competition from other farmers down the road who do the same thing. If the farmer is willing to do it, there is no need for a monopoly to encourage him to do it; he's doing it already! If no one is willing to grow tomatoes, and tomatoes are important enough, only then might a monopoly -- and remember that it's a regressive, use-funded, government granted subsidy -- be appropriate.

Hopefully you may have reconsidered your position. Unless you're on the far-right, and think that the government ought to impose taxes (of a sort) on everyone in order to redistribute the money to the greedy, but powerful few. ;) For software patents, I say, let the market reign, and get rid of patents, which are just a form of government involvement.

Re:There's a reason for the gridlock.

[tambo]

Well, if it's too functional, then it's vulnerable to some attacks, such as the merger doctrine, or scenes à faire.

Have you ever seen a copyrighted piece of software challenged as not copyrightable because it's "too functional," or merely scenes à faire? I've never read of any such instance.

And that's exactly my point: somewhere along the line, the "artistic" requirement of copyright got dumped. In the field of software, copyright doesn't only cover "artistic works"; it covers "works." Right? Isn't that strange?

Small bits of code -- getting input, modifying strings, etc. -- may not be creative themselves, but the overall piece of software assembled from all of these things very well can be.

I think you're interpreting "creative" as conflating "expressive" and "artistic."

The manipulation of strings, the fetching of input - how is this pursuit different from choosing logic gates and interconnecting them to produce a novel circuit? If they're the same, shouldn't electrical engineers be able to get genuine copyright protection for their circuits? Why do they need sui generis protection in the form of mask works?

Binaries are just the same as source code, from a copyright perspective, save that the binaries are the functional bits of the source reorganized in a manner that is convenient to the computer.

I know and agree that that's how the law of copyright currently works. But I believe that it's asinine - an absurd departure from the primary principle of copyright: that it protects "expressive" works.

While generating a binary, a compiler effectively strips out the "aesthetic" aspects of the source code. Comments are dumped; human-readable symbols (e.g., class and method names) are obfuscated; instructions are rearranged or otherwise interpreted by optimizing routines. Internally, the binary doesn't even internally resemble your source code. It just happens to produce the functional result specified in the source code when invoked. All that's left is the functional configuration of machine-readable opcodes.

Let's say you write and compile a binary that performs the Pythagorean theorem. You invoke it with:

ComputePythagorean 3 4

...and it spits back:

5

Fine. Now in reality, you own a copyright on the source code that you wrote to compute the Pythagorean theorem, because it's a "writing." And you own a copyright on the binary that executes it. But what part of the binary or its executing is "aesthetic?" Why is copyright involved here at all?

(Again, I agree that the binary can produce artistic expressions that are inarguably protectible: graphics, sounds, webpage layout, etc. Rather, I'm addressing the other kinds of software that have no aesthetic expression when executed, but are somehow worthy of copyright protection anyway.)

- David Stein

Re:There's a reason for the gridlock.

[cpt kangarooski]

Have you ever seen a copyrighted piece of software challenged as not copyrightable because it's "too functional," or merely scenes à faire? I've never read of any such instance.

Sure. Look at the Altai test in Computer Associates International, Inc. v. Altai, Inc., 982 F2d 693, 702 (2d Cir. 1992). Copyright only protects creative elements of works; elements that must be expressed in a particular way (or where there is only a small set of possible ways) are not creative in nature.

If they're the same, shouldn't electrical engineers be able to get genuine copyright protection for their circuits? Why do they need sui generis protection in the form of mask works?

That would be the utility doctrine. A microchip is would be a sculptural work with inseparable functional elements. So while a piece of software would be protectable in non-chip form, the chips themselves could be freely copied, meaning that someone could then copy the software itself, in any form, so long as it was via copying a chip, and not some other fixation. Cf. pre-1990 copyright in architectural plans. You couldn't necessarily copy the plans, but you could measure a building built according to those plans, and then make your own plans.

But I believe that it's asinine - an absurd departure from the primary principle of copyright: that it protects "expressive" works.

Expressiveness is more about the intent and m.o. of the author, more than how easy it is for the audience to enjoy it. The programmer chose a particular set of instructions from the available universe of instructions, and arranged them in a particular manner that he chose. Compiling it doesn't change that. It's merely like writing a book, then summarizing it, then translating the summary from English to French and then writing it in morse code. It doesn't resemble the original version at a glance, but it is in fact the same thing, or at least a derivative work.

Incidentally, I'm tickled pink at the idea that I'm in the (unusual for me) position of defending the copyrightability of an entire class of works.

Idea vs. implementation?

[tepples]

From what I understand, patents are not supposed to be granted for ideas, or methods, only for implementations.

Every idea is an "implementation" of a more general idea. There are 1. video games, then 2. puzzle video games, then 3. puzzle video games with falling blocks, then 4. puzzle video games with falling blocks that can be rotated, then 5. puzzle video games with falling blocks that can be rotated and line up x-in-a-row of the same color, then 6. puzzle video games with falling blocks that can be rotated and line up x-in-a-row of the same color to eliminate floating blocks. Nintendo has a patent on 6. So where does "idea" stop and "implementation" begin?

Re:Idea vs. implementation?

[Anonymous Coward]

Ideas stop when you build something with them. Otherwise, they're just intellectual exercise.

Re:Idea vs. implementation?

[Anonymous Coward]

Idea = "puzzle video games with falling blocks that can be rotated".

Implementation = Tetris.

Seems pretty obvious to me. Implementation is an instance of an idea.

Re:Idea vs. implementation?

[yorkshiredale]

IANAL, but here's my Rule of Thumb :

1. Patents protect novel ideas

2. Copyright protects actual implementation

So a given implementation that embodies a patented idea is protected by both the patent and its own copyright.

Hence a different implementation may still violate the patent, but will not violate copyright of some other implementation.

The silliness in the patent system has come about because patent offices too often judge 'new' ideas to be 'novel', as opposed to 'obvious to those skilled in the art'.

Re:Idea vs. implementation?

[Anpheus]

This still makes it confusing, if that were the case, then that's copyright. Not a patent.

I think patents need to be brought into Newton's era. You can only patent implementations of mechanisms that perform some physical process. Novel methods of performing some process would be protected, but not the end result.

So you could patent -a- process to produce a particular drug, but not that drug. If someone else goes to the lengths of finding an alternate and viable method of producing a drug, then sorry.

You could also patent -a- process to perform floating point math in a CPU, but not the floating point math itself or the result of any particular operation. If someone else figures out how to do the same thing, meh.

Copyrights should protect creative works, trademarks protect those who engage in trade and patents protect processes.

Copyright = uniqueness of creative work
Trademark = uniqueness of trade identity
Patent = uniqueness of process

Re:Idea vs. implementation?

[epee1221]

IANAL, but here's my Rule of Thumb : 1. Patents protect novel ideas 2. Copyright protects actual implementation

That doesn't work for physical devices (e.g. this CD player next to me is not copyrightable, no matter how many unique features it may have).

Re:Idea vs. implementation?

[yorkshiredale]

this CD player next to me is not copyrightable, no matter how many unique features it may have

I'll bet I get sued for copyright infringement if I make an identical model and try to sell it

Re:Idea vs. implementation?

[Profane MuthaFucka]

Look and feel lawsuit? Didn't they mostly fail about 20 years ago?

Re:Idea vs. implementation?

[Anonymous Coward]

we have something like that in sweden, something we call pattern-protection.

http://translate.google.se/translate?u=http%3A%2F%2Fsv.wikipedia.org%2Fwiki%2FM%25C3%25B6nsterskydd&sl=sv&tl=en&hl=sv&ie=UTF-8

Designs on deck

deck should be tiers in translation

Re:Idea vs. implementation?

[Profane MuthaFucka]

It must be working because that Ikea shit is pretty nifty.

Re:Idea vs. implementation?

[Thanshin]

If someone else goes to the lengths of finding an alternate and viable method of producing a drug, then sorry.

And how do you define "alternate"?

Is an alternate method one that seems exactly like the original but using blessed water so the result is holier.

What about a method that uses a component that you assume to be equal (water) but that your opponent in the patenting sees as different (water with undetectable infinitesimal traces of a nocive element).

Re:Idea vs. implementation?

[Suhas]

> Seems pretty obvious to me. Implementation is an instance of an idea.

Great. Who would have thunk that patents were object oriented.

Re:Idea vs. implementation?

[Anonymous Coward]

iaapa (I Am A Patent Attorney):

In Europe, at least, you can claim in 4 broad categories:
a) product;
b) process;
c) apparatus; and
d) use.

Provided you satisfy novelty and inventive step, have an invention capable of industrial application (construed loosely) and do not fall within one of the exceptions for prohibited subject-matter, you can claim anything for which you have sufficient support in the disclosure of the application.

The key thing is not whether or not it's an *idea* (the invention is the embodiment of the inventive concept), but whether you have the in the application support to enable the notional skilled person to realise and implement the inventive concept. Of course, there's a corollary that says you can't claim more than that to which you are entitled, and if you don't generalise your invention enough, you can only claim a subset of all possible inventions.

NOTE: THE ABOVE DOES NOT CONSTITUTE PROFESSIONAL ADVICE AND IS NOT CONSIDERED PRIVILEGED ATTORNEY-CLIENT COMMUNICATION

Re:Idea vs. implementation?

[Anpheus]

That, like all trademark and copyright cases, is up for the courts to decide.

Re:Idea vs. implementation?

[Klaus_1250]

What about Industrial Design Rights ?

Re:Idea vs. implementation?

[Opportunist]

That's exactly why patents on software should not work.

Re:Idea vs. implementation?

[k_187]

That's why we have design patents. Non-functional elements can't be protected.

Re:Idea vs. implementation?

[homer_s]

Conversely, every 'implementation' is nothing more than an idea. If I try to patent a device that does FOO, the only thing of value in that is the idea to put together the metal,plastic,silicon,etc in a novel way to do FOO. The metal,plastic & silicon always existed and hence have zero value.

The solution to this mess must come from a deeper level than just 'implementation' vs 'idea'.

Re:Idea vs. implementation?

[tambo]

1. Patents protect novel ideas 2. Copyright protects actual implementation

Errr... um... that's not going to work.

Copyright covers artistic works, and is limited to the aesthetic qualities expressed in the work. Works that aren't "artistic" in some way aren't covered at all. Machines, chemicals, industrial processes, etc. - these aren't artistic in any way.

Unfortunately, copyright has been ssttttrrrrreeettttchhhed to cover software products, on the VERY tenuous theory that EVERY act of writing software is an "artistic work." Back in the 1970's and 1980's, the software industry needed to find some basis for stopping people from copying their software, and copyright was chosen to patch the hole. But the logic of this solution is terrible. Sure, many aspects of software are artistic - webpage design, user interface composition, graphics, documentation - but *most* of software design is an attempt to achieve a functional result.

This poorly chosen extension of the law of copyright has resulted in many absurdities. But that's a topic for another day.

- David Stein

Re:Idea vs. implementation?

[Rich0]

I can think of a few flaws with this idea, even though I like some of it:

1. The results with the drug industry would be huge and probably not what is intended. Why have drug patents at all when it costs $500M to fully develop a drug and probably only $1-2M to come up with a new process for making a drug. Drug companies would just sit and wait for somebody else to invent drugs and then find a new way to make them, and there would be no new drugs unless the government did all the work. If you want that then just get rid of the patents so that companies don't waste time just coming up with new ways of manufacturing the same pill.

2. You would STILL have software patents. Early software patents tended to use hardware implementations of an algorithm due to the uncertainty of whether software patents would stick. Somebody would actually invent a machine that would do a quicksort using gears/levers/etc to get a patent on the idea. What a waste of time and it gets us nowhere in terms of reform.

3. Patents are still useful in certain industries and situations. If you're going to make it really easy to get around them you might as well get rid of them, which can actually hamper innovation. Patents have advantages and disadvantages - the goal is to maximize the one and minimize the other. What we don't want to do is toss out the baby with the bath water...

Re:Idea vs. implementation?

[Hognoxious]

Conversely, every 'implementation' is nothing more than an idea.

Depends. Idea covers a range of things, from a pretty detailed concept of how to make w working example of something to a wish that something existed. Patents for the latter are most of the trouble.

Re:Idea vs. implementation?

[monxrtr]

Drug companies would just sit and wait for somebody else to invent drugs and then find a new way to make them, and there would be no new drugs unless the government did all the work.

Wrong. Why do drug companies develop drugs in the first place? Because a population has a demand for a cure or alleviation to an illness. Drug companies can function perfectly as a service industry by selling their expertise to develop new drugs. Or do you think drug companies are working on methods to prevent finger nail growth disease? The obscene drug prices and profit these companies get front front running on people with disease is outrageous. They also recycle prior art with impunity into their methods and patent claims. They won't pursue any type of cure that cannot be patented (hence the high research costs to find something that not only works, but works in a way that doesn't violate any 1 of another million patent infringing processes). Drug company propaganda is right up there with RIAA propaganda.

