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Google's Patent Lawyer On Why the Patent System Is Broken
The San Francisco Chronicle features an interview with Google's patent counsel, Tim Porter, who argues that "... what many people can agree on is the current system is broken and there are a large number of software patents out there fueling litigation that resulted from a 10- or 15-year period when the issuance of software patents was too lax. Things that seemed obvious made it through the office until 2007, when the Supreme Court finally said that the patent examiners could use common sense. Patents were written in a way that was vague and overly broad. (Companies are) trying to claim something that's really an idea (which isn't patentable). There are only so many ways to describe a piston, but software patents are written by lawyers in a language that software engineers don't even understand. They're being used to hinder innovation or skim revenue off the top of a successful product." Porter is speaking in particular about the snarls that have faced (and still face) Android, based on Microsoft patents; he blames some of the mess on a patent regime where "you don't know what patents cover until courts declare that in litigation. What that means is people have to make decisions about whether to fight or whether to reach agreements."
Nothing new here; forget for an instant that it's our beloved Google behind this lawyer, and it's simply someone under patent fire saying that patent aren't fair. Not to say I do not agree, but if Google was at the top patent-wise, would we see that article?
Bah.
Most new products come out and they don't even know they violated patents for years in most cases cause companies that hold the so called patent even know they could claim anything til years later.
The issuance of patents is *still* bad, it wasn't just some period in the past.
The problem stems from the core software patent problem, trade secrets work so well in software's case that no patent examiner can be aware of the body of prior art that exists. Likewise he can't know if it's an invention, or just an incremental change from what already exists.
And he may be fooled that the patent office has changed its spots, it hasn't. It still defaults to issuing patents when in doubt.
I think we are close to serious patent reform which is going to be good for everyone. Everyone agrees the system is broken and everyone agrees there are insane patents.
Some of the companies that are most innovative are doing everything they can to stifle innovation.
Tim Porter may be a nice guy and all, but if it was Google with all those so-called bogus/lax patents he'd be up there talking about how the patent system is fine and the problem really is more that the enforcement process depends on endless litigation and how the determination of infringement needs to be more streamlined.
He's a lawyer, his job is to be an advocate/mouthpiece for his employer's interests.
I didn't know Google Lawyers were fans of the Bard
These posts express my own personal views, not those of my employer
software patents are written by lawyers in a language that software engineers don't even understand.
That's been true across many industries, at least since the 1970s (which is as far back as I ever researched prior art...)
The real indicator of what's broken in the patent system can be read in the patent numbers themselves... in 1992 we were at 5 million and something, since the start of the United States Patent Office, now we're roughly double that number?!
Sorry, everything useful hasn't already been invented, but something is just out of synch. I think an ex-CEO of mine (ex high school football quarterback too) summed up the problem in his own words: "Our competitors were granted 62 patents last year, while we got three, can anybody tell me what that means?" I'm told there was stunned silence in the boardroom. "It means that WE'RE 59 BEHIND, now let's get going!" Patents have been turned into fuel for lawsuits, and they're reaching a scale where even a crappy little $100M/year company can hire a small army of patent attorneys to stock their powder magazine.
... too incompetent to judge the quality of patents anymore, especially regarding software and mathematics. There is an infinite amount of work to be discovered/yet undone. Over time the complexity of modern products/etc has out-stripped human capability and human judgement so we have just ridiculousness things getting patented. Companies will just patent the low hanging fruit which are the foundations of all future work and hang everyone else with it. It's time to put the system down and severely restrain it. We have copyrights that go on forever and the public domain has been completely stolen by corporations.
This is especially apparent with abandon/out-dated/breakware video games or companies that can't afford and whose teams have long since left/died/moved on. Games and IP just sits collecting dust when it should be able to be used by others. I often wonder if take say a hot property universe for the sake of argument say: Transformers, let companies compete on making good games instead of trying to lock down licenses. It's time to get these companies competing on product quality instead.
I think we've all seen companies just lock down stuff and then make mediocre crap with it, it's time for a more sane system.
I'm pretty sure 99% of developers visiting Slashdot know the patent system is broken. You should not be able to patent mathematics. We know this. The problem is, to fix it, we have to not only teach people who have no clue what computer science even is how code works and how it is all mathematical formulas at the end of the day, but the people that need to know that patenting software is akin to patenting a paragraph of a book have been listening to lawyers and patent trolls for years, and those are the ones profiting from the broken system.
you don't know what patents cover until courts declare that in litigation
Same thing is true for civil liberties.
