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Interview With 'Idiot' Behind Key Software Patent
An anonymous reader writes "Last week, an appeals court ruling opened the door to making it easier to kill software patents. It turns out that the guy whose name was on the actual patent didn't even realize it was at the center of the debate, and doesn't like software patents very much. 'So I was thinking — great they invalidated software patents, lets see what crappy patent written by an idiot they picked to do it — then I realized the idiot in question was me.'"
It just shows that most people have double standards. When they or someone they know do it, it's all good. When it's someone else, it's the root of evil.
How is he an anonymous reader if his name is in the second sentence of the article?
There are lots of errors and other assorted silliness in the article. For example: "But because the USPTO focuses much more on "prior art" (i.e., "is this new?" rather than, "is this obvious?") all sorts of obvious stuff gets patented."
In fact, obviousness rejections are extremely common. In my experience they are the most common kind of rejection. Moreover, the obviousness analysis is based on prior art. The analysis is basically thiis: would it have been obvious at the time to put these pieces of prior art together in order to create the claimed invention? Requiring prior art evidence of obviousness is important because it helps avoid hindsight bias. Note that the KSR decision made it easier to find things obvious by invoking 'common sense' and 'common creativity,' often with fairly minimal evidence.
"if a patent doesn’t actually tell you enough information to understand and build the invention, it shouldn’t be valid."
This is already a foundational part of patent law. "The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same." 35 USC 112. I would agree, though, that these requirements (called 'enablement' and 'written description'), are not applied rigorously enough by the PTO or the courts. The PTO's policy on software is especially silly. For example, it prefers flowcharts over pseudocode to describe algorithms. Not only is this not very searchable, it's also decades out of date and captures far less detail about an algorithm than pseudocode.
"End the venue shopping for lawsuits"
The Federal Circuit has been clamping down on venue shopping somewhat. I wouldn't say that the Eastern District of Texas's days are numbered quite yet, but litigants are definitely finding it easier to get out of there. See, e.g., In re Genentech, Inc., 566 F. 3d 1338 (Fed. Cir. 2009); In re Microsoft Corp., No. 944 (Fed. Cir. Jan. 5, 2011).
"Expedited review of new and disputed patents by a panel of experts in the field with a high bar for validity"
Who determines who these experts are? And who would review their determinations? A new appellate court of super-experts in every field? Or would it be back to non-experts? The PTO can barely keep itself staffed with non-expert examiners and board of appeals judges, much less actual experts in every field.
Furthermore, the reality is that litigated patents are already reviewed by a panel of experts: the expert witnesses called by the parties.
Either give the USPTO sufficient time/resources to determine if applications are valid, or assume they are invalid until proven in court.
From TFA: "... because the USPTO focuses much more on "prior art" (i.e., "is this new?" rather than, "is this obvious?") all sorts of obvious stuff gets patented."
I couldn't agree more.
Except that both the article author and you don't understand what prior art and legal obviousness are. That prior art exists does not mean that something is not new: prior art is any relevant art in the field that was published or publicly available prior to the filing date. RFC 793 (TCP) is prior art for RFC 2460 (IPv6) because it's in the relevant field (networking protocols, albeit a different layer) and was published earlier.
What you and the article author think prior art means - "is this new" - is actually whether an invention is novel under 35 USC 102. An invention is not new if a single piece of prior art discloses each and every element in the claimed invention.
Obviousness, on the other hand, means that while a single piece of prior art doesn't disclose the whole invention, multiple pieces of prior art can be combined to teach or suggest each and every element of the invention. In other words, if the patent application claims "A+B+C+D" and no one has ever done that before, it's new... but if a prior art "A+B" exists, and prior art "C+D" exists, then it may be obvious to combine those two pieces of prior art to get "A+B+C+D" and the invention is obvious.
Why this is important is because, by misunderstanding that art has to be prior, even for the purposes of obviousness analysis, you're asking the wrong question... Essentially, you're asking whether, in hindsight, the innovation was too trivial or minor to be awarded with a patent. But that's improper - almost everything is obvious in hindsight. That's why the patent office has to rely on prior art to show obviousness - they can't just say, "eh, I think this invention is obvious." Rather, they have to explicitly list the prior art references that can be combined to teach each and every element of the invention. If they can't find one - if, "A+B" exists, and "C" exists, but there's no art for D, then A+B+C+D can't be obvious except in hindsight.
