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Why Patent Reform Won't Happen Anytime Soon
jfruhlinger writes "'If people had understood how patents would be granted when most of today's ideas were invented, and had taken out patents, the industry would be at a complete standstill today.' So said Bill Gates in the 1980s. Now, of course, Microsoft is one of the biggest software patent holders around. And that's the key to the problem of software patent reform: the companies that had the most incentive to face the problem found it cheaper and easier to buy up patent war chests instead. And Congress won't act unless big stakeholders (read: big companies) make a stink."
"And Congress won't act unless big stakeholders (read: big companies) make a stink"
(read: downsize or withold donations)
Be you Admins? nay, we are but lusers!
Without silly software patents such as this one, we'd all enjoy simple, non CPU-intensive encryption that just works. DES, RSA, AES, RC4 and all the other overly-complicated encryption schemes we "enjoy" today were invented specifically to route around that single patent. Well thanks a buncharoony...
"A door is what a dog is perpetually on the wrong side of" - Ogden Nash
Guess we all know about how politics really works now, eh? I think its just filthy.
C|N>K
Did they miss the Bilski case?
Instead of a "clear and convincing" standard, Microsoft proposed instead using a "preponderance of the evidence" standard. This would have, in effect, weakened or reduced the value of all issued U.S. patents.
Interesting to see the biggest company, Apple suing to keep competitors products off the the market, not being mentioned at all either in the article or summary.
This space for rent.
Er, the big tech companies are exactly the ones who are pushing hard for patent reform. Microsoft and Google are two of the biggest pushers for patent reform - they both spend a stupendously large amount of money on defensive patents and fighting lawsuits so it makes sense from a business perspective. Microsoft itself has gone before Congress and the Supreme Court a number of times, urging them to reform U.S. patent laws. I don't know what is preventing Congress from enacting patent reforms, but it certainly isn't the big tech companies.
It's called the "America Invents Act" and it stands to make the patent system 100x worse: http://en.wikipedia.org/wiki/America_Invents_Act
Very few patents are for actual original innovations that warrant an up to 21 year monopoly (1 year from disclosure plus 20 from filing date). Let me give you an example .. the concept of a magnetic breakaway safety mechanism for power cords was invented in the 1990's for deep fryers (though it may actually have a longer history than that). In the early 2000s, Apple got a patent for the same concept when applied to electronic devices. Does Apple really deserve a 21 year monopoly for copying an idea that someone else came up with .. just because they added the word "electronics devices" ?
There should be standards for obviousness .. for example if it's a combination of a two things .. one of which recently came into existence .. then there is no reason for the patent issuance .. since it's likely an obvious idea to combine the two. Also for patent interference (when two people file a patent on the same thing before either has publicly disclosed it), the patent should be denied. Why? because if two people can come up with the idea around the same time that means it's probably not a great idea in the first place -- most likely it's an inevitable evolution.
Everytime a new device comes out people will rush to the patent office to file claims. For example when a new flying car comes out .. people will rush to file a patent on "GPS in flying cars" or maybe even ridiculous things like "doors in flying cars". A company in 1994, Acacia, got a patent on HTML in CDROMs and started trying to sue everyone who made CDROMS that have HTML code in it (sounds crazy, but google it).
OK, now there's that .. now here is something scarier .. the America Invents Act .. which is very shortly due to become law (its in the reconciliation process). The new law redefines what an inventor is (in order to get around the US Constitution which says only inventors can have patents) .. by defining inventor to be anyong who independently comes up with an idea. So that means that if you come with an idea before me, and can even prove it .. say you posted in online (somewhere which doesn't count as printed publication) .. I can still get the patent for your idea .. as long as I 1) File for the and pay the patent fee first and 2) state that I came up with the idea independently (though after you).
Not only that think about all the stuff out there that has not been patented .. for example .. In computer science .. the Bubble sort (to be honest I am not sure if it's patented .. but there are other algorithms out there of equal value that haven't) .. today maybe many apps on mobile phones may be implementing bubble sort in mobile phones applications .. but nobody got the patent on it .. I can file for a patent on "using the bubble sort patent in a mobile phone app" .. similarly I can go through all the computer science books and start patenting all the various algorithms by appending "on a mobile device" to it. The pay off will be huge and it will all be legal. Heck maybe I can patent the Bubble sort itself .. by claiming that I independently came up with it!
