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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."
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.
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
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.
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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
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
If you stopped producing the object what good does it do society if you're allowed to keep the patent? Other companies should be able to make use of the patent if you don't make use of your government granted monopoly.
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.
So a troll would just need to have a coder write a proof of concept implementation
fair enough, at least that's far more effort than they currently have to go to. Once they've done that though, you have a defence that you are not infringing - if you perform your task in a different way.
See, there are thousands of mousetrap patents in the US patent files, but in software terms, 'catching a mouse using a device utilising mechanical or electronic or other means' is what is patented, which stops anything remotely related to the vague idea that is part of the patent.
So making the patent holder create a working version would help a lot. Patenting GSM radio networks, for example, would be valid. Patenting a way of sliding an icon to unlock a screen would also be valid - but you could create your own slide-to-unlock as long as it used a different mechanism, just like people can continue to patent their own ways of catching mice.
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.
"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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See, there are thousands of mousetrap patents in the US patent files, but in software terms, 'catching a mouse using a device utilising mechanical or electronic or other means' is what is patented, which stops anything remotely related to the vague idea that is part of the patent.
Not really. I mean, sure, people rant about Amazon's "one-click" patent, but it really isn't a patent on clicking once. That's just the title, and it barely reflects the claims.
Patenting a way of sliding an icon to unlock a screen would also be valid - but you could create your own slide-to-unlock as long as it used a different mechanism, just like people can continue to patent their own ways of catching mice.
You still can. Like "one-click", "slide-to-unlock" isn't actually a patent on sliding something to unlock something else. That's just the colloquial description. The claims recite:
1. A method of unlocking a hand-held electronic device, the device including a touch-sensitive display, the method comprising:
detecting a contact with the touch-sensitive display at a first predefined location corresponding to an unlock image;
continuously moving the unlock image on the touch-sensitive display in accordance with movement of the contact while continuous contact with the touch screen is maintained, wherein the unlock image is a graphical, interactive user-interface object with which a user interacts in order to unlock the device; and
unlocking the hand-held electronic device if the moving the unlock image on the touch-sensitive display results in movement of the unlock image from the first predefined location to a predefined unlock region on the touch-sensitive display.
Want an easy way around it? If you don't move the unlock image during the gesture, you don't infringe.
Want an easy improvement? If you don't place the unlock image at a predefined location, but instead place it at a randomly selected location on the display (helping to prevent pocket-unlocking), the patent doesn't anticipate that implementation, and you also don't infringe. Or you could start at a predefined location, but have a target that is randomly placed. Same deal.
The problem with a lot of the anti-patent complaints is that they don't bother reading the patents they're complaining about, or reading any of the laws having to do with them. There are problems in patent law, and there are avenues for reform, but this isn't one of them.
You can actually take a chemical which is used as a drug and use it in another field (for example, in a semiconductor development) without running afoul of patents. That has actually happened several times.
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.
You don't get it, do you? For most drugs the price of its manufacture is only a minor part. It's _EASY_ to produce most drugs - that's why generic drug companies can quickly flood the market once patent protection expires.