Same thing is true for torts and liabilities.
Same thing is true for criminal law.
Etc. It's the nature of our English law system. It provides extreme flexibility at the cost of being vague.
On the other hand, various continental systems are much more exact, but less flexible.
Of course, if every time there's a question of law, it takes hours and hours to research (at $500/hr), lawyers tend to get rich. Which means the chances of reform in the US are nil.
Advice: on VPS providers
Quote: "there are a large number of software patents out there fueling litigation that resulted from a 10- or 15-year period when the issuance of software patents was too lax"
Proper headline: "Google's Patent Lawyer On Why the Patent System Was Broken, and How to Manage the Aftermath"
We are fortunate the “patent system” is a relatively new concept. Just imagine what would have happened if Mr Daimler and Mr Benz had filed a patent for a horseless carriage with four wheels or if the Wright brothers decided to file a patent for a device that produces lift as it moves forward (Aeroplane wings) or Edison decided to file a patent for a piece of cooper wire that conducts electricity. We would still be in the middle ages (And the church would control the world)
I'm curious about which company is the worst offender of producing these types of garbage patents. I've seen plenty of these junk patents linked to (and made fun of) on slashdot, but I don't recall thinking one company was doing it more than others.
Thoughts?
Vote again:
https://wwws.whitehouse.gov/PETITIONS#!/petition/pursue-software-patent-abolition/fHkD8wYM
My guess is that they STILL won't get the message, but one can always hope...
The problem is not the laxity of the software patents.
The problem is in their existence.
We could never patent the use of English in communicating from one person to another.
Hence, we could never patent the use of a precise algorithmic language in communicating from one person to another.
Hence, we could never patent the use of a precise algorithmic language in communicating from one person to another person who shares no common language except that precise algorithmic language.
Hence, we could never patent the use of a precise algorithmic language in communicating from one person to a computer.
Hence, we could never patent the use of a precise algorithmic language in communicating from one computer to another.
Programs are communication, period. If you don't patent communication, then you don't patent programs -- period.
Don't you dare allow someone to patent my poems.
They took existing inventions and appended the words "on a mobile device". That's the extent of their patenting ... whether it's multi-touch or even their magsafe connector (which already existed on deep fryers).
Too bad that you posted this as A.C.. I claim the copyright to it. Thanks.
The other lie that everyone believes is that patent protection is only 20 years from filing date. This is a major lie. Since the patent office itself takes years to approve an invention the inventor can petition that the time taken to approve the patent be added on.. not only that the inventor himself can delay the actual approval of the patent and thus get even more time added on while "blaming" it on the patent office.
An example of this is the fact that there were some patents on HDTV technology that was recently granted though the filing date was 1990something .. the lawyers managed to tack on 10 years to the 20 years from filing patent expiration date.
Normally companies like Apple get about 3 to 6 years added on thanks to manipulating the patent system with their lawyers.
Google's right about MS's patents. They accrued them by buying companies with patents, and are now using them to attack Android. But Google ripped off Apple's iPhone, and did it again with the iPad. It's pretty obvious this is the case. The patent and trade dress/trademark systems are working fine for that purpose. The biggest issue seems to be the length of the patents. They're obviously too long. Developing new software is not the same as building a new jet engine. There should be differences in length that reflect this.
I know! I will create software to judge if software is an original, legitimately patent-able idea! Now I will only need to patent the software for software patents...
If you leave enough monkeys alone long enough with type writers and lawyers..
Patent lawyers often claim IP is "real" property.
So perhaps we should tax it like "real" property?
Just as real property taxes encourage owners to develop their land, a regular tax on IP would encourage individuals to develop their inventions in a timely manner instead of trolling.
Let us imagine the patent office charged $1,000 per year to maintain a patent.
Patents which were not maintained would be pass into the public domain.
If the patent holder didn't like the fee, they could suck it up, sell the patent, or let it lapse.
For real innovators, the tax would be no big deal - Its a small sum for a for an innovation from which they intend to profit.
For the trolls and squatters, the tax provides a carrying cost that will cause them to trim their portfolios significantly.
