The Mark Cuban Chair To Eliminate Stupid Patents

l2718 writes "The Electronic Frontier Foundation announced today a large donation by Mark Cuban and Markus 'Notch' Persson to the EFF Patent Project. Notably, part of Cuban's donation is for the creation of the 'Mark Cuban Chair to Eliminate Stupid Patents' (the first holder is current staff attorney Julie Samuels). Time will tell if the new title will help her advocacy work. Cuban said, 'The current state of patents and patent litigation in this country is shameful," said Cuban, owner of the Dallas Mavericks. "Silly patent lawsuits force prices to go up while competition and innovation suffer. That's bad for consumers and bad for business. It's time to fix our broken system, and EFF can help.' Notch added, 'New games and other technological tools come from improving on old things and making them better – an iterative process that the current patent environment could shut down entirely. '"

Comments

Now a fan

[EmperorOfCanada]

Never was a fan of Mr. Cuban; now I am a huge fan. Thanks.

One of the qualifications of a patent is that it is non-obvious to a professional in that industry. That is pretty well ignored when most patents that I see litigated are 100% obvious to people well outside that area. Keyboards on a cell phone for texting. Wow that must have take a room full of geniuses working since Edison to work out that combo. Sweeping gestures on a touch surface; I bet only one person in history would have ever come up with that one. Backup sensors, never would have thought about people wondering if they would crash into something while backing up; that one is nearly as ingenious as putting rear view mirrors into cars.

Then you get the best ones where everybody on both sides agree the patent is total shit, but do you want to risk a jury not agreeing, so let's settle. RIM settled for a zillion dollars on a patent that then got thrown out.

So if I were to modify the patent system I would suggest, No software patents, you build software or you don't, only two people can hold a patent, the inventor or a company that actually builds significant quantities of the patented product. No patent holding companies. Change the patent lawsuit process. First is you name a company in a claim. Then the company has 1 year to to get your patent tossed. The patent people must complete a full review within that year and if they don't the patent is tossed. An appeal of the patent itself can be brought before a jury but in this case a jury of peers must be at least half people in that industry. Patent awards must be severely tempered by actual gains. And lastly patents need to have way shorter lives. This life must be partially based upon active product sales. So a patent would give you say 5 years to get to market. But once sales start you have another 5 years of protection. Then its out. So if apple comes up with a cool new antenna and immediately puts it into their phones they can't deny the consumer that innovation in other products until 2032 just 2017.

But if I could have any two rule changes it would be that only inventors and genuine producers can hold patents and no software patents.

Re:Now a fan

[steelfood]

Patents should be granted based (in addition to the current prior art and novel conditions) on having a working device originating from the applicant exhibiting the behavior to be patented, and some ability to purchase a product that exhibits this behavior (they don't necessarily have to be the same). The patent then covers products (which can be a component) that exhibits this behavior.

This way, software running on a general purpose CPU cannot be patented, because the behavior runs on somebody else's product (i.e. fails prior art test). Likewise, genetic modifications cannot be patented, as the organism would be a product of its parent(s), and not of the applicant. However, a novel way to insert genes is patentable (the product being the device actually performing the gene insertion). If, however, the method is actually some kind of natural process, again, it fails the prior art test.

The patent pending process would be used for patent applications that have passed all other tests but does not have a working device and/or a method of sale for said device. There would be a window between these, which could be as you suggested, five years. In fact, applications that are in this state can be transferred from entity to entity, so that the inventor has the ability to sell the patent within this window without needing to incur the cost of making a product and selling it.

Then, patents should be up for renewal after some time, at which time the only condition for granting the renewal is again, having a product exhibiting the patented behavior for sale.

Patents just change the nature of advances

[trout007]

I think that patents do not increase technological advance but only change how they are released. If patents did not exist there would always be pressure to make a better product. This would happen in smaller but quicker steps. Patents don't increase the rate of innovation. What people do is hold back releasing products until the advances are enough to get a patent. This results in larger but less frequent advances. In the modern world there is no reason for any patents. If your technological advance is sufficiently large you will gain a natural monopoly as the competition tries to catch up.

Re:No no no. Wrong target. Again.

[ciaran_o_riordan]

> Jpeg and mpeg

Nonsense. Patents might have funded R&D in one building, but those patents blocked R&D in every other building.

In the 90s, everyone was after image and video compression, there were piles of people working on it, or wanting to work on it. Studies show that software patents caused money to be diverted *away* from R&D (toward patent defence, defensive acquisition etc.).

http://en.swpat.org/wiki/Studies_on_economics_and_innovation
http://en.swpat.org/wiki/An_Empirical_Look_at_Software_Patents

And if you want to fund researchers, just abolish software patents and suddenly you free up a few billion in application fees, maintenance fees, freedom to operate search fees, defence costs, out of court settlements, licensing fees...