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

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.

[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.

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.

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.