And it doesn't rely on patent examiners to have cognitive capabilities, as the patent market would be self-regulating.
I think would profoundly improve the patent situation, screw Intellectual Ventures, and allow thousands of patent
lawyers to seek more fulfilling, socially redeeming vocations. A perfect trifecta!
What do you think?
Leaving the patent system gray could be argued as an economic incentive, since it spurs so many financial limbs in various sectors. Between forced hardware and software engineering around worded patents, and the vast horde of lawyers that are available, I have to wonder just how much of the reason the patent system is left to its own devices is out of pure fear of what it would do to the indirect sectors.
What would all those patent lawyers do if they didn't have patent wording to argue over?
p.s. I don't agree with this sentiment, just that the system is dragging its feet for more than just the obvious reasons. That, and the US is lazy!
First to file affects only conflicts between one patent application and another patent application. It does not affect the novelty requirement, which is patent application vs. prior art.
In the physical world if I see a valve and think " Hey if I change this part it would leak less" it would cost me millions to create the prototype make a factory to make the valve and then sell it. These manufacturing costs prevent small iterations from small companies to be major factors in any physical world business.
In the software world, the originating creator could have spent months figuring out the best way for menus to cascade from a pull down and code it. Then any decent coder can see that idea say it is "obvious" and make the same menu but with a different color field for each level of cascade and declare it innovative and have it on the market in weeks.
There must be a way to protect the companies and individuals that invest time and money to improve a product, there will be no real innovation if everyone can copy any design without repercussions.
When Microsoft was the same "age" as Google they were not hitting patents, not because the laws were different, but they were creating new technology, not adapting other technologies and complaining when the originating creators call fowl. I am sure Google owns some interesting search patents, and when (if) BING is bigger then they are I am sure lawsuits will follow.
Even companies whose business it is to know, don't know. I recently made an inquiry at Codecanyon about copyright. It was a simple question. Can I use multiple instances of the software on a single website? To my horror they told me- "We are not qualified to give out legal advice and recommend that you contact a legal professional for assistance if you are unsure which license would be suitable for your needs. " If they don't know, how the hell am I going to know??!! And how are they going to find out if I'm violating their copyright? Ridiculous.
We'll never make it.......oh! we made it! http://www.youtube.com/watch?v=SWf3iJjqYCM&list=FL7kKrE4eTs17mQl7eyvJIOg
My favorite personal infringement was "use of XOR to draw a cursor"
To be fair the XOR cursor patent was filed in Jan 1978. Perhaps in 1977 when folks were working on this it was not quite so obvious as it is to us today. I'm just adding some context, I'm not saying it was necessarily patent worthy. I think we would need to know more about raster graphics used in TV, it may be more relevant than computer graphics.
"In the late 1970s and ’80s raster graphics, derived from television technology, became more common, though still limited to expensive graphics workstation computers."
http://www.britannica.com/EBchecked/topic/491818/raster-graphics
I'd rather not have software patents. However, if we must, here is an idea:
What if the patent office increased maintenance fees from a~$250 per year payable in 3.5 year installments, to $1,000 - $5,000 per year? This would increase fees around 4-20 times, it require annual payments, like some countries in Europe.
It seems this would encourage IP holders to:
1. Pay the higher fee, and be encouraged to make the patent pay for itself
2. Sell the patent to someone who wants to develop the idea
3. Let the patent expire, presumably into the public domain
The fee should be acceptable to real innovators, since it is applied to a product from which they intend to profit.
Trolls would be encouraged to significantly trim their portfolios due to the high carrying cost.
Thoughts?
It is all bullshit, don't ya know?
Fuck man, it's all fucked up and if they want America to stay as the creator entity, they need to make it so the "little guy" can still make it off a good idea. As it is now, I've got ideas that I don't want to speak of (Let alone patent) as I expect to just get fucked around if I do try to release it.
I've REALLY got some original ideas, for some impressive shit, but until the patent system gets back in line with reality, I'm just keeping them in my head.
God help us all if you ever receive that patent.
