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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"
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.
if the Wright brothers decided to file a patent for a device that produces lift as it moves forward (Aeroplane wings)
They did, that's a bad example. They were the patent trolls of the 1900s.
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.
...What?
http://en.wikipedia.org/wiki/Wright_brothers#Patent_war
http://en.wikipedia.org/wiki/List_of_Edison_patents
http://en.wikipedia.org/wiki/Gottlieb_Daimler (just search for "patent")
Not quite sure what your point was but I feel safe it was mistaken.
I live in constant fear of the Coming of the Red Spiders.
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..
I just need to comment on one area.
I develop on both iOS and Android. I've been using Macs for decades and still buy them as my primary workstations. Anyways, no, Google did not rip of the iPhone or the iPad; no more than Apple ripped off Google, which is pretty obvious for anyone that works with both.
Wont help.. trolls will still just Sue for money like they do now, and pay the $1000. Pocket change tobthe IP lawyer trolls hoarding patents with no intention of making anything
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
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.
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.
They ripped off the UI and hardware design. Before the iPhone was revealed all Android prototypes were Blackberry rip-offs. They abruptly switched course after Apple's reveal. Now they're ripping off Windows Phone OS with parts of Ice Scream Sandwich's interface. Google's been pretty shameless about this whole thing, especially abandoning their stance on net neutrality in order to get Verizon's backing of Android. As much as it pains me to see it, Google is floundering. They're like the Jobless Apple of the 90s. 300 different projects with wonderful technologies wandering all over the place... with almost nothing to show for it. I think the employees are coddled and they lack proper leadership or vision.
They spent $12 billion on Motorola to defend Android, but it won't matter in the long run. Google would have been far better off bidding to win in the 700 MHz auction in 2007 and building a nationwide wireless network. Wireless margins are pretty huge. In fact, they could spend an order of magnitude less money by buying up Clearwire right now, which is at a record low market cap. Otherwise what do they have to show for the tens of billions they've invested into Android? Most of their handheld web traffic comes from iPhones anyways.
they've got more to lose than some AC
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...
Don't forget James Watt. Patented a few ideas related to the steam engine, then spent the rest of his life just stopping anyone else from making them. He didn't bother to improve the technology, and aggressively fought anyone else who tried, because he was already raking in the cash. If not for his own patent trolling, we might have had high-pressure steam technology ten years earlier. He is also noteable for a patent for using a sun-and-planet gear with steam, which is very similar to what you see in many software patents of the form "Use of (already well-known technology) with a computer." Amusingly enough, he switched to the sun-and-planet gear because another inventor had already patented the use of a crank with steam.
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.
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...
...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!
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.
I can't speak on the Edison example, but GP was right about the Wrights, it was only pressure from the US government at the outset of WWI that forced them to engage in licensing their patents that stopped them owning the whole process. In a very real way this was the US admitting that patents stifle productivity and trying to find a way around the issue in a time of national crisis.
But Google ripped off Apple's iPhone, and did it again with the iPad.
Google don't make hardware so I'm not sure how they ripped off iPhone/iPad. Did you mean they ripped off iOS? In which case some examples of innovation that was not obvious and which Apple did before anyone else and which Google ripped off would strengthen your argument.
Again, that idea would unduly punish the little guy and have no real affect on the Global Megacorp. I'd rather see fees incrementally increase the more active patents you have, so that companies could no longer hold hundreds of patents, they would be forced to focus on the ones that were actively generating profit for them and not hoard them for the purposes of stifling the competition or to sell them off at a later date. The benefit of this system is that the little guy could hold a handful of patents sufficient to get his business generating a profit, and as it grew he could choose to sell off or retire patents he no longer needs while retaining the core for the usual period. There would still be flaws I'm sure but it seems like it would help solve some of the issues (and if companies were happy to pay the ridiculously high fees it would feed back into the patent system and perhaps help pay for some proper quality control).
Actually no. The figure that in the end, once they have the system tamed, they will be able to do whatever they want by arranging licenses at non-crippling prices. This will drive up prices in the market overall, but since it will eliminate smaller competitors it will mean more money coming to the current incumbents, MS, Apple, Oracle etc.
AC, on the other hand, might lose all sorts of useful products that might be useful to his life. Theoretically, even, he might lose the cheap long battery life navigating phone which will get him out of a snow storm one day. Alternatively, what about the portable stroke diagnosing Android based medical OS that a small embedded systems company might develop but now won't for fear of patents. He might die from this, whilst Microsoft is at most lose a small amount of profit to lawyers and probably guesses that on average they will win.
=~ s,(.*),<sarcasm>$1</sarcasm>,g if any_point_you_wish();
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.
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".
Android prototypes before iPhone's introduction were all Blackberry ripoffs. Google changed course after the iPhone and went for the basic design of all touchscreen smartphones now.
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.
Intresting... I for one do not believe that this is how people understand/see the meaning of obvious.
In fact I had to re-read your post couple times, I was not sure if I had read correctly as it seemed so absolutely silly ;) No offense meant...
In capitalist USA corporations control the government.
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