Of course, I sound ridiculous right ? How could they really be making such a dumb law? And why (it's to take away the burden from the patent office for having to google for prior art because a lot of patents were being overturned in lawsuits when it turned out that a simple google search would have brought up prior art .. thus humiliating the patent office). Read it for yourself: http://en.wikipedia.org/wiki/America_Invents_Act
You cannot expect any sort of reform whatsoever to occur anytime soon because essentially all of our agencies have been captured by industry.
Give me Classic Slashdot or give me death!
Greed.
Suppose humanity figures out most of what it needs to live in perpetual prosperity. Tesla's patents for polyphase AC system expired long ago, and all his notes and prior-art for next-generation energy systems was seized by the FBI when he died.
Drug companies have a real patent problem on their hands: all their old "blockbusters" are losing patent protection, and nothing's coming up to replace them. Why? Because the chemicals we have are good enough.
For the most part, true health is not produced in a chemistry lab, it is produced from "right living": the right kind of food inputs and the right kind of activity make a bigger difference in most people's lives.
There will always be innovation, but the pace will slow down substantially. Our focus needs to move to implementing the ideas we have, rather than fighting patent warfare amongst corporations. 20 more years... :)
Learn the rules so you know how to break them properly.
www.teslabox.com
A lot of Microsoft's concern over reform is in dealing with NPEs, since their war chests aren't at all useful against them.
This is my signature. There are many like it, but this one is mine.
They have to pay me before they can fix the system.
Patent Reform is just the kind of thing that would be gridlocked in congress. Whomever brought it up, regardless of merit, would be opposed by the other side.
However, in order to fill campaign coffers, I bet you will see stuff come up regularly, with a wink wink across the aisle, as a fund raising tool.
Bitcoin pyramid: Join here: http://www.bitcoinpyramid.com/r/1427 it's FREE!
A guy or gal with credibility with the mainstream media, Congress and general public, someone who has a substantial and successful business record in technology (blogging and journalism don't count) and who is considered pragmatic, not an ideologue.
Not RMS or Lawrence Lessig.
I doubt our founding fathers had any idea that corporations would own patents rather than individual innovators. Corporations claim they are the ONLY reason a patent is created and, therefore, they own it. Is that true? Think about Dennis Ritchie, Ken Thompson, Steve Jobs and Bill Gates. Should not they own their patents directly?
Should patents, once transfered have force? Patents are, indeed, property. But since they
are also called out explicitly in the US Constitution, they can be subject to special rules. After all,
they are not physical property. They are the archetypical "Intellectual Property". In the
history of "property rights" where does Intellectual Property show up?
I am very uncomfortable with the concept of patent trolls. (Paul Allen, are you listening?).
Patents should be granted to individuals in my opinion. Here is where the 'personhood'
of corporations should be denied - legally.
To me, a patent should be a grant by all of America to the INDIVIDUAL who created and deployed
an idea. I think there may be economic consequences of such a view, but I would be more willing
to accept them than what is currently happening in the "patent wars".
Ed
I don't know what is preventing Congress from enacting patent reforms, but it certainly isn't the big tech companies.
I believe I got this article from slashdot, but I'll post it just in case. Essentially, they were caught in a battle that involves Big Pharma, Wall Street, and an underdog with delirium of grandeur. That's what is h
I rarely respond to comments. Also, don't ask for clarifications: a brain and Google are faster, believe me!
Since the Senate passed the cloture vote on a mirror image of HR 1249 by 93-5 about an hour ago, I'd say that someone is incredibly uninformed. It will probably be signed into law by the end of the week.
Maybe we need to devalue patents so that they are worthless to the companies filing them.
For software patents, which are the most bothersome, perhaps an open source implementation that would allow the rest of the world to use the invention might discourage this nonsense.
The US currently awards patents on a first to invent basis. The rest of the world, plus the US if this bill passes, awards patents on a first to file basis. The opponents of first to file often make the erroneous argument that inventors get screwed under first to file. Nonsense, the first to invent is in the best position to be first to file. The "problem" is that in the US folks are used to gaming the patent system to get a few extra years of patent protection.