Innovation is nothing but the combination of existing ideas, which are very occasionally novel in some way. Even so, no innovation is deserving of monopolistic protections, which are inevitably harmful to all. The greatest of innovations, which are arguably most deserving, do the greatest harm by limiting or outright preventing widespread use of such ideas. Think of what would happen if key energy technology patents fell into the hands of a fossil fuel corporation? Even with a less hostile corporation, patents will inevitably impede progress, at a time in which the need is greatest. This has already happened with NiMH battery patents delaying electric cars. Also, the industrial revolution was basically postponed for 20 years on account of Watt's patent on the steam engine.
It will be bitterly ironic if the Chinese commercialize the Liquid Fluoride Thorium Reactor, and succeed in securing extensive monopoly protection on foundational innovations. All of the crusades of the US in exporting our draconion IP law, and for what? We will have locked ourselves out of our own energy future, for the sake of media cartel profits. No one deserves to profit at the expense of the rest of humanity.
Patents should not exist at all. In a world with billions of people, someone else would have thought of that "novel" idea anyway, and chances are, already has. It is not right to deprive the countless people arriving at the same ideas from also benefitting from their employment. It is unheard of for people to mine patents for ideas; they are the exclusive domain of litigators, and nothing but a damper on progress.
Any of these companies not calling for outright abolition of all software patents IS NOT ON OUR SIDE.
The usefulness of the patent system is obvious to anyone who has taken the time to file a patent and then had a company lease that patent. It should not be argued that a patent system is not a USEFUL construct. However, there are several issues within the patent system that needs must be addressed. Issue 1: Any patent that is broad in nature, IE: Does not give a detailed description of the exact method and means by which a task or methodology is being done, cannot be allowed to pass through the system. This cannot be allowed because as we all know there are a million ways to solve almost any problem, and as such any one company should only be able to patent their specific methods. This allows others to derive their own methods for accomplishing the same goal, without infringing on others. Issue 2: When a patent is filed, there should be a standard formula applied to all patents such that when a patent is granted, the cost of leasing that patent is public knowledge. Issue 3: The right to lease a patent and the terms and conditions by which that patent can be leased should be defined at the time the patent is applied for, thus when the patent is granted all interested parties have full disclosure of how they may use a given patent. In this way all patents should be available to the public for ANY COMPANY to use, as long as they abide by the terms and conditions, and pay the standard rate. Issue 4: A standard formula needs to exist by which patent terms are granted, there should be no appeal to this term, it should begin on the day the patent is applied for, and end on the date specified by the formula. Once that patent has expired, the technique becomes public domain and free for all to use. Issue 5: Once a patent has entered public domain, the public domain status cannot be revoked for any reason. If these issues are addressed and implemented, I believe that the patent system would finally actually work for companies rather than work against companies.
I thought it said : "Google patents a lawyer." : )
Reminds me of the scene in Young Einstein when the patent office denied Albert a patent on a formula. Millions of patents these days based on nothing but an idea hiding in wait to sue some company who actually produces something you squatted but never truly took it beyond paper.
i hate google
Certainly the patent system is out of control. Patents for using a gesture to unlock a phone? Patents on how many clicks it takes to purchase something? The list goes on and on.
The basic idea of patents makes sense. But they have to be applied to things that are actually inventions of something novel. Those are much more rare and take much more time/energy than most companies are willing to invest.
Of course, the fact that *Google* is now complaining about patents is laughable. What really happened is that they went out into the adult playground and got their behinds handed to them. Now they are crying foul. Welcome to the big leagues Google. Enjoy the ride...
Android contains no innovation. It comprises a bunch of ideas from other companies, mostly Sun and Apple, cobbled together in a hurry to interrupt Apple's trajectory for fear that the success of the iPhone would harm Google's ad revenues. It's basically the IE/windows/.net of phones. And it should be falling foul of patent and copyright law.
Which isn't to say that patent law hasn't passed it's sell-by date, and shouldn't be scrapped.
Software Patents are broken, but can we really trust the opinion of someone who has a vested interest in Liberating Patents owned by their competitors.
I'm sure if we asked to liberate patents based on Google's IP, it would be a whole other ball game. The source code for Android 3.x still isn't freely available and the Source Code to Google's data mining algorithms aren't likely to be made open source any time soon.
it is broken imho because knowledge is something already paid by the consumers
of any good, that is, it belongs to the society.
Then, why not the income of the patents is used in the social system, like
education, health, abroad social assistance, etc ?