Patents are still useful in certain industries and situations. If you're going to make it really easy to get around them you might as well get rid of them, which can actually hamper innovation. Patents have advantages and disadvantages - the goal is to maximize the one and minimize the other. What we don't want to do is toss out the baby with the bath water...

Patents only have disadvantages for society as a whole. They only have advantages for an extremely few number who benefit at the expense of the rest of society (and also make the wealth pie area of the rest of society fall by much more than the few benefit). Patents just allow for the massively inefficient construction of hangers on industries; drug company management, lawyers, government. It doesn't effect in the least the few brilliant scientists who are devoted to solving problems, and patents only get in the way of those people.

Re:Idea vs. implementation?

[Mattsson]

So where does "idea" stop and "implementation" begin?

"video games" is an idea.
A video game is an implementation of that idea.

"puzzle video games with falling blocks that can be rotated and line up x-in-a-row of the same color to eliminate floating blocks" is an idea.

A puzzle video game with falling blocks that can be rotated and line up x-in-a-row of the same color to eliminate floating blocks is an implementation of that idea.

"allowing people to buy things from a webshop with a single mouse click" is an idea

A webshop where people can buy things with a single mouse click is an implementation of that idea

Get the picture?
You wouldn't be allowed to patent the idea of a one click webshop, but you would be allowed to patent a certain implementation of that idea.
Anyone else would be allowed to make their own implementation of the same idea, as long as their implementation isn't identical to yours.

Re:Idea vs. implementation?

[Mattsson]

Exactly.
Software is basically text and should fall under copyright.

You can not patent a book.
You can not patent a song.
You can not patent a movie.
You should not be able to patent software.

Re:Idea vs. implementation?

[glyph42]

But what do you patent? The thing you built? Someone else could build nearly the same thing without paying any royalties. The issue lies in how you define "nearly the same". Should it be the same on the quantum level? On a macroscopic level? The same components in the same relative configuration? In software, should it be the same machine code? The same source code? A logically equivalent algorithm? A similar user experience? This needs to be defined or you have nothing.

Re:Idea vs. implementation?

[monxrtr]

You wouldn't be allowed to patent the idea of a one click webshop, but you would be allowed to patent a certain implementation of that idea.
Anyone else would be allowed to make their own implementation of the same idea, as long as their implementation isn't identical to yours.

Wrong. You forgot the phrase "non-obvious". And that's exactly the problem. 90% of the patents granted are for *obvious* ideas which anyone with average skill in the discipline can easily duplicate. The patent just prevents competition, allows for monopoly rents, and puts innovation out of business because if you move the slightest bit forward you will be committing the foul from touching the tip of my finger which is a quarter inch away from your eye.

Thus instead of having an operating system that combines the best ideas of Windows, Linux, Mac, etc., consumers pay monopoly prices for some lower quality product, and competition is prevented from ever getting started, eliminating the future innovations all those eliminated competitive firms would have piecemeal produced.

Take 10,000 people on slashdot, and they would put Microsoft out of business in a few years by being able to undercut Microsoft by 80% with a far higher quality operating system. They can't because Microsoft has *thousands* of obvious patents which prevent exactly that competition. We have a broken window fallacy operating system for the majority monopoly subject market which sucks away money which would have otherwise been spent on other stuff (increased productivity) or other research and development (increased innovation).

We need the patent fees to cover paying for people of ordinary skill to attempt to construct the idea claimed to be worthy of a patent, and only if they cannot replicate it, can the idea by given patent protection. Patents were supposed to be for *genius* production eventually benefiting society, not second rate hacks who keep journals of their daily routine work activities who pay lawyers to translate that into obfuscatory legalese to be submitted to the patent office.

See Microsoft with over 5,000 patent applications per year. Microsoft should be charged with fraud and conspiracy for bad faith patent claims, and have their corporate charter to act as a business in the United State revoked upon that business. Also hold the executives guilty with forfeiture of personal civil assets under Sarbanes-Oxley. I encourage EU regulators to do the same in the EU.

If Microsoft wishes to remain in business, perhaps a settlement can be reached with a 15 billion dollar infusion of cash to initially fund the patent office review board of people of average skill replicating all patent claims as submitted with working models. Henceforth, all patent applications must pay the market rate fees of having their inventions obviousness tested by funding a team of people of ordinary average skill duplicating their product. This should relieve the inefficient burdens faced by moron patent examiners.

Or vote for me for district attorney, and I'll charge Microsoft with fraud and conspiracy to defraud the American public by submitting bogus patent claims. Of course, if they wish to fight the charges, I'll back up the dump truck with additional charges. (No, that sound is not your cell phone battery dying, it's the dump truck backing up :P).

Re:Idea vs. implementation?

[Rich0]

Why do drug companies develop drugs in the first place? Because a population has a demand for a cure or alleviation to an illness. Drug companies can function perfectly as a service industry by selling their expertise to develop new drugs. ...
They won't pursue any type of cure that cannot be patented

You do realize that these two statements are contradictions. If a company won't pursue a cure that can't be patented, and you effectively eliminate the patents, then they're not going to pursure any cures at all. I do agree that the industry could live on as a subcontractor to government R&D, and actually I think that this might be the best future for the industry. However, that isn't really what we have today, and I'm not convinced that the best way to get from here to there is to just gut the patent system (even if leaving it in place in a shadow of its current form).

Patents only have disadvantages for society as a whole...It doesn't effect in the least the few brilliant scientists who are devoted to solving problems, and patents only get in the way of those people.

I'm not convinced this is the case. Surely the drug industry as it currently exists would not be doing any of the R&D they are doing if it weren't for patents. The scientists doing the work actually do benefit, since the industry profits are what give them their paychecks. No, they don't get a percentage of the action, but they also aren't asked to give back their paychecks if after 15 years of work they don't personally invent a blockbuster. The companies know that if they employ 1000 scientists they'll probably come up with one blockbuster a year. They know that only one of the scientists will come up with that blockbuster, but they can't predict which so they pay them all well and maybe give the guy who discovers the cure for cancer a $20k bonus. If they could get the scientists to work for free and give the guy who discovers the big drug $20M I'm sure they'd be happy to do that - but most scientists would take steady pay over a chance at a fortune. Those who would rather take the risk start their own biotechs, and when those work out the scientists actually do make out well - due to patents.

Just like a salary, a patent is a risk-mitigation tool. A patent is a contract society makes with an inventor - it says that if you spend a billion dollars and come up with a really great idea, that society will pay you enough to make back the billion and a nice profit on top of that. The only other way to get a billion dollars for R&D is to have government fund the work and tax people for it. The big problem with that is while I can give you a million reasons why the government should be able to do a better job than industry, for whatever reason they seem to get it wrong quite a bit of the time. And if you think that government regulators go easy on industry, just look at how well the government polices itself - if a company had the environmental impact of Hanford there would probably be people in jail.

I think the best solution has a number of components:

1. Maintain the status quo with the drug industry. Don't kill the goose that laid the golden egg. But...

2. Start doing true end-to-end drug development in the NIH, with the resulting drugs being in the public domain. These dirt-cheap drugs would compete with the drugs produced by industry, keeping prices lower. However, if government R&D drops the ball we still have the status quo to fall back on.

3. The NIH should look to outsource R&D to drug companies where it makes sense, but the NIH should maintain the patent rights to the drugs (which will then be free to everybody). This could lead to the transition that you allude to if the NIH is successful.

4. Government should help the indigent with the cost of drugs. The biggest problem with healthcare isn't the costs per se, but how they are borne.

5. Without going into more details the whole healthcare system needs a lo

Re:Idea vs. implementation?

[monxrtr]

You do realize that these two statements are contradictions. If a company won't pursue a cure that can't be patented, and you effectively eliminate the patents, then they're not going to pursure any cures at all. I do agree that the industry could live on as a subcontractor to government R&D, and actually I think that this might be the best future for the industry.

No, I meant drug companies could get patient financed investment the same way musicians could seek payment in advance to produce. Obviously the future expected drug sales profits are going to come from sick patients. If you can transfer payments received after a patent is awarded to before research and development commence, you solve the incentive problem.

Surely the drug industry as it currently exists would not be doing any of the R&D they are doing if it weren't for patents.

That's a real contradiction. The R&D is finished completely before any patents are awarded. Why should the drug company be awarded a single dollar beyond recouping its R&D costs? There's no economic reason whatsoever. They can continue selling their brand name drugs at inflated prices. Profits off name brand blockbuster drugs don't suddenly plummet to zero when the patent ends.

The scientists doing the work actually do benefit, since the industry profits are what give them their paychecks

That's not true. The R&D has 100% been paid for before a patent is issued.

A patent is a contract society makes with an inventor - it says that if you spend a billion dollars and come up with a really great idea, that society will pay you enough to make back the billion and a nice profit on top of that. The only other way to get a billion dollars for R&D is to have government fund the work and tax people for it.

That billion and a nice profit can only come from, be recouped from, one source -- sick patients. You could spend 50 billion on R&D to cure a rare disease that only 100 people in the world have, but you would have to ultimately collect 500 million on average from each person with that disease.

The contracts society have been voided by abuse and corruption, granting of frivolous patents, extension of length of term, even though the term should go do when information spreads faster, and now spreads instantaneously. Society has been unnecessarily obscenely gouged. Payback will be coming to the pharmaceutical industry the same way it is coming back to the music industry, and if you were to poll younger generations, only a small minority of them will feel the slightest bit guilty. A barely visible tsunami of changing public opinion is out in the middle of the ocean heading for shore.

The big problem with that is while I can give you a million reasons why the government should be able to do a better job than industry, for whatever reason they seem to get it wrong quite a bit of the time. And if you think that government regulators go easy on industry, just look at how well the government polices itself - if a company had the environmental impact of Hanford there would probably be people in jail.

Government and business backed by government is the problem. They are attempting to enforce artificial scarcity on the marketplace. That model is *destined* to fail. They will be a huge black market for pharmaceutical drugs just like there's a huge black market for illegal downloads and illegal drugs like cocaine and marijuana. They'd better start making serious negotiated capitulations right now (and instead they are seeking further abuse) or they are going to have their products tainted the way RIAA music is tainted. You think the RIAA takes bad PR hits from suing grandmothers? Wait until the drug industry tries to sue grandmothers who are dying from taking generic street versions of drugs keeping them alive. The drug industry had better get prepared to be seriously undercut from

Re:Idea vs. implementation?

[Mattsson]

My post referred to how things would be if the patent system worked in a sane way.
Today, the patent system is totally insane.

You shouldn't be able to patent any obvious stuff, regardless.
You shouldn't be able to patent any idea, not the obvious ones nor the non-obvious.

The problem is how to determine if something is obvious or not.
Something that's obvious to you might not be it to me and vice versa.

Anyway...
If MS, Apple, IBM, etc, etc, only could patent their implementations, you could go out and legally make an OS implementing all of their best ideas, as long as you do not implement them in the exact same way.
That's what was done with the IBM-PC BIOS in order to make legal clones.
One person looked at IBM's implementation and documented what was being done.
Another person did a completely new implementation of this, which was legal since they only had copied what was being done, not how it was done.
They had copied the idea, not the implementation.

Today, this would probably not be possible. Just look at Apple's ridiculous witchhunt on people making Apple-clones that can run OS X.

Re:Idea vs. implementation?

[Rich0]

Uh, I think you have a lot of misconceptions about how the drug industry works. Either that or you have a very limited definition of R&D. Patents are awarded as soon as a molecue has some activity in an in-vitro assay. At that point maybe a few hundred thousand dollars have been spent on R&D for that molecule. After his point most molecules go through a few more hundred thousand dollars of testing only to be abandoned. The few that make it pasts this go on to clinical trials. A successful drug ends up costing about $500M.

Most of the true innovation happens before the patent is awarded. Most of the cost happens after it is awarded. And when it is all done it might never make it to market.

Sure, you can fund the drug industry through donantions, and it would probably produce as many drugs as a typical non-profit does today.

You paint silly stories of companies suing grandmothers. Of course that won't happen. If the US allows compulsory licensing of drugs or lifts import restrictions to that degree the drug industry will just find something else to do besides discovering drugs. Thousands of scientists will be unemployed, and few will pursue these careers. Public health won't suffer a bit compared to what it is today - it might actualy benefit a little. However, it won't improve nearly as much as it could improve with the status quo.

There are lots of ways to reform the health care industry. Destroying it isn't one of them...

Re:Most traditional mainstream media?

[VoyagerRadio]

You mean you don't agree with everything Walt Mossberg has to say about technology? Particularly, his fanboy reports on Apple products?

