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Why There Are Too Many Patents In America
whitroth writes "The judge who just dismissed the lawsuit between Apple and Motorola writes a column explaining what he considers to be reasonable uses of patents, and unreasonable ones. One of his thoughts would be to require a patent holder to produce the patented item within a certain time, to cut out patent trolls."
It would also cut out all software patents lol
who worked for a company that got sued by a patent troll for some really insane email to fax patent from the 1990s that would NEVER have been a commercial product, I concur.
Make it, sell it, or the patent is tossed. Give them 3 years.
Sounds reasonable, but might be a bit of a hassle if your company just stopped producing that part of equipment for a variety of reasons. What about checking on the whole company to see what kind of business they are in? It would then be easy to see what kind of patents would be reasonable for that business to hold.
The prime example of an industry that really does need such protection is pharmaceuticals
This is not the example I would have chosen, considering the way Big Pharma has tried to use its patents to prevent third world countries from giving their populations live-saving medications at affordable prices:
http://www.msnbc.msn.com/id/18490388/ns/health-aids/t/brazil-break-merck-aids-drug-patent/
Palm trees and 8
How so?
What is producing? Many patents can be implement with a couple lines of javascript or similar. So a troll would just need to have a coder write a proof of concept implementation, put it on the troll's production server. And voila, it's produced.
For easy combination of hardware and software, you can probably do something similar. Have a geek put together a prototype from a PC or tablet, some software, put it on a website for sale for 5000$. Make sure to keep a prototype that works.
I am not sure that would be really onerous to patent trolls as apparently they are getting away with 29 billion dollars every year.
Why are there too many patents in the USA? because the country is owned by lawyers?
Something doesn't work: find somebody to sue! Not sure if whether to sue? A lawyer will recommend you do! Got an idea which might be worth a couple of dollars, keep you fed for a couple of months? patent it and claim anybody using the idea is putting you out of the equivalent of the GDP of an average European country!
Where do these people get the figures from?
Maybe that's not the case but it looks like it from outside ;-)
I do not find many people that disagree with the idea of patents: Namely, that you publish how something works, and then for a limited period of time, you are allowed exclusive rights to sell that something. Then everyone is allowed to do it. When the patent system was first invented (pre-industrial era), new inventions came out every few years. The steam engine, which became the locomotive, which became the combustion engine, which became the car, etc. Technological progress from decade to decade wasn't that fast. Ford created the assembly line, and 14 years later, it was still a novel concept. Today, much of the equipment and processes we had a decade ago isn't worth much more than scrap. 10 years is a very long time. But patents still have the same timeframe; 7 to 14 years. 14 years ago, broadband internet was a luxury item only the rich and a few people lucky enough to be in the right neighborhoods could get... Today, it's just assumed you'll have access to it, and at a reasonable price.
The patent system needs to take into account the industry in which the patent's primary use is: Metallurgy, for example... not exactly a fast-moving industry. Software design... very fast moving industry. It's stupid that the time limits are the same for a new computer algorithm, or a new metal deposition technique.
The other part of this is the originality of the invention; A hundred years ago, every invention was novel, because few people had the resources to research, prototype, develop, and market something new. Today, there are hacker spaces in most metropolitan areas. Anyone with an idea for a new idea, process, or concept, can plunk down a few thousand and develop a new invention. A lot of it isn't even original; it's repurposing technology designed for a different use. And that's where the patent system fails miserably -- today, they take a patent for encoding binary data over copper wires (original idea), and when it expires, they submit a new patent for encoding data over the internet. Same tech. Same concept. Slightly different application. New patent. BZZZZT! No. No new patent should be given. Only truly original, game-changing technology, something that advances the state of the art, should be awarded a patent. Otherwise, it's just re-engineering... anyone with a basic grasp of the concepts could do it.
Fix those two problems, fix most of what's wrong with the patent system today. Most.
#fuckbeta #iamslashdot #dicemustdie
I definitely wouldn't have used Big Pharma as my example, since a large portion of the research they benefit from is publicly funded.
Instead, I would have pointed out individual inventors, like my own father. Without the patents he holds on his inventions, a large, well-funded corporation could easily steal his idea, mass manufacture his product, and essentially use his own invention to drive him out of business without so much as breaking a sweat.