And yet you ought to be able to describe a piece of software that hasn't even been made yet and describe in detail its functionality and then write a little bit of a computer program that may or may not actually do what you just described and WHAMMY... you get to patent that?
if your life is such a big joke then why should I care?
I am for abolition of the entire patent system.
Go back to trade secrets and keep them while you can, but don't attack me because I came up with the same idea as you did and implemented something similar. You don't deserve any government protected privilege just because you were first and I was second to come up with the same idea, it only means that I had the necessity to come up with it later in life than you did.
OTOH even if I took your idea and re-implemented it doesn't shouldn't mean that again, you deserve any government privilege of protection. It only means that I find your idea to be valid and I have my implementation, which will now compete in the same space, which is what actually drives innovation, as you try to outcompete me with your implementation. Well, you had a head start, so I need to be more innovative even with the same idea in my implementation, which is again - good for the market of ideas and implementation, because again, I am competing with you, who already had a head start, so the customers are again - better off.
And at the end, the government pretends that it protects the customers by licenses and patents and copyright, but in reality it's not about customers. Customers don't pay governments all those bribes. It's about companies who want monopoly power.
Government granted patents and copyrights are all about creating monopolies and providing governments with revenue streams, nothing else.
You can't handle the truth.
Uhm, so restricting patent trolling only to "practicing entities" somehow makes it "on our side"?
I want "select text" idea NOT to be patentable, not making ridiculous patents Microsoft exclusive.
With suggested change they'll still be able to sue those using linux/android, for, you know, selecting text...
Many bad patents can be culled with a simple change to the procedure.
FIRST QUESTION about the patent: can the patent be kept a trade secret?
No?
No patent.
Patents were invented as an alternative to trade secret. If it can't be kept a secret, then it's unpatentable because we, the public, are getting nothing for our agreement not to copy the idea.
...when patent attorneys themselves were the front line against false claims.
.
Prisencolinensinainciusol. Ol Rait!
The current system is rigged to benefit the wealthy. The answer for how to fix the system is very simple. Make the patent system truly accessible to all. Force the patent office to reduce the charges of filing and obtaining a patent to $0. Then anyone could write and submit a patent, even a person of little means. By allowing anyone, on an even scale of zero cost to submit a patent, we would then see how fast the system got fixed, streamlined, and simplified. Why should a system that is supposed to be "beneficial to society" be accessible only to the people and businesses who have the money to buy into it? Why not let anyone with a decent idea be permitted to submit, at *zero* cost?
If we were to do this, the patent absurdity would be magnified to the point that we would all agree that patents are silly, unfair, and should be abolished. Patents are nothing but a detriment to society. Patents need to be abolished in the better interest of promoting innovation, competition, and the advancement of society and the arts. Stick a fork in them all!
Leave it to "Google's Patent Lawyer" to say this. Talk about bias.
I think you are mixing up patent trolling with general patent enforcement, i.e. getting the insult wrong.
But... getting to your point. Microsoft seems to want some limits on what can be patented. They agree the patents are ridiculous and they agree that methods not ideas should be patentable and that there were major failures. As far as Linux/Android, yes they are competing under the existing laws.
Lets try an experiment and allow patenting the obvious and see where that leads?
The point being is that when you allow patenting some scope of things that are otherwise not of such qualities to be patented you get into a mess.
Software is such a scope of what is not patent-able .... So we have a mess, a broken system which seems to be about the way things are in the US.
Look, I think it remains to be seen how the AIA will effect software patents. I believe that a balanced approach is needed, and to some extent the AIA provides that. Some software innovation is truly groundbreaking and deserves to be patented. However, a lot of patents out there are garbage. But the question is how do you protect the true innovation yet still not allow overbroad patents. Unfortunately, this is almost always related to patent examiner's use of prior art. 9 times out of 10 they are only citing other patent applications or patents as prior art, which of course is severely restrictive view of the entire body of prior art. I'm hoping the new opposition proceedings will provide an additional avenue of challenging patents. Really it is up to us, the community, to police the patent system and the AIA provides such an avenue with the submission of 3rd party prior art. I also believe the new "review" proceedings will decrease the overall value of some of these overbroad software patents. However, because of the complicated procedures that will surely accompany the review proceedings, I'm worried that they will just equal more money for patent lawyers.
i say screw it. no patents, no copyrights, no government protection of any kind for software/code etc. you have code you want to be secret? you protect it. you keep it secret.