Under a first to invent system a person begins a well document process and invents something. They postpone filing for a patent because it will take some number of additional years to turn an invention into a commercial product. They rely on the fact that if some other inventor files they can trump that filing with their documented history of invention. Under a first to file system someone who invents something and postpones filing until they are closer to having a marketable product is gambling that another inventor will not appear. If some other inventor appears the gamble is lost.
All that a switch to first to file will mean is that inventors can no longer safely gamble that a competitor will not appear during the timeframe that an invention is turned into a marketable product. The first to invent merely has to file immediately to protect their invention. The only thing that is lost is some time under patent protection, the time to create a marketable product. Given that patents are 20 years this is not a big deal, most inventors will get 17-19 years on the market under protection rather than 20.
You don't have to wait until flying cars are invented to file patents related to it. Take patent 7,299,242 which AFAICT claims the use of all value recycling methods, including ones not invented yet, in single target reference counting. Except by definition of the problem, a multi-threading race condition, the solution is some form of value recycling. So basically you can get a patent not by proposing a particular solution, but by stating a problem and claiming all possible solutions to that problem. Linux uses RCU, a value recycling scheme, to do reference counting safely so it's in violation of the patent.
So for flying cars, you don't need to specify how to make a flying car, just define the problem of transporting people and goods through the air in a small vehicle and claim all possible solutions to that problem. And the patent office will grant it. IANAL but if some legal type would explain the subtlety here, I would appreciate it just so my flying car patent application has a better chance of making it through.
And Congress won't act unless big stakeholders (read: big companies) make a stink.
Quotes like this highlight the true root of the problem. While Congress acts on behalf of corporations instead of the public, anything that favours the public is going to be incidental. There's no point in trying to reform the patent system, unless the political system which undergirds it is reformed first.
Just because you're paranoid doesn't mean there isn't an invisible demon about to eat your face
You can take a cynical outlook to any situation needing reform and say it will never happen because people don't want it to happen. Missing in TFA is any concrete reason why it can never happen. "Companies find it cheaper to abuse the system themselves, and, you know, lobbyists" is about it.
During the Bush/Kerry election, there were plenty of people willing to glumly tell you that preexisting conditions would never ever ever ever be covered in the US because the health insurance industry wouldn't allow it, and a million other reasons. They were wrong. The health care reform that we got wasn't anyone's dream come true, one could argue that the health industry got a better deal out of it than they should, but pre-existing conditions are going to be covered. With patent reform, we should, like with healthcare reform, not expect to get a perfect solution out of it, as those don't actually exist when talking about something as complicated as that. Compromise is an inevitable part of politics.
Even earlier, there were people who said that the soviet union would never fall. Before that, people swore we'd never walk on the moon. Before that, everyone was just positive that man would never fly because there was gravity. And a while before that, there were posts on ITworld.com about how slavery was far too important to the economy of the south and it would never be abolished ever.
I don't see much point in predicting something is not going to happen for a very long time just because businesses may not want it to. Now if he had a crystal ball prediction, that would lend slightly more credibility to it...
just making sure cause its not really fair to quote someone who is not in the office anymore and making it out like current policy was their decision
Patents is the only reform I can think of and that ain't gonna happen until they figure out a cheaper and easier way to bleed the general public.
In the words of Gandhi, "Be the change you wish to see in the world."
Live how you want and ignore such absurd laws and they will soon be relegated to the dustbin of history. Tolerate this and you are sacrificing freedom for an unrealistic dream peddled by snake oil salesmen.
The only way to get rid of software patents is to make the system too expensive for companies to support the current system. One way to do this is to create a large growing patent pool that is not available to commercial companies. The organization holding the pool would have to vigorously defend the patents. Some issues would exist, none insurmountable. One is the money needed to pay for the new patents and to litigate against those violating the patents. (Not wanting to write a manifesto, I will touch on this.) Say the EFF chose to do it. The issue branches into minimizing the cost and optimizing the money invested in patents. The application cost is fixed, the cost of preparing the application can be reduced a little, especially if EFF were handling writing the patent applications and writing all of them with a common goal. Consider a company that wanted to help the cause. Paying for some patents used in this way is a solid long-term investment if it helps break the patent system. It may even be possible to include commercial companies. Allow them to join possibly by transferring all patents to the organization. If a company has no patents, maybe they could join by paying for a patent or two. The solution is not a big deal. It is only a case of setting up an organization that constantly gets more patents and completely blocks any company that won't join. Such a system, once going, accelerates quickly. Oh yes. It should be set up that when a company joins, it joins irrevocably. This prevents large companies with patents forcing it to withdraw. Patent trolls are not an issue. Forcing the large companies into patent gridlock is all that is necessary. They will get the law changed.