The costs of patents

[starseeker]

Businesses spend MASSIVE amounts of money either filing patents for offensive/defensive activities or trying to work around them. I would be very interested to see an accounting of a) what percentage of patents actually result in a license b) what the cost in terms of employee and lawyer time was to create the current body of patent work (plus the fees of course), c) the number of decisions to NOT make a competing product due to patent issues, d) the number of patent cases resulting in a patent being invalidated e) the number of patent cases settled out of court for less than the legal fees to challenge the patent f) (this is complex) the number of patents with BOTH cases settled out of court for less than potential legal fees and with existing patent licenses before the litigation and finally g) the ratio of licenses taken out on a patent to the number of observed workarounds (and patents on the workarounds) done by companies to avoid said patent.

If the ratio of a to b is very small, it would mean that there would have to be MASSIVE returns on license fees to justify the money paid to create patents. Otherwise we the customer are footing the bill for the horse and pony show.

c is hard to document, but every instance where it happens is one less competitor and in a capitalistic system that means less pressure to drive down prices on a product. The idea is of course to offer the patent holder a limited monopoly in exchange for publishing the idea, but the fact remains the customer loses on this deal UNLESS the invention would not have been published/implemented WITHOUT the patent system. Impossible to know I suppose, but food for thought.

Every instance of d is a waste of money in terms of all the effort to get the patent, the time of the patent office working on it, and whoever is forced to fight it. Ouch.

e needs to trigger a close examination of the patent - if the settlement is just to avoid going to court, it must mean that either the company doesn't think they'll make more in a lawsuit even if the patent is valid, the patent holder can't afford a battle either, or the defendant is not going to pay out of pocket just to invalidate a bad patent when its cheaper to settle. In the latter case, it is a waste of economic resources.

f is a possible way to get a handle on how often the first possibility for e happens - if they have successfully licensed it (not cross-licensed as part of a stand-down agreement between big players but actually had someone pay for the right to use it) and still took the lesser fees it might be at least a suggestion there could be validity in the patent.

g is simply a waste. Bright, talented minds try to work out a way around some idea, when they might be working on new features, products or inventions. Sometimes you get new ideas working around patents, but a lot of it is just monumental silliness. The consideration is avoiding the patent, not the best engineering solution.

If somehow all of these costs could be totaled up, I would be very interested to see what the end number would be.

Re:The costs of patents

[Onuma]

If all those dollars were URL hits, someone's wallet would be slashdotted.

Re:The costs of patents

[Chandon Seldon]

c) the number of decisions to NOT make a competing product due to patent issues

This is damage that's basically impossible to measure. Some giant companies probably track the direct decisions, but even then there's no way to measure "bringing products to market in general is dangerous because of unknown patent risks" effects.

Re:The costs of patents

[starseeker]

Agreed. That doesn't mean it's not a cost. I know several of these are difficult/impossible to measure, but the effects are none the less real.

Re:The costs of patents

[Anonymous Coward]

It currently costs about $10K on average for a patent, running all the way up to $25K. We have 7M patents dating back to 1790 or so, and I'm guessing maybe 2M-2.5M are still enforceable. Do the math on how much that costs. Also, while you're at it, figure out how many examiners there are, how many patents get issued per year, and how much each examiner makes on average.

I think approximately 2% of patents are litigated. Don't know how many are licensed.

If you're a small hardware or software startup, you aren't going to have the money to enforce your patents, but that doesn't mean they still don't have value. A Google, Cisco, Microsoft, Pfizer or someone buys you and uses your patents against their competitors.

However, if you don't have patents, Microsoft throws 500 engineers at a problem, hires away your top engineers at any troublesome spot (of which there are many), and you get stuck with some buggy code. The point I'm trying to make is that patents help force an acquisition of your company, rather than getting squished by a big player.

Not every web 2.0 ajaxified method should get a patent - the time to examine and cost relative to the 3 months it will take to test the market just usually isn't there. Patents are more valuable in portfolios surrounding deep technologies, not one hit wonder software gadget patents.

Sometimes you get new ideas while writing a patent, or looking for holes in your patent portfolio, or finding holes in the portfolio of your competitor.

Re:The costs of patents

[Wannabe Code Monkey]

c is hard to document

Tell me about it! My boss is all like, "Why did you write 100 lines of incomprehensible C code without a single comment explaining what's going on?" I'm glad I finally got some backup on this issue.

Re:The costs of patents

[Anonymous Coward]

Businesses don't spend MASSIVE amounts of money for things unless they are worth more than the money spent. So you have proved that patents provide a very substantial value to the patent owners.

Startup businesses find it easier/possible to get capital if they have a patent on an important piece of technology. Startups are often purchased due to the value of their patent portfolio. A world without patents is a world without startups since the big companies have more access to capital and more experience producing products in the cheapest parts of the world.

Re:The costs of patents

[Kirth]

You're absolutely right. But this already has been done.

http://www.researchoninnovation.org/dopatentswork/

Re:The costs of patents

[Anonymous Coward]

You overlook the fact that patents have strategic and marketing value as well as their legal effect. "We have 100 patents in this area" is a good thing to say to investors. Heck, Gillette are even using their number of patents in their tv adverts for their latest razor in the UK. Meanwhile, "We have no patents in this area" can often scare the pants off any of your investors.

Re:The costs of patents

[Anonymous Coward]

"strategic and marketing value" ~= "ways to game the system to make an inferior product more attractive or the only viable product for the customer"

Not saying you're wrong, but producing value in those areas isn't really the point of an economy - the economy's job is to allocate scarce resources in the most efficient manner for the benefit of the society as a whole, via competition of individual players. Any competition on points other than quality of product and cost of product kinda wastes time and resources, in the end.

Re:The costs of patents

[Anonymous Coward]

"So you have proved that patents provide a very substantial value to the patent owners."

Is that in a "helping to utilize resources to produces goods and services" sense or a "helps me get a leg up on somebody else who is otherwise better than me" sense?

As for startups, a big company that is smart will hire the talent that created the idea as well as using the idea, particularly if they can't ever rest on their laurels but need to keep constantly coming up with new and better faster than the competition.

Capitalism is a BRUTAL system - it is designed to seek a point that rewards people just enough and no more for any given thing, including ideas. The idea is to continually move forward and improve, to the benefit of society. Indiviuals in that system may not be so happy, but society as a whole is - finding the balance is the issue. The current system does not seem to be doing its primary job of benefiting society, whatever value it might create for individual players - thus, by definition, it's broken.

Re:The costs of patents

[I'm not really here]

I agree. The effects are very personal to me.

I have 3 very practical inventions that I would like to implement but fear that they are too similar to existing patents (which are not currently being implemented). Should I have to be forced to contact this person and pay them to use their patent because they came up with the idea first? What ever happened to being required to show a working prototype to get a patent? If they had a working prototype and were in preparations to go to market (or even showed interest in going to market), I'd simply wait and buy their product, or (if I still thought mine was better) work out a licensing agreement with them and move forward with my product based off their product. As the system currently stands, these inventions are not being created, and will likely sit on the drawing board until the existing patent lapses. It is very frustrating to be in that position.

Re:The costs of patents

[Hognoxious]

Businesses don't spend MASSIVE amounts of money for things unless they are worth more than the money spent. So you have proved that patents provide a very substantial value to the patent owners.

If I set up a roadblock outside your drive and charge you 100 bucks every time you want to go in or out, that's of substantial value too. At least to me.

However it's a drain on you and probably a drain on the economy as a whole.

Re:The costs of patents

[Lodragandraoidh]

Did they patent the instructions encoded on punch cards for the Jacquard Loom or Hollerith calculating machines? No. Did they patent the machines and methods (e.g. calculators and punched card designs)? Yes.

The idea of patenting computer instructions is a recent idea - and a stupid one. It is just another way to play the system for untoward advantage.

It is simple really:

Instructions should be covered by copyright - period. The various computers and peripherals that these instructions address should be covered by patents.

End of story.

Idiots are destabilizing the system for their own gain by characterizing software algorithms as patentable. There is no precedence for this and no good reason to change the characterization of these works.

Re:The costs of patents

[monxrtr]

http://www.uspto.gov/go/taf/reports.htm

Total Patent Applications in 1991: 177,830, Granted 106,696, 40% Approval Rate
Total Patent Applications in 2006: 452,633, Granted 196,404, 43% Approval Rate
Total Patent Applications in 2007: 484,955, Granted 182,901, 37% Approval Rate

If the average patent costs $10k to file, that represents a budge of almost $5 BILLION for 2007.

Take out 10% of the budget to the general fund.

http://en.wikipedia.org/wiki/USPTO

8,913 employees, of those 5477 are patent examiners, $489,688 per employee, but lets cap the "support staff" at $75K or $258M of the budget, leaving the average patent examiner salary at just a tad under $800K!

I think we definitely need a Congressional Criminal Investigation into the USPTO.

But we can see the $10K *pittance* fees could easily be changed to $100K to bringing the USPTO budget to $50B per year. None of those patent applications would be for "small change" advancements expected to add less than $100K to the economy so its doubtful there would be any effect on the number of applications (or it would be tiny).

Let's say each patent examiner averages 200 days of work per year, each patent examiner is averaging 88 patents reviewed per year, or gives each patent an average attention span of 2 and a third working days.

I'm sure you could also search an estimate for average number of billable lawyer hours spent per patent application. But let's guess it's one month, or 120 hours, billed at $200/hour, or $24,000 per patent (which sounds really low), but that's an additional $11.6B in lawyer fees for fiscal 2007.

So when is the FBI going to start investigating the lawyers the way they investigate mortgage brokers? How come no charges for fraud are filed for any patent applications?

Re:The costs of patents

[monxrtr]

Total Patent Applications in 1991: 177,830, Granted 106,696, 40% Approval Rate

Oops, that's 60% Approval Rate. You can see the the Patent Approval Rate has declined dramatically, yet the number of patent applications continues to surge. This is a sure sign that the price of patent applications is too low. They are corporate lottery tickets for both trolls and businesses producing products actually for sale, and they are also defensive mechanisms used in (anti-trust violation) mutual do not sue agreements (but eliminate small players). There's no way the cost of the lawyers producing the patent applications should be less than the patent application fee paid to the examiners. This is why patent examiners are being bamboozled by obfuscatory legalese language.

This is why the fee should be raised to $100,000. That gives the patent office a tenfold increase to a $50 billion budget to hire enough examiners to *thoroughly* comb through all claims, or hire outside area expertise, such as $10K public domain bounties paid to those who demonstrate prior art by posting patent applications on-line for open source testing, along with bi-lingual lawyer language translators to convert the applications into English. Nobody is going to go through the patent process for truly innovative society enriching ideas that have market value less than $100K. Now if you were to start factoring in the costs of policing, enforcing, and prosecuting patent disputes, that should raise the patent application fee to $1M. Inventors can still demonstrate prior art, sell their ideas directly to corporations, or get private market venture capital financing to pay the price of patenting their ideas. In an a multi-TRILLION dollar economy, 7-figure patent fees aren't anywhere out of line. If the max an idea can produce is less than $10M of GDP economic benefit in today's economy, the idea is small change impractical or obvious *shit* that society doesn't need. The legal implementation and enforcement costs aren't worth the benefit.

Dead On

[JBG667]

Hallelujah! The main purpose of patent and IP law was to promote innovation by ensuring that those who innovate are able to reap sufficient financial benefits commensurate with their invested work. It was to do this IN THE INTEREST OF THE SOCIETY. However, over time, greedy corporations and overzealous lawyer twisted and bent this law to protect interests of individual corporation at the expense of the society at large. This has to be undone.

Re:Dead On

[mjs0]

Well said!

At the end of the day the real test of whether something should be patentable or not should be related to the reason patents were instituted in the first place...to incent investment in R&D by rewarding that investment in innovation. The reward, in the form of artificial protection from competition for a limited time, is enough to ensure the investor(s) profit from the investment. Obvious or not, if a company or individual has invested significant time/money in a program aimed at solving a problem and come up with a new and unique (even if obvious by hindsight) solution they should be rewarded not for the idea, but for the investment, thus incenting investment in innovation.

The fundamental problem with the patent system today is that it has been warped over the years into something it was not intended to be. Remember, the patent system is not something that has to exist; it is something that we as a society agree to have in order to incent individuals and companies to perform activities that are of benefit to society. Patenting of business processes, software patents and incidental patents (my own personal winner for least deserving) are all the result of this move away from the original intention. Combine this shift with the allegations of overworked and wrongly incented employees and the patent system certainly looks broken

There appear to be two basic uses for the patent system that unfortunately are sometimes at odds with each other.