An enigma, wrapped in a riddle, shrouded in bacon and cheese
Just cap the number of patents issued each year (to say, 2000), and develop a much more thorough review process to ensure that only the most novel, useful and non-obvious applications are approved. Every patent we issue represents an increased burden on our legal system and a roadblock to other inventors who need to worry about infringing upon it, so it makes sense that the government shouldn't be making an open-ended offer to protect everything that can be protected.
This also means we wouldn't have to continue the futile search for a consistent set of guidelines of what constitutes "novel, useful and non-obvious". Instead we can just settle for deciding whether one invention is more novel, useful and non-obvious than another invention, which should be much easier.
pi = 3.141592653589793helpimtrappedinauniversefactory7
the thing to take issue with there is the policy of expanding US- and European-style patent law worldwide.
Pharmaceuticals and chemicals are the prime examples of industries where patents are not only valuable, but also generally thought to be essential to innovation. Posner's suggestion of having different patent terms for different industries is not news, that idea has been circulating for decades, and probably longer. It's something that he's actually endorsing it in public, I guess.
The standard IP hack response to this proposal is that it would be too hard and costly to clearly define what industries and inventions are eligible for patents.
"Anyone who [rips a CD] is probably engaging in copyright infringement." - David O. Carson
Judge writes:
One of his thoughts would be to require a patent holder to produce the patented item within a certain time, to cut out patent trolls.
Why this will NEVER happen:
1) The United States Supreme Court recently ruled that politicians can accept an unlimited amount of lobbying money and they don't have to tell anybody about who is paying them off.
2) The biggest multi-billion dollar companies are in the patent troll business (i.e. Microsoft and Apple, to name just two such companies)
I am somebody who is very interested in open source operating systems and software, but I will NEVER volunteer my free time and expertise to help in such projects because Microsoft is forcing companies to way them money for MY hard work. I don't work for free, and I won't be giving Microsoft my free labour, so no open source software from ME!
References:
http://arstechnica.com/tech-policy/2012/07/two-vendors-pay-microsoft-for-the-right-to-sell-cheap-android-tablets/
It would be easy to blame the editor, but cut 'em some slack. The typo checker was shut down due to a patent dispute filed by Apple for the way it used rounded letters.
well on the other hand, drug patents is still interesting because between an idea and an actual drug, there are years of research, clinical studies and certification, all of which cost a lot, and a high risk of failure/rejction (out of several idea, only a few drug see the light). (that also the indirect reason why drugs are so expensive: only big pharma can afford the cost, the efforts and risks to developp drugs, therefore it's not a free market but an oligopoly, and thus the few players can practice the bat-shit crazy prices they want and rip tons of money)
on the other side of the spectrum you have software development, whereas the difference between an idea and a proof of concept implementation is about 1 week-end of intense coding. Maybe two if you need some preliminary datamining or pre processing. But anyone with half a brain and a good idea can produce something with minimal costs (time, hardware, etc.)
the time requirement before a "use it or loose it" dead-line should take into consideration the relative ease or difficulty in releasing a proof of concept.
"Sufficiently advanced satire is indistinguishable from reality." - [Tips: 1DrYakQDKCQ6y52z6QbnkxHXAocMZJE61o ]
[quote]The prime example of an industry that really does need such protection is pharmaceuticals. The reasons are threefold. ...
Second, and related, the patent term begins to run when the invention is made and patented, yet the drug testing, which must be completed before the drug can be sold, often takes 10 or more years. This shortens the effective patent term, ...[/quote]
Huhwhat? Big pharma needs patents because they can't exploit the current patent system enough? An article that starts off which such a blatant example of circular reasoning isn't something we should give much credence to, even if the rest of it validates our opinions.
When information is power, privacy is freedom.
How about this concept. Currently, the default assumption is that anything can be patented. Devices, processes, visual styles, anything. There are a few things that explicitly aren't allowed to be patented (such as mathematical algorithms - yes, laugh everyone), but as long as something doesn't fall into one of those categories, and meets some very minimal requirements (being original, useful, and non-obvious to a patent lawyer), it's patentable.
Let's reverse it. By default, things cannot be patented. The government shouldn't give out monopolies by default. Then we should consider specific categories and decide whether there's an overwhelming social interest in letting that type of invention - and only that type - be patented. And we should use a very high standard for making that decision. If there's any uncertainty in whether patents for a category of invention would really help society, we should err against giving out monopolies.