He doesn't actually "own" the patent anymore, he sold it and so it was litigated by the new owner.
OK, so let's trot out the old chestnut of pharmaceutical patents. Let's say I invest $100 million to do the research needed to create a new drug, I create it, and the doses cost only $1 to make. Extrapolating from current demand, I will sell a million doses in the next 20 years while my patent is in force. I set my price at $200 per dose; with the costs being $1 in manufacturing and $100 in repaying my investment, so I'm making $99 in profit per dose. After 20 years, I have $99 million dollars in profit.
If I don't have patent protection, as soon as my drug hits the market someone will do an analysis and make a generic clone of it, selling it for $100 a dose, also settling for a $99 profit margin. They would take over 99% of the business from me, leaving me stuck with the tab for about $99.99 million dollars in research investment.
Would any pharmaceutical company ever do research again? Would anyone be trying to cure anything if they thought it would bankrupt them to do so? My guess is that a few celebrities will be affected by some diseases and create "foundations for the cure" efforts on a one-off basis, but in general, innovation in drugs would die without the patent system.
Of course, this is a simplistic picture, and the real world of shady marketing, fraudulent studies, suppressed side effect reporting, drugs to treat imaginary ailments, and all the other unethical stuff the pharmaceutical companies do certainly complicates things. And there are ongoing costs to the inventors and manufacturers of the drug: lawsuits over side effects, wrongful deaths, etc. But at its core, without the patent system these drugs would never be created.
So if we've established that pharmaceutical patents are necessary to drive research that may benefit us as a whole, then at least part of the patent system should at least be salvaged and not dismantled.
John
From the article:
This is something we hear all the time from almost every entrepreneur in Silicon Valley. Patents feel like a "necessary evil," but no one feels like they need them. This should really wake up Congress. They always talk up how patents help and protect entrepreneurs, but the reality is that they're a complete nuisance for most.
HAHAAHAHAHHHHAHAHHHHHAHHHAAAAHAHAA. That was awesome. My eyes are watering. Man, I've been working long hours for the past week or two, and I needed a good laugh this morning.
That is absolutely precious. OK, Mr. Masnick: I hate to be the one to bear this bad news, so I'll try to do it gently. Congress is not interested in protecting entrepreneurs, the middle class, small business, or any of the other drums they beat so frequently. When a Congress person says "We have a responsibility to protect XYZ", it is like when the President says, "I have complete confidence in Michael Brown". It means "The referenced person/class is a freaking albatross that I would sooner toss down the oubliette than spend one more minute thinking about, but professional politicianing requires that I pretend I don't want to gut it and sell the tender innards to my friends."
Congress cares about lobbyists with a lot of money. Period. End of story. Entrepreneurs have jack shit. Entrenched incumbents have the money. Entrenched incumbents are who is served by patent policy. Congress is entirely awake and aware of who their puppet masters are.
Want proof? Read this. We are the only country in the world that still rewards the inventor with the patent, instead of the company with the fastest lawyers. It is blindingly obviously the right way to reward innovation instead of litigation. It is so obvious that for Congress to accept First-to-File would be indefensible as supporting innovation or entrepreneurs to anyone who has even a remote knowledge of the patent process. And for inventors who have lots of patents, like my Father, the idea of First-to-File is enough to send him into a half hour apoplectic tirade that makes me fear for his heart. Yet the movement to make the switch is alive and kicking, and probably going to happen within the next few years. Why? Mostly because with every check Microsoft writes to damned near every person in Congress, they say, "Oh, and pass first-to-file -- we're tired of only getting patents when one of our employees invents something."
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Why does a drug cost $100,000,000 to develop?
Well, let's see. How's that cure for the common cold working out? Haven't figured it out yet? How about vancomycin-resistant Enterococcus (VRE)? Or methicillin-resistant Staphylococcus aureus (MRSA)? Multiple sclerosis? How about herpes? Strokes? Blood clots? Well, we gave you a million dollars, so everything must be cured, right?