1. Reward investment in deliberate innovation...The benefit to society is clear...by granting a temporary monopoly on an innovation, individuals and companies are incented to invest in areas that would otherwise not have a decent return on investment due to the ease of duplicating any innovation.
2. Retroactively profit from incidental innovation...The benefit to individual companies is clear in the form of profits...however the benefit to the general economy and society is less clear but possibly present in the form of eliminating duplication of effort. A company or individual can retroactively identify innovations (that were not the primary goal of the investment) and patent these in order to license the technology to others. The societal benefit of this activity is significantly lower than (1) and certainly does not require or deserve the massive incentive that a patent delivers in the form of a monopoly on that innovation.

[Aside: When I worked for a large s/w company we were encouraged to regularly trawl through our developed code for potentially patentable algorithms, this is clearly a case of (2) not (1)]

Surely the only useful purpose for a patent system is to incent companies to make investments that would otherwise not have been made. If a company got a clear benefit from an investment and would continue to benefit whether granted a patent or not then there is no point in society (i.e. the rest of us) granting them a patent! What they have is a trade secret that should be protected by other laws (copyright?); it should not be a patentable innovation. Other companies should have the right to make a similar investment to develop a similar solution (or license the technology/solution from the original company if that is agreeable and makes more economic sense)

Today, if a company has a trade secret that they feel they could make money off they typically have to patent the trade secret (even if only defensively) and then license it. This behaviour (licensing developed solutions) should be incented but not using the same system as that which incents investment in innovation.

So how about taking this approach...

• Patents should be returned to their original goal...a way to incent innovation by protecting those innovations that result from deliberate investments in R&D.
• Encourage a parallel system that allows companies to profit from incidental innovations if they have value. A way of facilitating the offering of such incidental innovations as commodities

Re:Dead On

[Anonymous Coward]

The patent system was created in 1790 to promote public disclosure of information, not to incent investment. Throughout the time since 1790 most patents have not been commercialized. Invention is not a synonym for innovation.

Patents do give inventors an opportunity to bargain with investors, but that exchange is (generally) after the patent has issued, and is part of our free market system.

Of the initial theme of the kdawson post, note that the WSJ has been advocating patent reform for years. See for example,

http://ipbiz.blogspot.com/2008/07/counter-to-slashdot-wsj-has-been.html

Re:Dead On

[monxrtr]

The benefit to society is clear...by granting a temporary monopoly on an innovation, individuals and companies are incented to invest in areas that would otherwise not have a decent return on investment due to the ease of duplicating any innovation.

Thus the research and development investment was paid for in its entirety before a patent is granted! Why shouldn't there also be a dollar limit clause on all patent grants? Why should any patent earn $1 past the research and development costs? Isn't the patent rewarded fully if the research and development costs are fully funded? Shouldn't the patent then automatically enter the public domain after sales compensate the costs? Why not incentivize these corporations to commit accounting fraud so we can throw the executives in jail and seize their assets?

Return on investment would be the head start the company gets selling the product before competitors. And it's not like brand name blockbuster drugs sales go to zero after the patents expire.

Re:Dead On

[Anonymous Coward]

Or the Patent system is designed to put a blocker on countries like China making and exporting stuff - so that factories and Jobs stay in America.

However this has failed big time, as vertical and horizontal have gone over - its just too risky making anything in America - you might get sued!

Apart from the lawyer industry, the US is running a net current account deficit with both patents and copyrights (Well the IRS is not getting its chop either). Even the R+D is done offshore.

To fix it - will require an amendment NOT extending anything unless it is made domestically, but not said as blatantly. Trips Plus has so far failed to inspire lawyer driven manufacturing stoppages.

Incidental innovations - well making the thing in USA should qualify. That hat trick can be saved, but at the moment foreigners are queuing to thow money at the patent office for bits of paper - so the pin wont be pulled yet.

Please don't anybody mention SCO

[VoyagerRadio]

(See subject.)

Re:Please don't anybody mention SCO

[Anonymous Coward]

Except the SCO suit was about copyrights, not patents.

Re:Please don't anybody mention SCO

[VoyagerRadio]

Ah, right. Copyright.

YouTube

[Anonymous Coward]

What is needed is some YouTube postings of judges calling a patent lawyer to the carpet:

"In other words, your client is attempting to patent the idea of selling stuff on the web. What do you think we are here, stupid? Incidentally where did you get your law degree from, counsel? Well, maybe they have lower standards than most..."

Just to be clear . . .

[pembo13]

What is the value that it currently delivers?

WTF

[frovingslosh]

MSM Noticing That Patent Gridlock Stunts Innovation

trichard writes tips a column on the editorial page at ... the Wall Street Journal

So the TLA MSM now means WSJ? OMG! WTF!

Re:WTF

[inKubus]

Actually, it's interesting you should mention that, since the same company that owns Fox News owns it now:

From the WSJ wikipedia entry:

As of December 13, 2007, the Wall Street Journal is owned by Rupert Murdoch's News Corp.

On May 2, 2007, News Corp. made an unsolicited takeover bid for Dow Jones, offering US$60 a share for stock that had been selling for US$33 a share. The Bancroft family, which controls more than 60% of the voting power, at first rejected the offer, but later reconsidered its position.

Three months later, on August 1, 2007, News Corp. and Dow Jones entered into a definitive merger agreement. The controversial US$5 billion sale added The Wall Street Journal to the media tycoon's news empire, which already included Fox News Channel, the New York Post, and London's The Times.

On December 13, 2007, shareholders representing more than 60 percent of Dow Jones's voting stock approved the company's acquisition by News Corp.

So they really are mainstream, insofar as Fox News is mainstream. Brachli has left now for the Washington Post, I daresay the WSJ's days are numbered. I wonder if Rupert has been short selling bank stocks since they are trying to start bank runs by putting "BANK RUN?" at the bottom of their cable news channel.

Re:WTF

[TapeCutter]

Not that I would put it past Rupert to do such a thing but the economic problems the US is facing (including the minor bank run at Indymac) are not entirely his fault.

Re:WTF

[Anonymous Coward]

MSM Noticing That Patent Gridlock Stunts Innovation

trichard writes tips a column on the editorial page at ... the Wall Street Journal

So the TLA MSM now means WSJ? OMG! WTF!

MSM = main stream media.

WSJ = individual publication the article is in that is considered part of the main stream media.

What you couldnt figure that out your self? You don't even have to RTFA for it its in the first sentence of the summary.

Re:WTF

[Lodragandraoidh]

I was thinking MSM was some MicroSoft subsidiary; thought they finally came to their senses (or hell had frozen over)...then I read the article. Too good to be true.

Open source it

[Anonymous Coward]

This never would have happened if we just "open sourced" the government.

Re:Open source it

[Anonymous Coward]

Wow. There really is an OSS for everything.

Any attempt to over turn this world draw fire.

[Zombie Ryushu]

Attempting to fix this would draw legislative fire from congress. The Congress vermin get too many "campaign contributions" from these industry monopolies.

Re:Any attempt to over turn this world draw fire.

[tinkertim]

Attempting to fix this would draw legislative fire from congress.

I've been thinking about that too.

For the sake of discussion, lets say that some event happened that forbade patenting the 'method of' anything.

What happens then? There are so many highly ambiguous patents already issued which companies paid between $10,000 and $25,000 to obtain, not counting the costs of litigation.

Would those just instantly become null and void? I doubt it unless the government bought them all back under the idea of eminent domain (as patents are considered to be property). What would be the compensation? Each one will be argued to be worth millions and a company asset. I can hear the argument now .. 'if you take our patents you seriously devalue our company'.

It would be a happy day to hear that the madness will end, but the next day would bring litigation as usual. I don't think we'll hear the end of these things until they stop issuing them and all that are issued have expired.

A lot could happen in that time.

Maybe I'm wrong, perhaps the patent office would review every single software patent and begin invalidating bogus ones.. but the lawsuits that follow would tie that up for years.

I think if anything we'll see that they can take your house to build a highway .. but they have incredible difficulties taking your patent to unplug innovation.

All in the name of progress.

No.

[Anonymous Coward]

The summary should have used a more descriptive term like "drive-by media."

Re:No.

[pfleming]

Only ditto heads know what you mean by that.
(Or those of us who aren't ditto heads but are subjected to listening to someone else's radio turned up too loud.)

800 generic drugs backlogged at the FDA

[DrHanser]

From here:

I mentioned the Hatch-Waxman Act (PDF), which was passed in 1984. The Act was supposed to speed up the adoption of generic drugs when the patents behind name-brand drugs ran out. This happened at first, but as pharmacy has expanded, the Act has created a bottleneck at the FDA. It is speculated that the bottleneck is Big Pharma itself: creative lobbying seems to have resulted in a reduction in the budget for the Office of Generic Drugs -- which in turn has limited its capacity to approve generic drugs to some 400 per year.

Unfortunately, I can't seem to find which drugs' patents will expire without a generic equivalent to take its place -- I suspect that none of them are massively profitable by themselves -- but all told, the market value of these 800 drugs is a whopping $78 billion per year for their manufacturers. For comparison, the entire generic drug industry is only worth just over $22 billion -- even though it accounts for over half the prescriptions dispensed each year in the United States. Broken down, that's almost $100 million per drug...

Staggering numbers.

Can software patents be abolished any more?

[starseeker]

Considering the massive economic resources that have been invested by big players filing software patents, is there any politically workable way to change the law and make software unpatentable again? It would be (in the eyes of patent holders at least) the same as throwing all the money invested straight out the window. Although this may be (practically speaking) what happens anyway as far as the economy (us) are concerned via paying lawyers to fight, those benefiting from the fighting and having committed the $$ may be a hard sell. Not to mention the difficulties involved in crushing those annoying upstart competitors without having patents to wave around.

The ray of hope for real change may be (oddly enough) the patent trolls and their parasitic activities hurting EVERYONE else, but will they be enough to turn the tide?

Re:Can software patents be abolished any more?

[Daniel Phillips]

is there any politically workable way to change the law and make software unpatentable again? It would be (in the eyes of patent holders at least) the same as throwing all the money invested straight out the window.

And they should have known better instead of being enthusiastically part of the problem. What is the best thing about hitting yourself on the head with a hammer again?

Re:Can software patents be abolished any more?

[epee1221]

is there any politically workable way to change the law and make software unpatentable again?

I've heard it suggested that SCOTUS might overturn software patents on the whole, but for that to happen, someone would have to bring a case up that high and challenge the patentability of software.

Re:Can software patents be abolished any more?

[Therefore I am]

Change the law on this patent foolishness, but do it kindly. Wait until a Euro buys about 8 - 10 US dollars and then do it. The Spivs behind all this will hardly notice the extra pain!

Re:Can software patents be abolished any more?

[stremo]

Simple solution: grant software patents but only for three years. The original motivation for 17 years was that it gave the innovator time to profit from his investment but also allowed innovations to diffuse quickly. Three years is plenty for software businesses to profit (if you haven't made money on a patent after three years, you aren't going to except by trolling).

Re:Can software patents be abolished any more?

[williamhb]

Practically it is very difficult to prevent software patents, because as soon as they are outlawed, the applicants just rephrase their patents in terms of a device. A device that happens to contain a chip and some software, but a device nonetheless. (And if devices are forbidden from containing software, there'll just be a quick boom in the "compile to hardware" business.) The device workaround is generally what's happened in the EU, according to a few friends in the patent area. Essentially, it means that so long as a device containing software can [I]infringe[/I] a patent, software is effectively patentable. (And that would be very hard to change -- otherwise non-software patents could be made useless just by jimmying a chip and a few lines of software somewhere into the infringing device.)

Re:THE JEWS DID IT

[willyhill]

More information about these troll accounts can be found here.

What GP was getting at

[Anonymous Coward]

idea = Tetris
implementation = #include <stdlib.h> ...

Patents generate great value

[EmbeddedJanitor]

Just ask the USPTO and patent lawyers!

The patent system is run by the USPTO + lawyers primarily for their benefit. They control it and their "experts" will drive any future changes in patent processes. From their perspective it is generating great value and there is very little motivation for change.

USPTO generates a healthy profit for Uncle Sam too. USPTO makes the same on a low quality or a high quality patent. All that matters is volume. Therefore the system favors cranking out many low quality paptents.

Cranking out patents generates good income for lawyers too. But the real money comes in when a patent is contested. This happens mostly when the patents are low quaility. Therefore patent lawyers score more out of low quality patents than high quality patents.

Therefore the whole system is set up to provide better revenue by generating many crap patents. Don't expect the system to change any time soon!

Re:Patents generate great value

[Anonymous Coward]

Not only is the U.S. legal system corrupt, but...

Here's a more general observation than the one in the story: "Imagine how much more productive our economy would be if the political system lived up to the intention of the Founders."

Re:Patents generate great value

[Aceticon]

Internationally, the number of patents issued in a country is often cited as a proxy for Innovation.

