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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."
we-could-have-told-you-and-did dept is right
Am I ultra-unhip because I didn't know this was an acronym for "MainStream Media" without having to figure it out?
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.
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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?
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.
"I object to doing things that computers can do." -- Olin Shivers, lispers.org
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.
[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...
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.
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.
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