Let's say you've spent 10 years doing the research, paying hundreds of scientists, lab workers, assistants, administrators, managers, etc. You're in an expensive lab in an expensive building surrounded by expensive equipment. Every time a researcher finds a compound that has some effect, you're designing and running a unique battery of tests to prove its effectiveness, efficiency, toxicity, etc. Let's say you get lucky and finally discover a compound that works in the lab. You run your animal tests, and now it's time for people trials. How many get sick from the first round of your drug and sue you? How much money did you set aside to deal with other problems that crop up?
Would it surprise you to learn that $100,000,000 is actually well below the industry average for the creation of a new class of drugs these days?
And I just loved the way you disparaged existing, effective drugs as "magic water" and in the exact same sentence tossed out "genetic engineering" as if it's the panacea for everything from splinters to cancer.
Oh, I get it. IHBT. Nice.
John
How far do you think you would get in the interview process if you said, "The reason I want to join the patent office is so that I can stop stupid patents from being accepted"?
I know next to nothing about the USPTO's hiring practices, but I don't see anything wrong with this statement once it has been reworded using positive language: "I want to focus on quality to make sure that only inventions worthy of a patent get a patent. This will bring good reputation to the Office."
There is a problem with this as well, you pointed out some shenanigans, but the profit incentive causes problems for society as a whole.
The drug companies will not research drugs that, when developed, would ease most suffering. Rather they pursue the kinds of drugs that they are most likely to profit from. While some here may not like it, I believe that the public sector research advances drugs that we need (vs. drugs that have large markets) a whole lot better than the pharmaceutical giants do. A lot of the drugs created by the giants are unnecessary or do the same thing as the competitor's drug that's already on the market.
I personally think that collectively paying a little more taxes is a better idea compared to not having a drug for your not-so-common disease, or just simply not being able to afford the cure when the shit hits the fan. A classic example could be, that there probably isn't nearly as much money to be made in curing aids, as compared to selling drugs to deal with the symptoms.
The aspect unique to the pharmaceutical industry is the size of the investment. I can't sit in my garage and test a hundred thousand compounds, or even test one compound on a level 4 biohazardous material. I may not have a hundred friends with herpes who want to inject themselves with John's Herpes Drug Trial #317. And after the trial, I may only have 88 friends left, and a dozen multi-million dollar wrongful death lawsuits. I can perhaps build a wristwatch that houses a fishing reel, or a hat that holds beer cans in a silly fashion, and ask my in-laws for a few thousand dollars to patent a prototype. But I can't create a garage-drug and bring it to market. For one thing, as a society we've set up the FDA who has placed a heavy testing burden on new drugs. Just to bring one drug through clinical trials takes many years and costs millions of dollars.
Remember, the patent system applies equally to the beer-can-holder-on-a-hat invention as it does to a billion-dollar drug. A lone person could invent creative beer-can-holders all day long and patent them. Or to use your example, people can play music for money without needing a record company behind them. None of those approach a minute fraction of the investment it takes to create a complex drug. And those investments would be wiped out if patents weren't protecting them.
Is every blockbuster drug helping society? Certainly not. It doesn't benefit me if you achieve male enhancement or a four hour performance. A useful drug does benefit me if it keeps you healthy and functioning long enough to pay more taxes, or to build cool web sites that people visit, or to do whatever it is you do. But can you tell me in advance which of those new drugs might cure your wife's cancer? Which of those drugs would be keeping your son breathing? Which one will you need to save your own life next month?
Could new drugs be invented another way, perhaps via publicly funded research, and run through university grants? Sure. Would it work? Possibly. Would it be as corrupt as the current pharmaceutical industry? Undoubtedly. Would it be better than what we have today? That's unknowable. And we already have evidence that today's system produces some useful lifesaving drugs. It's a classic case of "the devil you know."
As a society, the patent system is a gamble we take that the pharmaceutical companies will continue valuable research and will create something more valuable to society than a cure for Restless Leg Syndrome. So far, the patent system actually pays off in that respect. If you still don't believe me, ask anyone who is taking retrovirals to keep their HIV infections from giving them AIDS if the system works.
John