> And Congress won't act unless big stakeholders (read:
> Big Campaign Finance Contributors) make a stink."
There. I fixed it for you.
If you disagree with me on social issues, then it's pretty clear that you are a narrow-minded bigot.
More and more, I keep remembering Spider Robinson's Melancholy Elephants.
http://www.spiderrobinson.com/melancholyelephants.html
Yes, I know that deals mainly with copyright, but the points about the damaging effects of intellectual property protectionism is still relevant. Besides, these days, the main differences between patents and copyright are mainly that one costs more money and effort to file for while the other is implicit.
Did they miss the Bilski case?
Instead of a "clear and convincing" standard, Microsoft proposed instead using a "preponderance of the evidence" standard. This would have, in effect, weakened or reduced the value of all issued U.S. patents.
Interesting to see the biggest company, Apple suing to keep competitors products off the the market, not being mentioned at all either in the article or summary.
Not that I disagree with your post, but the first line should be "Did they miss the [Microsoft v.] i4i case?" Bilski was different - i4i was the one your quote refers to.
You posted this in this article, and people repeatedly pointed out your numerous errors. You didn't reply there, but instead posted the same comment here... Does this make you a troll?
The reason now is "in for a penny, in for a pound." How much of a software company's worth is the value of their patent portfolio?
Let's look at Google, and their project Android. Android was recently attacked by a series of patent infringement suits. These guys, Oracle, a few others.
How do they respond? They purchase Motorola Mobility, for $12.5 billion. Suddenly, bang! They have a gigantic war chest of mobile patents. Now the situation changes. Now it's like the guy who goes to see the dentist, sits down in the chair, and when the doctor comes in with the drill he grabs the doc by the balls and says "Let's not hurt each other." Suddenly these heavy hitters have something to fear.
Now the other side of the coin.
Google just plunked down $12.5B to defend itself from software patents. That's how much it was worth to them. Sure, they get Motorola Mobility as well in the deal. But we all know why they made the purchase. For the patents. Cheaper than going to the courts. How much of that 12.5 do you think the patents were valued at? How much did Google stand to lose fighting Android? Same number pretty much. Probably more than 5 billion. Probably less than 10.
Now imagine if software patents were suddenly made invalid. That is a LOT of money to suddenly go *poof*. And that's just one instance. Think of every tech company that has a patent war chest. How much value they place on it. How much money they make in licensing. Motorola Mobility just was purchased because of their patent "wealth".
If that all suddenly goes away it'll wreak havoc in the tech sector. All patent holding companies will have to be revalued. Expect companies to lose 20%, 30%...50%... What do you think that'll do for jobs in the tech sector? Your job?
I freaking hate software patents, but now that they're here and companies lean so heavily on them for valuation...it's going to be a rough day when they go away. Going to be a *lot* of unhappy stock holders and a lot of lost jobs.
Weaselmancer
rediculous.
LZ/LZW compression, RSA encryption, etc are excellent examples of software patents that were definitely not obvious, had no prior art, and were incredibly valuable.
However, simply adding "on an electronic device", "on a computer", or "on a mobile device" to an established method of doing something should not qualify for a patent. There needs be something else that makes the method novel and non-obvious, for it to qualify for a patent (i.e. it's an "improvement" patent, not merely applying essentially the same method to another class of products.
If we actually required patents to be novel, non-obvious, significantly different that prior art, and made it easier to contest/invalidate "dubious" patents that slip through, we might be able to create a workable patent system, including software patents. I can even see justification to give most software patents a reduced term (5-10 years?). Not because I think software patents are less valuable, but because they're usually cheaper to create/produce, and because most of them will have a shorter market life in the fast-paced software field, so a shorter term would mean fewer latent infringement suits, not necessarily significantly less revenue. The shorter term also addresses the public interest in making such inventions available for use such that the public benefits from them.