"I'm too busy to research this and form an educated opinion, but I do have time to tell everyone my uninformed opinion."
We need this; use your patent or lose it... period. I understand rewarding an inventor who has made the world a little better through invention by giving him or her (or it, as the case may be) the initial windfall of profit from it... but sitting on patents as a means of thwarting competition, et cetera... should be criminal for the damage it does the world.
If you want pharmaceuticals to be developed by private industry, then patents are essential.
However, pharmaceuticals are also a poster child for bad patents because we don't really have a free market in drugs; drugs have a few large buyers, and the largest is the government. This means that drug prices are subject to rent seeking and price manipulation. In addition, drug companies have little incentive to explore finding cheap and effective cures, they want expensive long term maintenance drugs for lifestyle-related illnesses of the rich; in different words, for pharmaceuticals, market incentives and desirable outcomes don't necessarily coincide.
So, although patents are quite effective at financing drug development in the narrow sense, they tend to encourage the development of the wrong kind of drugs for the wrong kind of people. It might be cheaper for everybody to drop patent protection for drugs altogether and have the government and researchers choose what drugs to develop and then place them in the public domains after development.
And agree with it?
The way I would have the patent system work, were I in a position to change it, is thus:
A patent application would grant five years of exclusivity prior to implementation. If the company implemented the patented idea before the five years expired, this period would end.
The next phase would be a further five years of market protection. No company would be permitted to sell a product or service using this patent for a further five years from market launch of the patentor's idea, without paying appropriate royalties or licensing fees.
If the first period expires without a marketable product being released, nobody gets the market protection. This cuts down on patent-trolls who just store up patents for later weaponisation, and encourages constant innovation and development. Five years is a huge lead time to have on your competition in the market, huge, and to try and snag this five year lead, developers will always want to be the one to launch the next big thing.
Admit it. You post strawman arguments as AC so you get modded Insightful for refuting them, rather than Troll
What Posner is suggesting is called a working requirement, and many countries have it already (e.g. Turkey and India). Working requirements are necessarily so full of exceptions and holes that they are almost completely ineffective. There are many legitimate reasons why a patentee might not be able to produce the patented invention (beyond, perhaps, a prototype or demonstration). The patentee may need additional funding. It might need regulatory approval. It might be waiting for upstream suppliers. It might require an as-yet uninvented technology to make the invention practical or profitable. The market might not exist yet or might not be large enough to make the invention profitable. It might be building large, expensive factories. It might be negotiating with licensees or still looking for licensees. The list goes on.
So, you might say, let's just set a strict deadline and to heck with the excuses and exemptions. The result, then, is that the system favors technologies and industries with low startup costs and quick time to market and disfavors technologies and industries with high startup costs and long lead times. I'm not sure we want to encourage even more short-term thinking in business than we have already.
I do not find many people that disagree with the idea of patents: Namely, that you publish how something works, and then for a limited period of time, you are allowed exclusive rights to sell that something. Then everyone is allowed to do it. When the patent system was first invented (pre-industrial era), new inventions came out every few years. The steam engine, which became the locomotive, which became the combustion engine, which became the car, etc. Technological progress from decade to decade wasn't that fast. Ford created the assembly line, and 14 years later, it was still a novel concept. Today, much of the equipment and processes we had a decade ago isn't worth much more than scrap. 10 years is a very long time. But patents still have the same timeframe; 7 to 14 years. 14 years ago, broadband internet was a luxury item only the rich and a few people lucky enough to be in the right neighborhoods could get... Today, it's just assumed you'll have access to it, and at a reasonable price.
The patent system needs to take into account the industry in which the patent's primary use is: Metallurgy, for example... not exactly a fast-moving industry. Software design... very fast moving industry. It's stupid that the time limits are the same for a new computer algorithm, or a new metal deposition technique.
I like this idea but let's generalize it a bit. Instead of trying to categorize by industry, a submitted patent must give an estimate of how time was spent to develop the technology and how much time would be needed to produce a product based on this technology. Patent duration would be some arbitrary but predefined multiple of this. Let's say "4". So patent_duration= (tech development time + product development time) * 4;
A cost estimate should also given and all of this information should be publicly visible in the patent itself.