Thus there are even political reasons to keep issuing patents to ideas - it means that the US is praised as the most "innovative" country on Earth since more patents are issued in the US than anywhere else.

Re:Patents generate great value

[Kooshman]

To my understanding, the USPTO is entirely aware and quite unhappy with the recent turn of events. For better or worse, it does not have much influence over how the system works, leaving the decisions to the political machinations of others-- ostensibly, well-funded lobbiers and greedy legislators. And the latter hold most of the blame.

You see, the USPTO used to be funded out of the general coffers, leaving the patent fees as a nice little christmas bonus that served mostly to keep people from wasting the PTO's time. Then, our legislators decided that it would make better fiscal sense to let the fees fuel the Office itself rather than shuffling things back and forth. But wait, there's more! The PTO only gets to charge the legislature-set rates, and then its coffers get raided for 10% of their earnings. So now the patent system gets screwed up because our Beloved Congressmen figured out a way to make a bit of money off the deal.

Thus, the PTO has to float itself off of fees-- but can't set the fees to costs, or even hold on to all the money once they've received it. This is why they have to work on a strict quota system; there's no space to make allowances for things like, say, the size of the patent application. A 20-page peanut de-sheller gets the same time as a 200-page biofuels refinery.

Oh, and if the party trying to get the patent appeals a decision? (implicitly, a negative one) That time doesn't get added to the quota. See the problem now? When they have to figure out some giant software patent (or other useless/obvious/previously designed idea), turning it down creates more work that they don't have time for. So the examiners don't have time relative to the size of the claim, nor do they get time allocated for them to go through and fight the appeal when they turn it down. The system naturally leads to allowing exactly the outcome seen here; the Office itself has merely responded to outside pressures and control.

So, if there's anybody who's been most directly screwed with the patent system, it's the PTO (and its stalwart examiners). And it's our fault, because the fundamental, systematic problems came because of greedy, reprehensible legislators riding high on massive voter apathy.

Re:Patents generate great value

[damburger]

In the Soviet Union in the 1950s, sofas kept getting bigger and bigger because furniture factories had their productivity measured by how much wood they used...

Re:Patents generate great value

[Hognoxious]

Ladies and gentlemen, we have a winner!

Re:Patents generate great value

[backbyter]

This post is already at an Insightful 5 score, if I could assign more mod points you'd have a perfect score of 10 for this gem.

Re:Patents generate great value

[MindKata]

"number of patents issued in a country is often cited as a proxy for Innovation" and the earlier post ... "The patent system is run by the USPTO + lawyers primarily for their benefit"

Given these above issues about the people who run the patent system, it points towards a trend, especially when combined with a thought I posted a while ago, which is...
"as we live in a world where some people are determined to control others, then everyone else has no choice. Unfortunately a minority of people, seek power over others and they are obsessed with finding new ways to control other people (for their own gain), but what they fail to realize, is their acts of control create a pressure for change away from their control. The power seekers throughout history have tried to create a bias in their favor, but it never lasts."
(http://slashdot.org/comments.pl?sid=602657&cid=24041459)

The patent system is therefore creating a pressure for change away from their control. They are undermining themselves. It would mean that even if the concept of open development didn't already exist, then given these driving forces above, the pressure for change would likely create something like open development, as patents no longer held so much value. The trends point towards more open development in the future, as the patent system is becoming its own worst enemy. (Somewhat ironic, they are killing their own golden goose so to speak).

It also means that big business is likely to move towards ever more open development in the future.

Also as many businesses are in a trend of moving more towards a service industry, rather than purely a manufacturing industry (as the value is moving towards service), this means that patents on often changing technology are likely to become less important than earning money from services derived from using the technology, which at times is almost given away, (like some kind of 'loss leader' method), simply to get people locked into a particular service. (Games consoles are a good example of this kind of business and a lot of Internet businesses are moving towards this kind of thinking). Even businesses heavily dependent on manufacturing are seeing the additional benefits of earning money from services, to the point for many, where the service becomes the priority.

I suspect for some industries (like biotech) the patent system will remain relevant to their business model, but in a lot of technology companies, the trends point towards ever more open development in the future and the decline of the patent system for many industries.

Re:Patents generate great value

[Z00L00K]

So to improve on the current system the PTO should be required to pay all costs related to a patent dismissed in court.

In that way they would be more careful to grant bad patents.

Re:Patents generate great value

[mavenguy]

While you make some good points I must comment on some of them to give some perspective from my view as a former patent examiner who started back in the 1970s and, after a hiatus, is back on the "other side" as a patent agent.

The essence of my complaint with your comment is the tone that posits the poor, poor PTO against the greedy and corrupt politicians and applicants. While I agree that, at least as that applies thoroughly to the politicians there is plenty of blame to laid at the feet of the self perpetuating PTO management, the so-called permanent bureaucracy, who survive and select their successors from political administration to political adminstration, from Congress to Congress.

The production system, set up in 1960s as "goals" and given real teeth with the introduction of the Performance Appraisal Plan formulated in response to Carter's Civil Service Reform effort assigns an average "expectancy" in each art area against which examiners are measured (anything less than 90% is unsatisfactory; falling below that generates first an oral warning to get it above by three months; failing that a written warning with another thre months; failing that, being fired) the achievement is an average; examiners are not measured on an individual application basis, so an examiner is free to allocate his/her production requirment as he/she sees fit. Obviously if more time is spent on more difficult cases, less time must be spent on other cases, simple or not. Examiners get credit toward their production for each first action on the merits (FOAMs) and each action in the nature of a disposal (allowance, abandonment, examiner's answer for an appeal). Examiner's can write off some time for specified tasks, but all remaining time is "examining time") and is figured in calculating production. And, if the applicant appeals, the examiner writes an examiner's answer to the applciant's appeal brief and gets a disposal count. The case goes up to the board and returns after decision; if reversed or affirmed in part the examiner passed the case to issue but gets no further count; if affirmed it just gets noted and sent to abandoned files (court appeal is possible but that is very rare).

Because measuring things like search adequacy, rejection/allowance judgement are somewhat subjective but metrics sucha s production, workflow standards are objective and that meeting or exceeding the latter contribute to the "good" of reduced pendency management of the patent examining corps has be, at a fundamental level, been based on these metrics. Any issues with quality primarily arise from outside pressure, which management responds with all kinds of initiatives such as "quality review" or "second pair of eyes" but nothing to do with really improving search effectiveness or giving more average time pre case so that the best prior art is likely to have been developed in most of the applications.

Currently outside quality criticism (cat pointer, swinging on swing) have lead to a reject,reject, reject mantra, which has had the effect of lots of crap rejections being cranked out; lots of cases have been pending even longer because lots of non-final rejections comming from newbies who are not finding good art and just keep sending out easily refuted rejections after being goaded by supervisors to get better art and to keep making new (yet still junk) rejections. Management is in a trap of their own making from decades ago and now they can't even dig themselves out of it despite an unprecedented hiring orgy which scoops up lots of low production newbies, many of whom don't last more than two or three years. And, in any case, most managers doen't realize this, and just insist that examiners are lazy, incompetant dolts who (with the rare exception of those promoted into management) can't meet their simple, common-sense demand to just crank out thoroughly search and argued actions in the time allotted, preferably less so as to reach the Office goals for reducing pendency. Although all top civil service managers came from the examanin

Re:Patents generate great value

[OldHawk777]

"we live in a world where some people are determined to control others, then everyone else has no choice. Unfortunately a minority of people, seek power over others and they are obsessed with finding new ways to control other people (for their own gain), but what they fail to realize, is their acts of control create a pressure for change away from their control. The power seekers throughout history have tried to create a bias in their favor, but it never lasts."

Plutocrats are pitiful faux-prophets (or is that for profit) politicians (not civil servants), corporatist (not capitalist), clergy (not local clerics), aristocrats (not mentally and emotionally healthy people) ... we know them by their reach for what is not theirs and by many name titles and names.

        All plutocrats are scurrilous sycophants seeking slavery and subjugation of others by usury, dejure, and/or dogma, because as people they are without human values/honor. All plutocrats are remorseless and unconscionable criminals genetically endowed with an egocentric ethos and highly credible social-skills.

        Until all people seeking careers (government, business, religion...); which provide authority to direct the activities others, are extensively psychologically evaluated for psychopathic criminal tendencies/ethos; Well, I expect, the Hitler, Mao, Stalin, Cheney/Bush, C*O... type lowbrow characters will continue to plague US, EU ....

Re:Patents generate great value

[tambo]

For better or worse, it does not have much influence over how the system works...

It has lots of influence over how the system works - it is the system. There are only three restraining forces on the PTO:

1) Budget constraints (I'll get to this point in a minute);

2) The limitations of its role as an administrative agency (its rules have to be administrative, because substantive rule changes [like "this general class of inventions is or isn't patentable"] are the jurisdiction of Congress); and

3) The text of the law, including the U.S. Constitution, and the international treaties signed by Congress.

There's a whole lot of freedom inside these boundaries. The USPTO has almost complete control over *how* the system runs, even if it can't arbitrarily decide *what* it's supposed to accomplish.

The PTO only gets to charge the legislature-set rates, and then its coffers get raided for 10% of their earnings.

Your information is out of date. Fee diversion at the USPTO has been brought to an end over the last four years.

This is why they have to work on a strict quota system; there's no space to make allowances for things like, say, the size of the patent application.

This is a serious problem - one of many arising from the asinine productivity requirements set for examiners by USPTO management. There are MANY problems with that system... but the effects are sufficiently downstream that blame can (and usually is) shifted to applicants, Congress, blah blah blah.

The system naturally leads to allowing exactly the outcome seen here; the Office itself has merely responded to outside pressures and control.

Which outcome do you mean? Yes, the examiner is being time-constrained from a more effective examination (by the PTO's productivity rules.) But examiners are ALSO being pressured by their supervisors ("SPEs") from issuing these applications - particularly in some groups (*cough* software.)

The result is churn: applications that are kicked around from examiner to examiner, where no one can come up with an effective basis for rejection but no one is allowed to issue it. Churn is bad for *everyone* - the applicant, the examiners, the USPTO, and the industry in general. And there's a whole lot of churn at the USPTO.

And it's our fault, because the fundamental, systematic problems came because of greedy, reprehensible legislators riding high on massive voter apathy.

Sad... your post was otherwise sound and logical... did you *have* to cap it with this bit of pandering to the /. crowd?

Congress has almost nothing to do with the state of the USPTO. They rarely amend the patent act, and when they do, it's with small changes. Several "patent reform acts" (of varying quality, but all under-informed) have been kicked around within Congressional subcommittees, but none has received traction. And the one area that Congress controls - budgeting - has been resolved in the USPTO's favor.

The *real* source of the problem is a long chain of ineffective PTO management. People get appointed to manage the PTO not through experience or leadership potential, but as a political favor. If you want to blame a branch of the federal government for that... then how about the one that does the appointing? (hint: it's not Congress.)

- David Stein

Re:Patents generate great value

[Machtyn]

I wouldn't necessarily say it was our fault, even though we did vote the greedy jerks into office. The problem is our choices are between two or three greedy jerks, we really don't have much choice in that. And the ones who might fix the system are squashed by those in power/higher rank or don't have enough money to mount a successful campaign. (And when one does come along with his/her own money sufficient to run a successful campaign, (s)he's accused of trying to buy the office.)

Re:Patents generate great value

[tambo]

The essence of my complaint with your comment is the tone that posits the poor, poor PTO against the greedy and corrupt politicians and applicants.

Yep, that's a common misconception that warps many arguments about the USPTO (here on /., in Congress, and everywhere in between.)

The USPTO is not supposed to be the opponent of the applicant that issues patents only when it is defeated. It is not supposed to be a stopgap, or a dam regulating the rate of innovation.

Rather, the USPTO is supposed to be an impartial body that researches the technology, compares the invention to the prior art, and reaches the right conclusion about whether the application should be issued. Correctly issuing a patent should be just as joyous an occasion for the USPTO as correctly denying a patent.

Unfortunately, many forget that this is its role. These days, that includes USPTO management, which loudly and often proclaims its goal of raising its rates of rejection. Its efforts these days are mostly about giving examiners more power to reject applications, and throwing more arbitrary obstacles in the path of applicants.

Criminal prosecutors are tasked with proving the occurrence of crimes - NOT with increasing the number of people sitting in jail. Those are two very different goals, right? Same with the USPTO... it's lost its focus.

- David Stein

Re:Patents generate great value

[tambo]

Just ask the USPTO and patent lawyers!

*sigh* Any post that begins by conflating the interests of the USPTO and patent lawyers - two completely different groups with orthogonal goals - is difficult to take seriously. But looking past that...

The patent system is run by the USPTO + lawyers primarily for their benefit.

