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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."
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.
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.
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.
I think patents make a lot of sense, for some things and not for others.
On balance, there are a lot of really bad software patents, simply because you can sit down with any one of a hundred people "skilled in the art" of whatever area of software and ask them "is this obvious?" and they will almost always say yes, though when you ask "why hasn't it been done before?" the answer comes back a little more murky, usually something about it just not having made sense before because of the user base or available hardware or whatever, and during the period of 1995-2005, the patent office seemed to be in rubber stamp mode for software.
If you go back to something like barbed wire, there were probably a half-dozen wire manufacturers crying "oh, that was so obvious, we were about to do that" when the patents issued, but today with software, you literally have millions of individuals who are capable of implementing these things that are getting patented - it's a different scale, and the standard for obviousness and prior art should be equally higher.
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.
That thought did run through my mind, but I really do not care. I hate software patents because they screw over the "small business" everyone seems to be so worried about.
Lets just say I write some code, this code turns out to be a part of a piece of software for a small company. The small company releases it and 5 years later are sued because the code infringes on a patent that no one knew about.
The funny thing is, the code was simple enough that I could have written it a different way avoiding this issue. But because the small business didnt have lawyers out the butt to find this out.
The question I wonder is, did the company reverse engineer the software to find out? Isnt that illegal as well? Why were they doing that?
Ah, the old Clockwork Orange argument: an action isn't good without good intent.
When it comes to the patent wars, I think those on the losing end of things are bound to be the ones to petition for reform. We might as well support them, regardless of what drives them to this position.
"From the depths of my skeptical and rationalist soul, I ask the Lord to protect me from California touchie-feeliedom."
Microsoft makes big money using its patent portfolio for lawsuits and FUD surrounding Linux and Android so it has no incentive to push for reform that makes those patents easier to challenge, harder to get or harder to sue with.
You forget that Microsoft also pays licensing fees to other companies for the use of their patents in its products (IIRC, one of them is Oracle's patent on JIT compilation that they've used against Google). You need to look at the balance of those fees to see whether it is profitable for the company. Then also account processing fees on company's own patents - building up a portfolio of your own is not free, and it is necessary to be able to retaliate. Indeed, the latter is the biggest reason why no-one's really happy about it - it's not just about being patent trolled, it's also about all the time and money wasted to keep on par with everyone else in the patent MAD game.
To the best of my knowledge, pretty much no tech companies that actually produce something are in favor of software patents as they stand. Most would prefer some reasonable middle ground (i.e. keep patents, but significantly raise the bar of what's patentable), but I think that many of them would ultimately prefer no patents to the current situation if those were the only two choices.
< sarconal >
... uh... why?
/sarconal >
Somehow, when I read of all this patent fury, I think of the kids who got to the playground first and "put dibs" on all the playground toys. They could extort other kid's lunch money to play. The kids who got there first liked this arrangement and bribed the teacher to let them do this, and the teacher would enforce their "rights".
Problem is some of the other kids started building more stuff that wasn't under control of the kids who had the "rights" to the existing stuff. But how to you claim rights to keep other kids from doing it?
Simple! Laws already exist for Property. Call it Property!
Now, we have property tax, but we want to make sure that this new property can be claimed, yet we shouldn't be taxed on it because
With today's sore need of government revenues, why isn't this taxed? I own a house. I pay over 2% of the market value of my house every year for tax.
Wouldn't this stop the patent trolls dead in their tracks if each patent was taxed on the value its owner assigns to it? In the event of an IP "violation", a property owner can sue up to the value he placed on his IP, at which case,upon paying the IP holder his valuation, the sue-ee ends up holding the so-called property and he is free to value it at whatever he thinks its worth.
We love to privatize the gains and socialize the losses.
Stuff like this will get the people benefiting from our method of protecting monopolies to help pay for the people deprived from building things. Think of it as one of the costs of living in a society where armed police will enforce highly profitable monopolies and keep competition at bay. The American Way. Just as pioneered by Al Capone.
The American Way will work as long as we control the world's reserve currency, and can depend on the fruit of our printing press to exchange for our needs.
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"Prove all things; hold fast that which is good." [KJV: I Thessalonians 5:21]