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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."
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.
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.
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.
< 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.
<
"Prove all things; hold fast that which is good." [KJV: I Thessalonians 5:21]
The system you describe is utterly ridiculous. It requires that anyone creating a new product broadcast detailed information to their competitors, while also requiring patent holders to maintain a constant vigil where they have to read the perhaps 10's of thousands of posts day to see if anything from there portfolio is being infringed. Do you realize the manpower that would take? For a company with a large number of patents they would require dozens or even hundreds of reviewers, each of which would have to have sufficient education to have the entire portfolio memorized, while also understanding the detailed technical specifications of myriad products.
It would be far easier to simply modify the patent system so that obviousness and prior art is given much more weight patent examiners.