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?

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.

[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: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.

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: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: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.

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

[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

[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

[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]

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

[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

[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.

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.

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

[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: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: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: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).

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.