Now, of course, people will try to game the system and say it takes 10 years a billion dollars. The catch is that if a competitor can document that they independently developed and productised the technology in greatly less time without massively increased budget, the whole patent gets thrown out. The safe plan is to be conservative with your estimates at the expense of duration.
This allows patents on time and capital intensive areas to remain long while Internet software patents practically disappear.
I hate software patents, I really hate software patents. They are a giant parasitical suck on the vitality of the tech industry but I believe there is one area where they are potentially good and that is in the really non obvious which is already a requirement for getting a patent; a requirement that seems to be obviously ignored. So if you come up with an algorithm that factors 1024 bit numbers with a 486 in 2 seconds then maybe you deserve a patent. If you make a one click checkout then holy smokes no patent!
Also there should be a limited transferability to patents. Some sort of rule that the only owners of a patent can be either the original inventor or someone who is equipped to implement it; basically no patent lawyers. As part of the reform there should be a requirement that the people named on the patent should get a percentage of any money made from the patent regardless of their relationship to the owners. So when the Nortel patents were bought for billions the people on the patents should have received a percent or two.
Lastly there should be a bureau of patent invalidation which has no relationship with the original patent office. All they do is quickly review and kill patents. The problem now is that after years of fighting in court and probable settlements the patent might be killed, too little, too late.
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Kudos for the judge! It is irresponsible to give exclusive rights to a patent holder (such as a pharmaceutical/biotech company) for a discovery and the see them sit on it for the next 20 years because the market for the potential product is less than 300 million dollars. Meanwhile, people die because no other company can use the discovery to make a product unless they pay huge amounts of money to the patent holder, which most startups cannot afford to do. This is an actual real life example, and the name of the company begins with A and ends in N.
For example, increase the threshold for obviousness, require better disclosures, etc.
You'd have thought that these would have already been requirements. But, sadly, you're far too correct.
And it is indeed scary to hear a judge make a ridiculous statement like this, when the real problems (and therefore solutions) are almost completely unrelated to what he perceives them to be.
Don't overlook the few words Mr judge puts in. A patent monopoly is a right to exclude other from doing. It is in no way the right to do yourself. It is at the very base of the patent systems, and it makes all the difference in the world. Trolls are only abusive users.
Human's normal behavior(like gestures) should not be patentable. There are like API (Google Vs Oracle). Gesture's implementation should be copyrightable.
"One of his thoughts would be to require a patent holder to produce the patented item within a certain time"
And thus you make patent the SOLE ballpark of big firm which can afford lose a few dollar setting up a quick-n-dirty item production, whereas the small guy, the garage inventor is royally screwed, because he won't be able to produce the items, and the industry can dictate their term while buying the patent from him, when not outright stealing, because he can't protect himself due to the production requirement.
In fact I contend there is no way whatsoever you can both protect the small inventor and avoid patent troll. The only way out is to enforce non obviousness and repell software patent outright.
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If you cut out "non-practicing entities", this means that the small home-based inventor without manufacturing equipment of his own is cut off from being able to benefit from his inventions.
But that's the only one dependent on patent protection. All the others already get their rewards in the form of first-to-market, brand recognition, turnaround.
If you disable patent protection for the only case where it is essential for promoting progress, then it is better to abolish it completely.
The patent system is sort of a lottery for society. Few cases where it makes a fundamental difference that would not otherwise exist, lots of small payments.
Now this judge suggests to stop excesses by in a scheme that involves abolishing the rare big prizes.
That's pointless. Even while this is the area where the patent trolls abound: if you stop that, you are better off stopping the whole system. It is a system establishing a time-limited monopoly and locks on competition as an enabler for further contributions to progress. Large manufacturing companies don't need such an enabler. The evil of locking competition out is not offset by a continuing contribution to progress that would otherwise be impossible.
If you stop patent law in the one area where it, however rarely, actually can enable the sustainability of progress for technology, why keep the rest? It's like entertaining a lottery without prizes exceeding the ticket costs, not just on average, but also in general.
Why change from a system that is rarely to be expected to benefit society to some that is sure not to benefit society? It gets rid of some of the worst offenses of the system and all its essential benefits.
It's like goldy and bronzy, only it's made of iron.