A bit of a left turn here, but patents for medications, gene therapy, genes, etc also need to be seriously reexamined. I have some ideas there, but those with more experience in those fields may have more suggestions for changes. One example I can think of is patenting a racemic mixture of stereoisomers, then when that patent is about to expire, getting a new patent for a single enantiomer of the same medicine. In many stereoisomers, one of the enantiomers is the active component, while the other is either inert, or responsible for increased side effects. So, the isolated enantiomer is often a worthwhile improvement, however, I don't view that as grounds for another 17-20yr patent. If they have to invent a novel process for separating the enantiomers, that process might qualify for a patent, but the drug itself shouldn't. There are other similar examples, but I'll leave it at that for now.
make imaginary.friends COUNT=100 VISIBLE=false
Maybe the fact that the US gets a LOT of money from the fees companies use to register those patents, and the defensive ones used to fight them? It's like asking why an arms dealer, who deals to both sides, wouldn't want to make ammunition harder to get...
It's a sign of the times, the percentage of the population capable of coming up with a new idea is shrinking, and the model employee(technical) is now too specialised to see the big picture dew to technical requirements, etc... Not to mention the fact that most things have already been done.
Innovation is now something that is attained through acquisition of other companies. Recognise.
For a small company to "make a splash", hold on to their "idea" and be the one to profit, a patent is the only option.
At the end of the day, most starts-ups want to be bought-out, so a patent is essentially the dominant currency of today.
The age of "Inverse outsourcing of innovation", is upon us.
There are two major industries fighting against patent reform: agriculture, and pharmaceuticals. Both make a killing on patenting what's essentially software. The largest tech companies that produce real products are for patent reform. The ones against it mainly do not sell actual software, but sells the services their software is able to perform.
Actually, funny thing is, patent reform will also result in health care reform, as well as help fight obesity. Both Barack and Michelle's goals would be fulfilled almost overnight by fixing one system. But the interests are too entrenched.
"If a nation expects to be ignorant and free in a state of civilization, it expects what never was and never will be."
I've thought along those lines with regards to gradually implementing shorter copyright terms. Seems like a similar process could work for patents and/or complete abolition.
2011 patents would last for 20 years (expiration 2031)
2012 patents would last for 19 years (expiration also 2031)
One could take this process all the way to zero or stop at a reduced term. For example, if you wanted to reduce the patent term to 14 years, you'd reach that point in 2017 but you wouldn't further reduce to 13 years for 2018.
In this example, there would be a glut of things expiring in 2031 thanks to the term having gradually been wound down.
However, if you fully reduced the patent term right away, you'd end up in an odd situation where some older patents expires after some newer patents.
(for example, 2011+20=2031 vs. 2012+14 = 2026)
I listen to both RIAA and non-RIAA stuff if I like the music, tangential business/politics nonwithstanding.
You mean like Hollywood is a strong proponent of copyright reform... Not all change is good. Always read the small print.
ps. Since Hollywood already got the DMCA, they probably actually don't care about copyright term anymore. Their films are now forever locked in their encrypted containers...
Lawyers do well out of patents. Even if all the big tech companies decided they sucked, the lawyers would not want it to change. I am not sure they carry more weight than the legal profession, look how many politicians are lawyers.
1 year. Then they expire.
> LZ/LZW compression, RSA encryption, etc are excellent examples of software patents
No they aren't. First of all, LZ was never patented. If you read the patents (RSA, LZW) they explicitly add physical elements (e.g., communication channels), because at the time they were issued, no one thought that abstract ideas of how to compute things were patentable. Which makes the opening of your next paragraph
> However, simply adding "on an electronic device", "on a computer", or "on a mobile device" to an established method of doing
> something should not qualify for a patent.
seem kind of strange except that you do limit it to non-established methods.
They found a few good ones.
Since Hollywood already got the DMCA, they probably actually don't care about copyright term anymore. Their films are now forever locked in their encrypted containers...
For certain values of 'forever'...