No one at the USPTO is getting rich off of the patent system. It's an administrative agency that sits there and fulfills a task. Government salaries suck with comparison to the public sector.

Um, yes, patent lawyers practice law for the benefit of their firms and their clients. Do you suggest something different? However, patent lawyers have very little control over "the system" - they simply use the system that's put in place by Congress and the courts.

USPTO generates a healthy profit for Uncle Sam too.

This has never been true in the history of patents! Even at the height of fee diversion (i.e., patent office budget surpluses siphoned off by the federal government), the amount of money diverted was a teeny, tiny drop in the bucket of the federal treasury. No, the USPTO basically covers its costs, and that's about it.

Therefore the system favors cranking out many low quality paptents.

Then why is the USPTO almost singularly pursuing a reduction in patenting? Most of the efforts of USPTO management are focused on reducing rates of issuance.

But the real money comes in when a patent is contested. This happens mostly when the patents are low quaility. Therefore patent lawyers score more out of low quality patents than high quality patents.

You're missing a key distinction here. Patent *attorneys* work with the USPTO to get patents to issue. Patent *litigators* fight over patents in court. They're never the same people, and rarely the same firm.

The LAST thing any patent attorney wants for a client is a low-quality patent. If the patent is litigated (again, by another firm) and found to be clearly invalid, that client is never going to hire the patent attorney again.

- David Stein

Re:Patents generate great value

[tambo]

Internationally, the number of patents issued in a country is often cited as a proxy for Innovation.

That would be a pretty silly metric, since in any country - including the U.S. - many (most?) patent applicants are foreign companies.

The rate of patenting in a country is a good measure of the strength of a country's economy, since it relates to the interest of companies in selling their products there. But the USPTO has no control over the strength of the economy - no one will praise a patent office for somehow improving the economy with high rates of application or issuance.

- David Stein

Re:Patents generate great value

[Anonymous Coward]

the number of patents issued in a country is often cited as a proxy for Innovation

That would be a pretty silly metric

I think you don't understand the word 'proxy' as it's used in that sentence.

But the USPTO has no control over the strength of the economy

I retract my previous comment. You don't understand *anything*.

Re:Patents generate great value

[Red Flayer]

USPTO generates a healthy profit for Uncle Sam too. USPTO makes the same on a low quality or a high quality patent. All that matters is volume. Therefore the system favors cranking out many low quality paptents.

What the hell is a paptent? Is it related to a puptent? Or is it more like a papsmear? :)

Seriously, though, the USPTO is not a profit generator. We spend around 1.7 Billion a year to fund the USPTO... although patent (and trademark especially) fees help offset some of the cost of running the USPTO, it is in no way profitable. The USPTO cannot make up for it with volume, to rehash the old joke. This doesn't touch on the purpose of cureacracy, which seems to be to perpetuate itself and make itself grow, but this is separate from the profit motive.

You make a good point about lawyers' profits, but the thing to keep in mind is that the lawyers wouldn't be getting paid if the service they provided didn't result in high profits for the patent-holding companies. In other words, the patent system generates a lot of revenue for patent holders, who then find it worthwhile to dspend a fortune on lawyers to protect their patents or dispute others' patents.

I'm not saying this is a good thing, but it's erroneous to say that the system is set up to provide revenue for the USPTO or lawyers... the system is set up to maximize revenue for people who hold patents... who happen to need the USPTO and lawyers to keep the cash rolling in.

Re:Patents generate great value

[Hognoxious]

Any post that begins by conflating the interests of the USPTO and patent lawyers - two completely different groups with orthogonal goals

How so? Don't they both (directly or indirectly) make more money the more ptents are granted?

Re:Patents generate great value

[tambo]

I think you don't understand the word 'proxy' as it's used in that sentence.

"Proxy" can mean an agent - one who speaks on behalf of another. An executor of a will is a proxy for the deceased.

Based on your acerbic comment, I presume that you're reading "proxy" as "substitute." That's fine, and I could address that sentiment. But you're mis-addressing your vitriol, because the original post was ambiguous. (In fact, it's not even clear which way the original poster intended that comment.)

- David Stein

Re:Patents generate great value

[monxrtr]

that includes USPTO management, which loudly and often proclaims its goal of raising its rates of rejection.

That's what they should do. There has never been a valid patent granted, and there never will be. Raise those rejection rates to as close to as 100% as possible. Raise the fees, dramatically, like adding two zeros to them, to decrease the number of applications. Double the fees each time an additional patent is applied for by the same corporate group in the same year ($100,000, $200,000, $400,000 ...)

You'll never look like a fool rejecting any patent (just like business managers and mutual fund managers chimed "you can't go wrong buying IBM"), but these patent examiners and their management are looking like complete idiots whenever a "one click" patent makes it into a courtroom or the press.

And what happens if the real world businesses stopped anti-trust colluding on agreements not to sue each other and one of them pressed a patent war button (like Yahoo or Google)? The system will collapse, and patent examiners and management will be pulled in front of congress to face the consequences and kiss their public service careers goodbye.

And it is a fact: if you are a patent examiner and not rejecting 100%, you are by definition not doing your job. You don't understand innovation, and how ideas build upon each other. You are missing the ways in which prior art is being recycled into monopoly competition killing (thus, innovation killing) licenses to conduct business (shutting down economic activity to a large degree) merely by obfuscating ideas in the language of garbage legalese. How many times can you stamp a "Reject" stamp per day? Hire me, and I'll have everyone else fired for not being able to stamp "Reject" at a relative pace. It is government work, so let's say 4 per hour (so we have time to say post to slashdot while locating the next application folder), with a two hour lunch, so 4 times 6 is 24 applications reviewed per day.

In real estate the mantra is "location, location, location". The Patent Office mantra should be "Reject, Reject, Reject". Why bother subjecting yourself to reading intentionally obfuscatory legalese garbage? Just reject that "shit", garbage in, garbage out.

Re:Patents generate great value

[tambo]

Don't they both (directly or indirectly) make more money the more ptents are granted?

No.

The USPTO is not profit-driven - it sets its fees to cover its operating costs. It doesn't make a lot of profit. And this is not a cancerous bureaucracy intent on growth - it's actually trying to reduce application filings, and it has embraced its need for more examiners with great reluctance.

Arguably, the goal of a patent attorney is not to get the most issued patents, either. The goal is to get many good patents issued. Filing bad patents that don't hold up in court tends to make clients stop using you.

- David Stein

Re:Patents generate great value

[monxrtr]

although patent (and trademark especially) fees help offset some of the cost of running the USPTO, it is in no way profitable. The USPTO cannot make up for it with volume, to rehash the old joke.

That's because the fees are insanely low. Reduce the fees to a cup of coffee through massive inflation devaluation of the US dollar, and you will be swamped with garbage that wastes your time even if only 1 of every 100 applicants slips under the radar to win the 50M to 1B patent grant lottery from which they can troll and extort. Just Microsoft alone, sends over 5,000 patent applications PER YEAR! Send a message by putting those application in the spam "Rejection" garbage bin.

It's patent application SPAM, plain and simple, afforded by too low application fees. Those figures need to be 6 figures MINIMUM, and preferably 7 figures. It's a complete waste of everybody's time to examine and/or grant a patent on some technology that isn't returning 100s of millions MINIMUM.

Re:Patents generate great value

[Red Flayer]

Great, then you have a situation where only large companies with lots of capital can file patent applications, ensuring that small startups are locked out, or are forced to partner with a huge company in order to ever get a product to market.

Talk about stifling innovation...

Re:Patents generate great value

[monxrtr]

Oh really? When is the last a small startup with less than a million dollars in capitalization produced anything innovative? These "small start up firms" are already capitalized with millions by venture capitalists. What is anybody going to do with a patent they paid $10k for, and now have no money left over to start their business?

It's a *pittance* between $10k and $100k, and a *pittance* between* $100k and $1M. Nobody has time or means to seriously "innovate" without tens of millions if not 100s of millions in venture capital, unless you start calling "method to press computer mouse once" 'innovation', which is the absurdity mire we now find ourselves in. If it's really an "innovation", the fees will pay for themselves.

Go get a bank loan, or a government loan, if you are a lone ranger inventor living in poverty. You should be pissing away your house if you waste peoples time with your patent application spam. If not, then the patent grant rewards more than pay for the fee, many many, too many times over.

Re:Patents generate great value

[mpe]

In the Soviet Union in the 1950s, sofas kept getting bigger and bigger because furniture factories had their productivity measured by how much wood they used...

IIRC there were transistor radios made which had transistors which were not electrically connected. Because the number of components was seen as a metric of how good the radio was. This seems an even better analogy with the USPO.

Re:Patents generate great value

[Hognoxious]

The USPTO is not profit-driven - it sets its fees to cover its operating costs. It doesn't make a lot of profit.

If it started making a loss, I'm sure somebody would be out of the door.

Arguably, the goal of a patent attorney is not to get the most issued patents, either.

The more patents there are, the more litigation there'll be. The more litigation, the more work for lawyers.

Filing bad patents that don't hold up in court tends to make clients stop using you.

There's plenty of others. You'll be telling me next that lawyers put their clients' interests ahead of their own.

Re:Patents generate great value

[Just Some Guy]

In Soviet Russia, sofa lazy-boys you!

Re:Patents generate great value

[tambo]

If it started making a loss, I'm sure somebody would be out of the door.

No, they would just adjust the fees to cover the increased costs. That's what "it sets its fees to cover its operating costs" means.

The more patents there are, the more litigation there'll be. The more litigation, the more work for lawyers.

You're missing the fact that some lawyers file and argue for issuance of the patents, and completely different lawyers fight over them in court. That's the difference between patent attorneys (who spend their days writing and arguing with the USPTO) and patent litigators (who spend their days preparing and trying cases in courtrooms.) They're usually with completely different firms, too.

So you're suggesting that a patent attorney might intentionally write an ambiguous patent application that has to be litigated - wasting his client's money, his relationship with his client, and even his law license - just so that a litigator with another firm might get to try the case.

Doesn't that seem improbable and silly to you?

There's plenty of others.

In fact, there aren't. If you build your practice with expertise in semiconductor fabrication techniques, how many companies in the entire world need your services? A few dozen, maybe.

Patent prosecution firms are usually built around repeat business from a few large clients, with a smattering of smaller companies and sole inventors just to keep things interesting. Steady work from a single big client can provide full-time work for a dozen attorneys for years. Do you really think that's worth risking for a little extra business?

- David Stein

Re:Patents generate great value

[Hognoxious]

No, they would just adjust the fees to cover the increased costs. That's what "it sets its fees to cover its operating costs" means.

Unless they can predict in advance how many applications there'll be thay can't possibly do that.

You're missing the fact that some lawyers file and argue for issuance of the patents, and completely different lawyers fight over them in court.

Don't presume to tell me what I'm missing. I'm sure there are plenty of expert witness and consultancy opportunities.

Doesn't that seem improbable and silly to you?

It might if that was what I'd said. Anybody would think you were a lawyer!

Working in The Feild

[FriedPope]

I'm currently interning with an intellectual properties office for a very large company (international). It takes a lot of legal power to make IP worth keeping around. If you can handle the responsibility, IP should make just about as much income as any other business group selling products. It's all about hunting down opportunities to sell your ideas or sue the pants off the people who have taken them.

Re:Working in The Feild

[Pinky's Brain]

Taken them hWhat about the people who came up with the idea independently?

"intention of the Founders"?

[whitehatlurker]

I thought the intention of the Founders was complete Dominion.

-

Suppression is one of the ways of getting that ...

It Helps Secure Venture Capital

[mosb1000]

If you're starting a new business, having a patent goes a long way toward convincing potential investors to become actual ones.

its very simple to me

[SirSlud]

The patent system is a privilege to encourage publication of invention while granting a limited-term monopoly on licensing that invention.

Like the copyright system, it has been twisted by special interested groups into some kind of right whereby creators of art and technology and knowledge deserve some kind of lifetime monopoly. Throw in companies, works for hires, NDAs, etc and suddenly you have the very thing both systems were founded on to combat: a semi-feudal permenant monopoly on inventions and works of art.

I like to think of it this way - most people think it'd be unfair of somebody to be able to create their own Mickey Mouse merchandise. But certainly, Disney has reaped enough benefit from the original artistic creation, and certainly, if the character is so ingrained into our cultural fabric, it seems asinine to say only one company should be legally granted the permission to re-tell/re-interpret the stories? If the laws many companies sought came into effect, they would have been sued out of existence by their own original creations. That's what limited term means. After awhile, its not your story to tell. With respect to patents, it's the same thing - longer term, wider and more vague claims.

Everyone agrees that inventors/authors should be able to protect their work. It's just that when the terms of that protection get too strong, shrewd capitalists just can't resist, and always work on tipping the legal tables in their favor.