The patent is on the method of manufacture, since the chemical is not a discovery, it is a fact of nature.
A patent on how to make the drug cheaper than someone else will get a patent on that and therefore reduce their cost to produce. A patent on the chemical itself increases the cost of the drug.
We want to provide incentive for the innovation, not the illness.
So it already works.
"Well actually, owning an IDEA is not something that a Patent, or even a Copyright grants"
However, they use vague wording and no proscriptive diagram (especially obvious in software patents: the source code is the proscriptive diagram, but go look for the source code of a software patent) to ensure that all the patent describes is the PROBLEM and therefore the IDEA there *is* a solution (without specifying what that solution is in detail enough to implement their specific version: you can't patent "a mousetrap" you have to patent an actual implemented moustrap and someone who has a better design still catches mice, but is its own patent) and then patents any solution that arises.
You really do need to read up on patents before you say crap like that.
What Posner is suggesting is called a working requirement, and many countries have it already (e.g. Turkey and India). Working requirements are necessarily so full of exceptions and holes that they are almost completely ineffective. There are many legitimate reasons why a patentee might not be able to produce the patented invention (beyond, perhaps, a prototype or demonstration). The patentee may need additional funding. It might need regulatory approval. It might be waiting for upstream suppliers. It might require an as-yet uninvented technology to make the invention practical or profitable. The market might not exist yet or might not be large enough to make the invention profitable. It might be building large, expensive factories. It might be negotiating with licensees or still looking for licensees. The list goes on.
Absolutely right. One important group to be aware of when we're discussing ways to defeat trolls are research universities, such as MIT, Cornell, USC, Harvard, Johns Hopkins, etc., which all do a lot of research and licensing of patents, but don't manufacture anything on their own, and yet are not what we think of when we think "trolls". Harming those universities - which rely on licensing revenue to fund their research - is not a good outcome.
One of his thoughts would be to require a patent holder to produce the patented item within a certain time, to cut out patent trolls.
This would not eliminate patent trolls so much as it would eliminate vague hand-waving patents which are really nothing more than glorified wish lists of features (often written by companies who apparently have no idea how to implement any of them). This would be great indeed, because it is exactly these vague unimplemented patents which companies (often trolls in fact) later try to expand and enforce against enormously broad swaths of unrelated products--products that the patent "inventors" never even envisioned. Requiring implementation would both weed out people who do not actually invent anything beyond a wish list, and would dramatically narrow the scope of some patents.
http://www.abajournal.com/news/article/judge_posner_hits_goofy_trend_in_gop_says_hes_becoming_less_conservative/?utm_source=maestro&utm_medium=email&utm_campaign=weekly_email Here's a short piece in the ABA Journal, wherein Judge Posner mentions the same topic, and also says some interesting things about why he, despite having once been something of an inspiration for people like Justices Rehnquist and Scalia, is now becoming disenchanted with the Conservative movement. As usual (at least IMHO), he speaks with wit and insight. For those of you not familiar with him, Posner is a bit of a rock star in the legal profession, a brilliant, prolific author, and one of the driving forces behind the influential "Law and Economics" movement. When he speaks, even if my gut reaction is to disagree, I listen.
Cisco
HP
Dell
Sony
Amazon
Ebay
Asus
Alienware
or perhaps:
RedHat
Microsoft
Apple
IBM
or
Toyota
Honda
Ford
Kia
Mercedes
BMW
Do those sound familiar? Big names *do* sell software and electronics just like they sell shoes. There are plenty of people who buy Cisco because of brand-reputation. Maybe they'd do just as well with something from Juniper or CoyotePoint, but they trust the Cisco name. Of course, today's actions do determine tomorrow's reputation, but often enough tomorrow is quite far away.
Beyond that, there's an expectation of quality associated with a name (and often with the price). People expect their $$$ brand diamond jewelry to contain real diamonds. They may expect their high-end brand-name shoes/clothes to last longer than certain other brands.
Dell did really well on their name for awhile (Dude, you've got a Dell), even if inside it wasn't better than many competitors. Companies sell financial systems, operating systems based on brand as well.
Hell. People by snot and butt-wipe paper based on brand. They buy pickles, mustard, and ketchup based on brand.
Don't kid yourself, brand means a lot in *MANY* industries, including IT.