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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.
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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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.
While I agree it is a shame, the reason people say it is a necessity for pharma, is the company that created that drug probably spent hundred of millions of dollars and a decade or more of R+D and testing to produce that drug. I'm not saying its right, but that's the way things are at the moment. If they couldn't get a monopoly on it then once they had spent all the money creating it, some other company would probably reverse engineer it and sell it for a fraction of the price. The end result would be that research and production of new drugs would grind to a halt because companies would most likely not get a return on their investment.
What's with the term "Big Pharma"? Is there some sort of mom-and-pop pharmaceutical company that is the alternative to Glaxo-Smith-Kline? Aren't they all big? Isn't there just "Pharma"?
"Our two-party system is like a bowl of shit looking at itself in a mirror." - Lewis Black
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.
A noble picture of patents, but an unrealistic one. The world's major patent holders are not individual inventors, they are wealthy, powerful corporations, and their patents are keeping "the little guy" out of the game.
The problem is that we have too many patents in too many fields, and we have basically forgotten the original restrictions on what was patentable. When algebra, biology, and ways of doing business can be patented, you know something has gone terribly wrong. The bar is too low, the patent examiners are too overworked, and the system is starting to discourage useful innovations that could benefit society.
Palm trees and 8
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.
I don't necessarily disagree. Again, the IP hack response is that without the patent and profit, there is no new drug from which to benefit, so the question is irrelevant. In theory, decent health insurance coverage is supposed to solve the problem of access to the drugs, too.
But as you've pointed out there are other funding mechanisms that could potentially work, and might even produce better results. After all, the end result of our current patent system is not that life-saving drugs get made, it's that profitable drugs get made (or at least research for profitable conditions gets done). If they happen to be life-saving, that's nice. Research on drugs for tropical diseases languishes. We've noticed it and try to supplement the incentives of the patent system with prize funds, grants, non-profit money, and the Orphan Drug Act.
The reason it is destined to fail on a large scale is probably because of political pressure from pharmaceutical companies loathe to see anything significantly alter the current system.
"Anyone who [rips a CD] is probably engaging in copyright infringement." - David O. Carson
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.
What's with the term "Big Pharma"? Is there some sort of mom-and-pop pharmaceutical company that is the alternative to Glaxo-Smith-Kline? Aren't they all big? Isn't there just "Pharma"?
There are a lot of researchers who don't work for those companies. Trying to do things like develop a cure for cancer, HIV, diabetes... things Big Pharma won't do because the cocktails of medications to treat the aforementioned diseases bring in a lot of money. And that money would go away if there was a way to cure those people, instead of just treat them. I can show you stacks of internal memos and documentation showing that the major pharmaceutical companies purposefully stall and delay research into cures, and there have been several cases where they've sued to prevent universities and private researchers from pursuing testing of certain chemical compounds because they infringed on a patent -- after research showed dramatic and sustained improvements in a patient's health that reduced or eliminated their dependancy on already-existing drugs.
It's called Big Pharma because they're not about making sick people better, they're about making money off of sick people -- as long as they stay sick, Big Pharma stays profitable. None of this nonsense about making lightbulbs that last a hundred years... we all know what happened to the company that solved the problem too well.
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And agree with it?
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.
Someone on slashdot recently linked a great TED talk about the general lack of IP protection in the fashion industry, and how it has actually worked out really well for them. Trademarks protect your profit margin, but you can't prevent anyone from making a shoe.
I see software as being somewhat similar. I should be able to make an online store without violating someone's IP, but I shouldn't be able to call it "Amazon".
http://www.ted.com/talks/johanna_blakley_lessons_from_fashion_s_free_culture.html
To construct this, I built it the way you would the rules of a game, or the rules text on, say, a Magic: the Gathering card. Sometimes i think game designers should write the law, because their job is to ensure everything interacts predictably.
Admit it. You post strawman arguments as AC so you get modded Insightful for refuting them, rather than Troll
Wrong!
Duplicating existing drugs is easy. It's not completely trivial, but usually doable by a small lab in a short amount of time. And most of synthesis steps are so generic that they can't be patented in themselves. Their combination can be patented, but it would be trivial to work around it. Oh, and effective patent protection for a drug is about 10 years if you consider the time for clinical trials and regulatory approval.
I can show you stacks of internal memos and documentation showing that the major pharmaceutical companies purposefully stall and delay research into cures
Please do. The biggest known case was the use of antibiotics to treat ulcers. But that was about 50 years ago.
"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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