And screw the founding fathers - the acknowledgment that patents and copyright can encourage intellectual and cultural progress pre-date the US by centuries. What has been lost is the concept of balance and compromise. It's a political minefield politically within the context of the American Dream. Somewhere along the line, people started confusing right to private property with right to earn.

Re:its very simple to me

[I'm not really here]

I've always felt that four things were needed to make the patent system work, though they would be very difficult to implement:

• Forced licensing at a predetermined rate after a short period of time, meaning that any competitor only needs wait X years and then can license this patent at X% of the current annual market value on the patent or $X, whichever is greater. (how long and how much is fair though?)
• Shorter patent lives with only one renewal. Once the renewal is up, it should become public domain, and anyone anywhere can copy the patent verbatim to produce the product, driving prices down.
• Limit the number of patents holdable by any one entity or it's agents, and place limitations which would significantly raise the required licensing fees should an agent/employee desire to license their own patent to their employer (to raise the costs significantly for companies attempting to circumvent the patent limit). - oh, and make patents non-transferable, except via inheritance, and even then, all time lines follow from the original patent date.
• Once a product has been placed on the market, if a patent did not exist or was not in the process of being approved by the US Patent Office, then the product becomes public domain, and cannot be patented (ie it becomes a patent in and of itself, but with $0 unlimited licensing).

These options allow for the original intent and purpose of patents - namely to grant a limited monopoly on a certain tangible product or item and to spur development on otherwise unprofitable ventures. If the venture would be profitable without a patent, then because of the limited number of patents allowable, the company would likely go to market without a patent, unafraid of another attempting to patent the same idea. This would also cause more "useless" patents to be formally retired by corporations because they find a more valuable patent is needed, and they currently hold the maximum number of patents for their company.
This would also lower the cost to the US Patent Office since less patents would come through the door, and some patent submissions could even be cancelled before they have been granted, due to a more important patent coming in. This would keep the active patents for each corporation relatively stable, and allow for a better allocation of workforce (patent officer X handles all patents for Corp X, Corp Y, and Corp Z, and handles 20% time on non-corporate patent request). I'm sure there's a dozen holes in this idea that will be found within seconds of my posting it, but the concept has always struck me as sound.

Re:its very simple to me

[SirSlud]

Sounds good to me. You clearly have a much greater grasp on what the intended purpose of patents are than most folks. Although I think point 4 is basically "prior art".

I don't really agree with patent 3 - not because I don't think its a good idea, just because I think its a political non-starter. Limits starts to imply a cap on revenue growth, which is just too radical for anybody to accept. (Myself, I always thought it was stupid that somebody who could make 100 million would not be motivated to do so because he was denied making 200 million, but thats just me.)

Shortening patent terms is of course the thing that just will never happen. The only people with money to influence the rules of the patent system are the people who wish to extend the term. As long as lobbying exists, the terms on patents, copyrights, etc can only lengthen, not shorten.

Re:its very simple to me

[I'm not really here]

Yes, sadly, I know that it is a "dream" set of options... But even so, I think that if just the forced licensing option were implemented (as described in my post) that it would be a great boon to innovation... I'd be able to implement a few projects that I found that appear to be simply patented by a company to stifle competition... since the item is not on the market anywhere, the market value for licensing would be $0, so I would pay whatever the minimum licensing fees are (which I think should be insanely low, perhaps even eliminate the minimum, so if the product is not on the market, the cost to license is $0 until the patent actually has market value). As my product grew in popularity, the original owner of the patent would get their increased cut (market value of said patent would increase), and both profit and innovation would be increased. Seems win-win to me?

Intentions of the Founders

[EmbeddedJanitor]

Like keeping the damn slaves and women in their places!

Times change, values change and so must legal and political systems. Being old and dead does not give you eternal wisdom. When the FoundingFathers postulated on freedom of speach, equality and guns they were not thinking of the inernet/TV, women and blacks, nor automatic weapons.

Re:Intentions of the Founders

[TriggerFin]

When the FoundingFathers postulated on freedom of speach, equality and guns they were not thinking of the inernet/TV, women and blacks, nor automatic weapons.

Wrong, wrong, and wrong.
At least several of the people who put it together intended eguality to mean everyone (well, maybe not women), but slavery was not specifically banned because that would have prevented ratification.
As for the other two, they were meant to apply to whatever was available. In the third instance, specifically, the Second Amendment was meant to apply to whatever weapons were in common military use at the time (hence the one "anti" decision concerning a sawed-off shotgun, which had not seen military use).

Re:Intentions of the Founders

[damburger]

Slavery was not specifically banned because they owned fucking slaves. The idea that the founding fathers were champions of liberty is laughable.

Re:Intentions of the Founders

[jedidiah]

Some of the founding fathers would still be considered radical today.

Yeah, a good half of the nation at that time had their fortunes tied
up in a problematic labor arrangement. Not even all of THOSE people
completely bought into slavery as an institution.

Some people are much better at being COMPLETELY SELFLESS than others.

That doesn't negate what other virtue they may have.

Consider that the next time you avoid something that's only minor inconvenience in comparison.

Re:Intentions of the Founders

[damburger]

I really hope that was an attempt at satire.

'Problematic labor arrangement'!? You make it sound like someone is in an office and lacks promotion prospects. Human beings were owned as fucking property. Try and respect that.

And your excuse for them is that they had their fortunes tied up in it? Is that supposed to make me sympathetic towards them, that their being rich was built on the misery and forced labour of others?

You don't have to be completely selfless to not profit from the enslavement of human beings. You just have to be a human being yourself. And if you claim that we can't judge the founding fathers by modern standards of conduct, then perhaps we shouldn't be using their writings on freedom to judge modern laws...

Re:Intentions of the Founders

[Cajun Hell]

Times change, values change and so must legal and political systems. .. When the FoundingFathers postulated on freedom of speach, equality and guns they were not thinking of the inernet/TV, women and blacks, nor automatic weapons.

And yet they anticipated that they hadn't thought of everything, and covered that case. The constitution describes a process whereby it can be amended, so that public policy can adapt to the times without the government having to break the law.

The founders' biggest failure is that they had too much faith in us. They figured that Americans valuing a democratic process was the one constant they could count on, so having amendments be something we debate and vote on, was reasonable. But it turned out that future Americans would not value democracy, so we adapted to the times by having the government create illegal policies instead of amending the constitution to make the new policies legal.

I would rephrase the GP's comment as "Imagine how much more productive our economy would be if we had the same ideals as the founders."

Re:Intentions of the Founders

[PitaBred]

The belief that blacks are at the same "level" of being human as whites is relatively new since that time. Condemning the founding fathers for what was a societal standard at the time would be like saying that all medieval technology was wrong because they thought the earth was the center of the universe. You judge what you can in the context of how it exists. They understood what it meant to be free, and what kinds of rules it took to enable that. They didn't contemplate freedom of their slaves any more than most farmers contemplate freedom of cattle. Just because THAT part of society back then was wrong does not imply that EVERY part of it was wrong.

Don't let your prejudices get in the way of your thinking abilities.

Re:Intentions of the Founders

[damburger]

Did you even read the entire post, or did your mother drop you on your head when you were a baby? I already addressed your pathetic little argument; if we can't judge them by todays standards why should we judge ourselves by their (clearly outdated) standards.

Yes, they knew what it was to be free. They were also quite happy to deny freedom to women, blacks and people who didn't own any land. The idea that nobody contemplated the freedom of slaves in the late 18th century is utter ignorance. Just because it wasn't contemplated by the soporific social class which you clearly hail from, doesn't mean it wasn't contemplated.

Your stupidity both astounds and disgusts me.

Re:Intentions of the Founders

[PitaBred]

You're saying that because one marble is black, ALL of them must be black. I'm saying that the rest of them are white. There's no reason to throw the baby out with the bathwater. Calling me names because you're incapable of accepting that fact does not make it true. Just because you feel that some of their views were wrong does not mean that all of their views were wrong. But going along with your line of reasoning, all blacks are evil because Omar al-Bashir is evil, right? And he could never have done anything good because he's evil. I'll bet he even kicks puppies for fun, which means all black people kick puppies for fun.

I wonder when the media...

[Jafafa Hots]

...will begin to tackle the problem of IP law stifling innovations in media?

Somehow I'm not holding my breath.

Re:I wonder when the media...

[plasmacutter]

...will begin to tackle the problem of IP law stifling innovations in media?

Somehow I'm not holding my breath.

QUOTED FOR TRUTH

Buzz word bingo

[Anonymous Coward]

I think they just pull random words out of a hat and decide to do a story based upon them. This one time they happened to arrange them in a pattern that happens to make some sense. I think it must be like the Slashdot story selection process as well. Using the MSM abbrev just reeks of sucktude.

The precise text

[symbolset]

"To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries" - U.S. Constitution, Article I, Section 8

If they no longer serve this purpose is it time to abolish copyrights and patents?

Simple...

[Anonymous Coward]

No new software patents allowed. Existing patents will still be enforced, but eventually they will all expire.

Degrees of reification

[jd]

Reification is the process of taking something abstract and making it more concrete. It's a useful concept to use, when talking about implementations versus specifications. Ok, can we specify a level of reification at which something can sensibly be called an implementation? If the answer is yes, then it doesn't matter if you can reify the concept further.ed

Now, what can we say about the abstract? Well, there are (a) generalizations, and (b) there are specifics missing, without which the specification cannot be converted into a narrow set of possible implementations. Abstract data types, for example, say nothing about the language they would be written in, how they are to be implemented, or even what the actual programmatic interface will be.

Let's say we narrow some things down. We've defined implementable data types, we've defined the primary programming language and (if need be) dialect, we've defined a style (eg: procedural vs. functional vs. OO vs. 5th Generation), we've defined at least one target architecture (be that a specific JVM or a specific piece of hardware), we've defined the exposed API and we've defined some means of testing compliance to these requirements in a computable, programmatic fashion.

You now have something you can white-box test. That's close, but I don't think it goes quite far enough. Let's add one more requirement: A sufficiently large range of externally-used functions, internal APIs, data types and invariants are also defined such as to produce a high level of confidence through testing that what has been written is indeed what was designed.

THEN you have something that's as solid as, say, a car. You can always add extras to a car, so that is still "abstract" in some sense, but it's solid enough. You can test the controls within the car, and perform basic observations on things like whether the engine is running, to establish that it is indeed a car and not a pile of scrap. I would argue that software could be considered "implemented enough" once it had reached the same level of solidness and reality as a model of car from the manufacturer.

Counsel had to know this was of questionable value

[D4C5CE]

Considering the massive economic resources that have been invested by big players filing software patents

Gambling should not be rewarded, and much less so by giving the jackpot to every player.

As can be seen e.g. from the article linked here, eminent lawyers, economists and computer scientists left no doubt that the purported foundations for making software patentable were shaky at best.

Software Copyrights is plenty! see Phoenix BIOS

[zQuo]

Copyright should be plenty to protect software. The original IBM PC had a PC BIOS firmware that was the stopping block for creating PC clones.

http://en.wikipedia.org/wiki/Phoenix_Technologies

Phoenix went through an elaborate clean room process to create a non-infringing BIOS implementation that could be proven to be an original work and not a copy. The effort they went through (and all of us benefit!) was probably more expensive than writing the original BIOS. It was worth it as it led to all the PC clones, but consider the effort involved to overcome just a software copyright.

If they had software patents back then, not only would the clones not have been available, but broad patents on all the ideas implemented in the BIOS would have tied up almost all subsequent BIOS type firmware, so that almost no personal computer could have been built at all! Including the Mac, Amiga, etc. Software is an implementation of an idea, and the ideas should not be patented. Software copyrights are about protecting the implementation, and that is plenty of protection.

Founders!?

[Cpt. Fwiffo]

Such a shame that the excerpt speaks of "the Founders".

The Founding Fathers had nothing to do with patents, if wikipedia can be believed.
Patents have been around a long time, and were simply 'blockcopied' by the US.
It's an important piece, but such a (bad) excerpts initially made me feel as if it was a piece of badly-written marketing.... :(
/offtopic

Re:Founders!?

[damburger]

Here was me thinking patents were invented by shapeshifters, and enforced by invisible genetically engineered super soldiers

Bullies

[Joebert]

The patent system was invented by the same people who used to pull our underwear over our heads and take our lunch money.

Matter as software

[vik]

The endgame here is that matter will be software, and software can be physically represented in matter.

With technology advanced to that stage, the only way you are going to be able to enforce patent/copyright is at gunpoint. Why?

Imagine there is an immortality drug or some other life-saving invention patented/copyrighted. You can make it yourself for free but cannot afford the licence. What will you do? Save your life, of course.

Note that in the free world you can make patented things for personal use and research purposes without a licence.

