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Patent Office Admits Truth — Things Are a Disaster
An anonymous reader writes "For years the US Patent and Trademark Office has published data to show how well it and the patent system were running. Under new leadership, the USPTO has begun to publish a dashboard of information, including a new look at questions like how long does it really take to get a final answer on whether you will receive a patent or not? The pat answer was, on the average, about 3 years. But with the new figures, it's obvious that the real number, when you don't play games with how you define a patent application, is six years. The backlog of patents is almost 730K. And the Commerce Department under the Obama administration wants the average down to 20 months. How does this happen? Only if everyone closes their eyes and pretends. It's time to take drastic action, like ending software patents. As it is, by the time companies get a software patent, there's little value to them because, after six years, the industry has already moved on."
The true value of a software patent isn't to protect an invention. It's to have a tool for extorting others. In that sense software patents have a shelf life much longer than six years.
You know, if people would claim only what they've fucking invented on patent applications, that backlog would be much smaller. Way to go, jerkoffs.
Living With a Nerd
Why is the focus on software patents? Doesn't this show that the patent system in general doesn't scale up and needs fixing?
They're under-resourced, but increasing their resources won't solve the social and economic problem caused by the patents they grant on software. A lot of big patent holders are saying that the solution is to increase review standards, but how would that happen? How do you put clear limits on whether something described is sufficiently innovative, or sufficiently useful?
The only simple way to reduce the workload of the patent office is to cut certain fields right out of consideration. Start with software. Making the USPTO more efficient isn't our goal, but it's a happy coincidence that there's a solution to our problem that just so happens to solve a major USPTO problem.
And it's not just the USPTO. The European Patent Office has the same problems.
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I'm just a bit curious here, but have these big companies you are speaking of copied your patented techniques by looking at your product or your patent application, or do you think that they reasonably could have invented them independently?
Excellent, so you're patenting not even software, but mathematics! Can this get even more broken? Of course!
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Are you saying software simply can't be inventive?
Not at all; software can be marvelously non-obvious, novel, inventive, useful, etc.
The problem isn't software per se, it is the software industry, and frankly, it's not really a problem, either.
Patents are intended to promote the progress of the useful arts. This is accomplished by encouraging inventors to invent, disclose, and bring to market, inventions which are useful, novel, and non-obvious, when they would otherwise not have done so, for the least cost in terms of restrictions upon the public. However, we know from history that some inventive activity will occur even in the absence of patents as an enticement. That, then, is our baseline. Whether or not any particular patent system is efficacious can only be measured by whether or not it encourages more invention, disclosure, and bringing to market than would occur if it did not exist (and remembering to take into account that in the absence of a patent, it needn't be the same person to do all three of those things), where the benefit of those things is not outweighed by the cost to society of burdensome monopolies. Likewise, alternative patent systems and reforms to the law may be compared by weighing them against each other in the same manner: the best is the one that produces the most public benefit for the least public cost.
This more or less works fine for many inventive industries. But software is an odd duck.
It seems very likely that the amount of invention, disclosure, and bringing to market that would happen in the field of software in the absence of patents is just as great, or perhaps even greater, than under the current patent system. That is to say, granting patents in this field may actually be harming the progress of this useful art. That's directly contrary to the purpose of patents. After all, there are great incentives to, and low barriers for, the invention of new software, and for bringing them to market. And often the interesting part of software is easy for those skilled in the art to discern without the disclosure requirement. The infamous One-Click patent tells you everything you need to know in the name, for example. Everything beyond that core idea are just implementation details that any PHOSITA can manage.
So why are people -- especially those in the industry -- opposed to software patents? It's not because they don't think software is inventive. It's because they think that the patents are a drag on the industry. That they're pointless at best, and actively harmful at worse. And comparing us to our foreign rivals who lack these patents seems to confirm this.
It isn't inevitable that this has to be so; perhaps someday in the future, natural incentives to inventors in the software field may decrease, and the added artificial incentive of patents may be very useful in keeping things going. But until that happens, we really ought to abolish patents in this field, since they are apparently not able to do their job.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
The patent system is made up of scientists and engineers,
I have seen patents which would call that into serious doubt.
What I find most interesting is that its biggest proponents are people within the software industry itself, but usually not the real innovators.
And how do you judge whether or not they're "real innovators"? Let me guess, by how many patents they've filed?
Are you saying software simply can't be inventive?
Hardly. In fact, the problem seems to be largely that patents are holding back inventions. From the patents which currently exist, there is simply no way for me to avoid infringing on someone's patent and also write any software at all, without an army of patent lawyers to dig through all those patents and tell me what not to write -- a process which would significantly slow innovation, if indeed I could write anything new at all.
As it is, the way large corporations seem to handle this is to file their own patents as fast as they can, so that when (not if) they infringe on someone, there's hopefully enough mutual infringement that they can work out a licensing arrangement. It is, in other words, a sort of software MAD.
What I find truly disgusting is that software patents, unlike copyrights, can be vague enough that I could legitimately invent something, in a cleanroom, without being aware of the patent I'm infringing, and be hit with a patent lawsuit for some mathematical truth I end up using. That's right, it's not just invention, but underlying principles of the universe which are protected here.
And that's a worst-case scenario -- but what if I want to support something for the purposes of interoperability? Consider H.264, and tell me HTML5 video is not innovative. Tell me Firefox is not innovative. But because of the patent issues surrounding H.264, Firefox refuses to support it, and certainly, if they were to implement it themselves -- even if they wrote their own decoder from scratch, without looking at any of the code for the official H.264 decoders -- they'd still be in violation. It's not terribly hard to find similar examples where, only because there weren't sufficient patents (or because companies chose not to enforce them), we have interoperability -- would OpenOffice be where it is today if the Microsoft Office formats were patented?
Stop for a moment and consider what the world would look like if web standards were patented. If HTML, CSS, JavaScript, and so on could only be implemented by those willing to pay a licensing fee to a central authority. If any third-party re-implementation of TCP/IP would likely result in a lawsuit. Would you really want to live in such a world?
Well, you're a patent attorney, so don't answer that. But why should any sane person who is not a patent attorney want to see HTML patented?
So the inventors can be rewarded... really? Do you really think Tim Berners-Lee has received no rewards for his efforts?
That you can't possibly think of something in software that anyone else couldn't have thought of, even given the exact same problem set?
That's sometimes a good idea, but not always. Because Adobe either doesn't have patents on PDF, or doesn't use them, people can send me documents and expect me to be able to read them with any of a half-dozen PDF readers I have, and I can expect to be able to work with them -- chop them up, rearrange them, print them, and so on. Certainly, there are other ways of solving the same problem, such as PostScript, but that doesn't decrease the problem -- if some people can read and write PostScript, and others can read and write PDF, we can't communicate, no matter how "innovative" one of them might be.
Also: Why would you want to force people to reinvent the wheel? One of the largest problems in software today is NIH syndrome, and you want to increase that? Seriously?
The reality is that we d
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