With many patents the real invention, where all of the innovation and creativity was invested, is the patent itself.
They are works of art designed to cover everything, including stuff the original inventor never could have thought of.
Or in other words: Everyone is at risk of being a criminal, until proven not to be.
And why not? It's the same thing that worked so well for churches with the "original sin" and everyone who likes sex or fun being a "sinner" who has to redeem himself.
It gives absolute power to rule whatever they like and punish whoever they like. Add Gulags/Guantanamos into the mix, and you can shove off everyone you disagree with. (Protest resulting depending on how well you control/are "the media".)
There ARE bazillions of good ideas out there now that may never be patented because the folks can't afford to proceed with the current system. I personally have many very good ideas that I choose not to patent because of the high cost of entry. That does not make my ideas any less worthy of patent protection. Worse yet, some of those can be found, stolen, or rediscovered by others or businesses, with the money to patent them and they do.
So then why should only the few who can afford the big money risk it takes to get one be afforded the monopoly on their idea. It should be accessible to all on an even basis--it is not currently fair in this regard because of the cost of entry. If in the end, the result after making it available to all at no cost, is that it is deemed worthless or not worth the cost to maintain, then so be it--all for the better. We do not need patents at all, they serve to artificially inflate the costs of goods and services through government condoned and enforced monopolies. U.S. Government is supposed to be "For the people, by the people", not "For the business, by the business".
I frequently see a general misunderstanding of what "obvious" means in patent lore; it's not the general definition of the word as writers here are misstating but, rather, something that can be substituted for another.
For example, if "obvious" was used as other people believe it means, then anything invented after the wheel is not a true invention. A car, for example, is simply a set of four wheels with an engine + transmission.
Patent Examiners can use common sense? I guess that's what they call money nowadays.
Money sure provides a lot of common sense.
Ok look at the history of programming language and AT&T operating system -
Prior Art
Given any one who has completed computer science course work from 1967 till present
understands that we learn from previous life-cycle
of programming language(s) &&
operating system(s) target for
specific
platform - hardware or
virtual - say browser or
cloud
Please refer to Prior art of AT&T Bell Labs before the
break up - per gov request / judgement
per rules of current
game
Can I Use Someone Else's Work? Can Someone Else Use Mine?
http://www.copyright.gov/help/faq/faq-fairuse.html
The programming language C
http://www.networkworld.com/news/2011/101311-ritchie-251936.html
The operating system - AT&T Unix
we all remember the nightmare of SCO - patent troll offender
http://www.pcworld.com/article/137234/sco_declares_bankruptcy.html
http://www.electronista.com/articles/07/09/14/sco.bankruptcy/
So the folks who main existence started with the principle lifting from -
Original authors Basic language before - principle re-wrote for specific platform (hw)
http://www.dartmouth.edu/~vox/0304/0503/basic.html
Most like various - sci fi there was the
Clone wars of
browsers on desktop computers from 90s
to present day but on different platform - now mobile devices
http://en.wikipedia.org/wiki/History_of_Internet_Explorer
Where apple learned from - Xerox
Borrowed Xerox Parc - GUI
http://www.youtube.com/watch?v=wdrKWArr3XY
History of Spread Sheet
http://www.cs.umd.edu/class/spring2002/cmsc434-0101/MUIseum/applications/spreadsheethistory1.html
rem Multiplan
http://en.wikipedia.org/wiki/Multiplan
Finally
OS on desktop
below is nice - visual history
oh who was the parent
http://www.youtube.com/watch?v=_onj4isp9fY
Apple Principle
APPLE HISTORY - Keynote 1983 - Steve Jobs annouces the first Macintosh
http://www.youtube.com/watch?v=VRWvCAuJ048&feature=related
Bill Gates Praising Apple Computers
http://www.youtube.com/watch?v=Uau0aIbrzkQ&feature=related
hmmm
REM past
It will open up lawsuits by people claiming that publishing in some website doesn't count as "publication". People will still get to steal inventions if they can show that stating stuff on some website isn't the same as "publication" since they can say hardly anyone would have seen it etc.
Meaning if you post an idea on a website, somebody can file a patent on it. It happened to me.
http://slashdot.org/comments.pl?sid=2448376&cid=37525784