Vik :v)

Re:Matter as software

[Hognoxious]

I don't know about an immortality drug, but I'd sure like some of what you're smoking!

Re:Matter as software

[Lodragandraoidh]

The endgame here is that matter will be software, and software can be physically represented in matter.

It is irritating when people espouse some belief in technology/science that is totally without merit. At the most fundamental level, a computer is merely a special case implementation of a Turing machine (non-infinite). Human readable software code is translated to machine code, and further to microcode that does a few defined activities that involve reading instructions, adding numbers, and writing output. Furthermore data and instructions are not mutually exclusive.

Whatever is presented in 'matter' is the result of those instructions sending low level instructions to interface devices connected to machines designed to perform the given task (laser etching etc).

As a result - why would we patent the instructions? The patents should be for the physical devices that do the work (the computer, the laser etcher etc); the instructions are already covered by copyright.

Another example, suppose I am selling music for player-pianos (both the sheet music and the rolls of per. The music is already copyrighted - should I also patent the instructions on the player piano music roll that drives the piano?

Did they patent the instructions for the Jacquard loom punch cards, or the calculations encoded in Hollerith punch cards? No. Similarly we shouldn't patent instructions for a computer.

Level of detail and innovative step

[Lonewolf666]

Patents should give a significant contribution to the state of the art, in exchange for the temporary monopoly granted to the patent owner. I think you have a patent-worthy "implementation" when your description is

1)detailed enough that someone who knows the field in general can build the item without further instruction. For your example, that would be the average guy with a degree in CS.

2)not obvious in the sense that said average software engineer would come up with it within a few hours when asked for a solution to the problem. If it is likely that people would come up with the solution that fast, it is a routine engineering job, not a "significant contribution to the state of the art".
In this case, I think the full description of Tetris in 6. (barely) qualifies as "not obvious".

Also (and unrelated to your and GP's post), I think it makes sense to limit patents to areas where the innovation actually benefits society as a whole. That is usually not a case if it is merely a method for better marketing - that does not improve the products the customer gets for his money. This brings us to
3) No patents on business methods. Games look questionable to me in that regard... ...not sure if the above should have received a patent.

Overall, the USPTO (and in some cases the courts) have neglected all three of the above items. Which has led the patent system to its current sorry state. On 2) the Supreme Court has introduced somewhat higher standards in 2007, see http://news.zdnet.com/2100-9595_22-6180220.html. But I doubt if that is sufficient to turn the patent system back into a useful institution.

Re:Level of detail and innovative step

[tepples]

In this case, I think the full description of Tetris in 6. (barely) qualifies as "not obvious".

Nit: It wasn't Tetris; it was Dr. Mario and Nintendo's so-called "Tetris 2". The original Tetris doesn't involve color matching and would probably read on only the first four "claims" that I mentioned. In fact, the Dr. Mario patent cites Tetris as prior art.

Patent abuse is the symptom.

[damburger]

Western society is stagnating, badly. I look at leaders like Gordon Brown and George Bush and I see Leonid Brezhnev. Old men, polishing their medals and maintaining an establishment that is dying from the inside out.

Per capita energy consumption has already peaked and gains in efficiency are increasingly marginal (as dictated by the laws of physics). The kind of expansion our elites have made their fortune with is no longer possible, and so they have fallen back on pure rent seeking. They have had to commodify ideas beyond the scope of anything that is reasonable to compensate for our reduced physical capacities as a species, and in doing so they suppress the very innovation we need to get ourselves out of this rut.

Disclosure argument is worthless

[Wildclaw]

Imagine if you couldn't write stories containing lesbians, because that idea was currently copyrighted. Or maybe you could use lesbians unless they behaved in one of many specific ways. For the full list you would have to check the copyright office where all copyrighted ideas are stored, written in a format that is supposed to make the ideas so hard to understand as possible. Also, if you actually check the copyright office you would be more liable to get punished if you wrote something infringing. That is basically how patents works today.

One argument used to argue for patents is that of disclosure. If we don't allow patents, ideas will get lost and disappear forever. There are however problems with this argument. First of all, most ideas are easily copied/replicated by observation. Humans are very good at reverse engineering things. Also, patent documents are usally so badly written from a technical point of view that it is better spent effort to actually reverse engineer it. Not to mention that reading patent documents is discouraged/forbidden by most companies because of the risk of liability. Finally, in the case when it isn't completly obvious by observation, like with certain production processes, such ideas are usually managed by many people and will rarely if ever get lost by obscurity.

The best argument for patents is the same used for copyright. That it provides extra rewards to create intellectual property, funneling more people into the IP industry. However, just as with copyright you have to ask yourself if the price of monopoly is too big a price to pay.

Re:Disclosure argument is worthless

[jefu]

Imagine if you couldn't write stories containing lesbians, because that idea was currently copyrighted. Or maybe you could use lesbians unless they behaved in one of many specific ways.

You don't have to imagine much, there is a company that seems to be trying to do exactly this by patenting plots (or storylines).

Re:Disclosure argument is worthless

[monxrtr]

One argument used to argue for patents is that of disclosure. If we don't allow patents, ideas will get lost and disappear forever. There are however problems with this argument. First of all, most ideas are easily copied/replicated by observation.

Not to mention they will be making ZERO market profit unless they by definition are trading products to others. Still, how many people make their own secret formula brand Coca-Cola in the privacy of their own home? Coca-Cola has been going strong for over a century even though people could, if they wanted to, brew their own Coca-Cola in their own homes. And Coca-Cola wouldn't make any money if they didn't by definition give their products away through trade.

Sorry, but I don't see any lone generational geniuses like Leonardo Da Vinci carrying technological innovation upon his back. And even if there were a couple now and then, they sure as hell aren't the ones reaping rewards from patents granted for their work.

These companies are so cheap, they can't even manage to keep the loyalty of their own employees who created the technological innovations upon which they profit. Some 5-figure lolbonus while management gets millions of options for doing diddly? A few percent of the population of society has somehow imposed its will on the other 95% through deception, abuse, bribery, corruption, and violence. But the times, they are a changing. The RIAA is just a little taste. We've seen how weak they are when they cannot enforce laws against illegal immigration, win a war against disheveled peasant terrorists, and have to run and hide from Ron Paul because they are too terrified to address policy questions with respect and civility. They don't have enough money to enforce IP laws anymore.

I took it to a study

[Anonymous Coward]

I studied this "Patent" problem at length. I ran baseline study after baseline study. I compared and contrasted fully patented systems (like the US at the moment) against fully unpatented countries (Turkey and China as examples) against sparsely patented countries 2-5 year patent terms, 5-7 year copyright terms. Optimal systems come in with the sparsely patented countries. There is enough of an incentive to innovate, but also the 'shit or get off the pot' idea that being granted a right is a limited thing. You get rewards for hard work, but not forever. The American system (the system they want to use to stifle innovation everywhere else) is deeply flawed.

The simultaneous invention problem

[Confuse Ed]

I think I understand the thinking behind having patents - as a way to prevent others from profiting from a patent owner's hard work on researching and implementing a solution to some problem merely by seeing their solution and copying it.

HOWEVER - it seems that many new inventions come about due to the combination of current scientific knowledge, current technology and current problems. This often leads to the same (or very similar) inventions being independantly made by several people across the world without them necessarily 'stealing' the idea from one another, and yet the patent system as currently implemented appears to try and deny all except one of the discovers from using their invention.

A google search for something like 'simultaneous invention' will turn up many articles listing some of the more famous examples such as Calculus (Newton and Leibniz), the car (Daimler and Benz), the telephone and so on.. (e.g. http://www.newyorker.com/reporting/2008/05/12/080512fa_fact_gladwell?currentPage=all or http://german.about.com/library/weekly/aa030501a.htm)

Now on the one hand you could argue that instead of bothering with all this research and risking making an unusable independant discovery you should put all that effort in to searching for and licensing other's patents (which would ultimately lead to stagnation - see Asimov's foundation series)

More likely the solution is either not published when you start the research, or (in the case of programming, much of which is researching and 'inventing' ways for a computer to do some task) you do not think of your solution as an 'invention' that has a patent but rather just 'one obvious (to me) algorithm / UI to crack this sub-problem in creating something to meet my current project's requirements'

Re:The simultaneous invention problem

[Lodragandraoidh]

There is no nuance involved. It is simple really - do you think you should be able to patent your recipe for chicken salad, or a mathematical equation you created to solve a problem?

If you answered no to that question, then you have to say no for patenting instructions for a computer.

Why is that so hard to understand?

Because we can do something doesn't mean we should.

Ars Technica has a good review as well

[SplatMan_DK]

I found this article (actually it is a book review) on Ars Technica to be much better. It is longer, explains some of the problems in detail, and includes an interview with the authors of the book which prompted the Wall Street Jurnal to run the story.

- Jesper

Re:Ars Technica has a good review as well

[SplatMan_DK]

I found this article (actually it is a book review) on Ars Technica to be much better. It is longer, explains some of the problems in detail, and includes an interview with the authors of the book which prompted the Wall Street Jurnal to run the story.

Dont know what happened to the Ars link and my Anchor tag. Here is the full URL: http://arstechnica.com/articles/culture/book-review-7-08.ars

- Jesper

Can anyone beat mine?

[nwcoder]

I've been waiting 4 years now. Patent Publication Document #20040051913 March 18, 2004

Re:Can anyone beat mine?

[Pinky's Brain]

Don't worry by the time they have the technology to make that work your patent will have expired.

Patent the drug as part of a process

[tepples]

So you could patent -a- process to produce a particular drug, but not that drug.

What about patenting a drug as part of the process of reducing illness in a person?

Two ways at least:

[Anonymous Coward]

1) prove the holiness
2) show that holiness affects the outcome

The ORIGINAL reason for patents

[Anonymous Coward]

was to remove the need to use trade secret.

so if you cannot keep it a trade secret because of its very nature (like, say a business process), then you can't get a patent instead.

If you can figure out how to sell someone the business process under trade secret, then feel free.

Re:The ORIGINAL reason for patents

[Rich0]

You can't keep most products as trade secrets - almost any product can be reverse-engineered today for a fraction of the original R&D cost. So, this kind of move would probably get rid of patents altogether. I'm not convinced this is the best solution to the current problems.

Translation: Design patents

[tepples]

we have something like that in sweden, something we call pattern-protection.

The exclusive right described in the linked page appears to match what United States law calls a "design patent".

That's not the purpose of the patent system

[argent]

Not trying to distract you from your main point about simultaneous inventions, but there's a bit of apparent confusion in your opening sentence. Perhaps you understand this point and were merely simplifying, in which case I apologize, but as written this propagates an unfortunate misunderstanding:

I think I understand the thinking behind having patents - as a way to prevent others from profiting from a patent owner's hard work on researching and implementing a solution to some problem merely by seeing their solution and copying it.

The patent system is not there to reward hard work. That's the mechanism it uses, but it's not its purpose.

The purpose of the patent system is to promote innovation. It does this two ways: by creating an incentive to reward innovation, and to ensure the publication of the innovation so that others can build on it. These means are often confused with the end, but it is the end that justifies them... if the goal is no longer met, there's no reason for retaining the mechanisms created to allow its attainment.

O Lord, preserve us from wishful thinkers.

[Hognoxious]

People are very resourceful and they would surely come up with better ways to adapt to the new situation.

You can't wish human nature away. In the absence of compulsion there will always be freeloaders.

Now you could nationalise R&D, fund it by a compulsory levy that companies pay to use the products. Congratulations, you have the current situation except the government is the patent holder and civil servants are deciding what to develop. Wonderful!

I'm sure technological development wouldn't halt. Bright minds would come up with much better solutions for the problem you described if there was a need.

And I believe in fairies.

Re:O Lord, preserve us from wishful thinkers.

[monxrtr]

You can't wish human nature away. In the absence of compulsion there will always be freeloaders.

That's exactly why people don't talk or write posts on message boards. Ever since we removed copyright and patents on letters of the alphabet, conversation has completely dried up, especially on the internet. People got tired of free-loaders who did nothing but read the posts of others without contributing. The internet ended. There was nothing new to ever see everyday like before.

And I believe in fairies.

Well that's obvious.

Yes but...

[Anonymous Coward]

Our patent system [is] a disincentive at a time when we expect software and other technology companies to be the growth engine of the economy. Imagine how much more productive our information-driven economy would be if the patent system lived up to the intention of the Founders, by encouraging progress instead of suppressing it.

On the other hand its a great barrier to entry for new companies that want to enter in a new field. In drugs this is best done through specific patents, in telecoms/sw through vague patents. So the systems serves its intended purpose (Founders? Progress? We're talking about business in the 21st century here)

Re:THE JEWS DID IT

[trimmer]

Hello twitter.