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Study Suggests Patent Office Lowered Standards To Cope With Backlog
An anonymous reader points out a story at Ars about how the "significant reduction" in the backlog of pending patent applications may not be all that it seems. "...a new study suggests another explanation for the declining backlog: the patent office may have lowered its standards, approving many patents that would have been (and in some cases, had been) rejected under the administration of George W. Bush. The authors—Chris Cotropia and Cecil Quillen of the University of Richmond and independent researcher Ogden Webster—used Freedom of Information Act requests to obtain detailed data about the fate of patent applications considered by the USPTO since 1996.
They found that the "allowance rate," the fraction of applications approved by the patent office, declined steadily from 2001 and 2009. But in the last four years there's been a sharp reversal, with a 2012 allowance rate about 20 percent higher than it was in 2009."
Dumber, faster, patent trolling. I love it.
There's another perfectly reasonable explanation for this.
1. Allowance rate declines from 2001-2009 as standards increase.
2. Fewer marginal patent applications submitted due to increased standards.
3. Allowance rate increases as average quality of patent applications increases.
Is it possible there is just more innovation in the past 4 years? I would argue 'progress' is exponential, not linear. Regardless, patents such as this probably fall in the lower standard category, yet is was patented in the 90s.
Some people die at 25 and aren't buried until 75. -Benjamin Franklin
Those bastards!
They just gave me a patent on clearing backlogs by relaxing standards, and they're not paying me to use it!
(-1: Post disagrees with my already-settled worldview) is not a valid mod option.
Does this really surprise anyone?
The existence of patents do not "hamstring the march of human knowledge." I can't speak for everyone, but the fact is that there are a lot of creative people out there who don't create just for the joy of creating, or for altruistic reasons-- they do it for the money. I'm sure that altruism and personal accomplishment are high on the list, but the fact remains that if an invention is beneficial and its development was performed morally, we shouldn't care why it was done. And not having patents available to provide the creator with a REASONABLE period of time in which they can exclusively profit from their invention, there would definitely be fewer creators-- and fewer creations. I can guarantee that NOT having patents would not motivate more creators-- you can always eschew patents entirely and donate your inventions to the public domain as Benjamin Franklin did, or license the rights for free.
I can entertain discussion over how long a patent should be in force-- because in today's world they seem to be a bit lengthy. But I really can't fathom the side of the debate that would be OK with fewer inventions and fewer creators merely because of some perceived immorality or other rhetorical reason.
Nope. I know this is a shocking concept in our "everyone gets a trophy" world, but when you work hard and work well, chances are that you're going to get the jump on an idea before someone else does. It's a great personal accomplishment when people happen on great ideas independently-- and maybe worthy of non-monetary accreditation-- but while that may be personally fulfilling it's of no use to the rest of the world that benefits from progress.
Gamingmuseum.com: Give your 3D accelerator a rest.
It might imply something positive about the Bush administration, and that is not permissable.
Warning: this article may contain humor, sarcasm, parody, and perhaps even irony. Read at your own risk.
It is sickening in the extreme to think that it's possible to deny other people access to information, simply because you thought of it first.
It's worse than that. Patents don't deny access to information, but they curtail our freedom to help each other. And those who register patents almost never think of it first. Did Apple think first of a rectangular device with rounded corners?
As usual, Richard Stallman has a great solution:
We should legislate that developing, distributing, or running a program on generally used computing hardware does not constitute patent infringement.
This will work because a very similar law already works in the medical field. Just like surgeons, who can safely ignore procedural patents to save lives, programmers and distributors of free software deserve complete patent immunity because their work is entirely gratis, and benefits the whole world.
Wired article (gods help you if you don't use adblock and noscript).
Hamstringing the march of human knowledge is exactly what they are designed to do. For a limited time a person is granted a monopoly in exchange for sharing that knowledge. This slow progress, but in theory prevents the loss of that information. The concept is this trade off is worth that, in practice I don't believe it often is.
People don't create to get a pantent they create to make something they can sell or use. Without patents this would still happen, as the creator would have first mover advantage.
More likely this is a function of the internet, and the ability to search for prior art in a matter of minutes.
In the past a party looking to get a patent would go back and forth with the patent examiner at the USPTO a number of times, because the USPTO had a vast library of prior art that your average person doesn't have access to. Every time the examiner came up with prior art the patent would have to be rewritten to shrink it claims.
Now with the internet, anybody can search just about any database, this means the first draft patent will include more examples of prior art, a patent with less broad claims, and less for the patent examiner to object to.
A better measure of whether the USPTO is lowering its standards is the number of broad claims versus narrow claims in a patent. As well as the number of prior art examples cited in the patent, by definition if the prior art describes an aspect of the patent, that aspect is not patented, it is cited as a reference to what the patent DOES NOT cover.
Like...below zero? Hey, wait a minute! I need to patent that!
Please do not read this sig. Thank you.
smart companies aren't going to peruse patents that are frivolous and/or won't hold up in court.
Smart companies know the patent doesn't have to stand up in court, it just has to cost the competitor millions of dollars to prove it doesn't stand up.
Trolling companies know the patent doesn't have to stand up in court, it just has to cost their victim millions of dollars to prove it doesn't stand up in court so they'll pay a few hundred thousand to save money.
If I have been able to see further than others, it is because I bought a pair of binoculars.
It is sickening in the extreme to think that it's possible to deny other people access to information, simply because you thought of it first.
The default is to deny other people access to information because you thought of it first.
The patent system exists to help get the information into the public domain quickly, instead of having it kept as a trade secret for decades.
So when you're trolling on the patent system, try to understand its primary function first.
The problem is patent holders have forgotten the monopoly is supposed to be temporary, and then it's publicly available
First, the incorrect or misleading:
But in the last four years there's been a sharp reversal, with a 2012 allowance rate about 20 percent higher than it was in 2009.
It can also be looked at as 12% higher, since it went from about 58% to about 70% in that time. "20 percent higher" is misleading. "120 percent of the 2009 rate" would be correct.
Calculating the real allowance rate is tricky because inventors can submit the same application multiple times. "From the perspective of the patent office, a 'final rejection' doesn't get rid of an application," Quillen told Ars in a December phone interview. If an application is rejected, the inventor can make minor changes to the application and file it again. "The only way you can reduce your numbers and get rid of somebody is to allow the case," Quillen said.
There are a number of different ways to re-file applications, with names like File Wrapper Continuations, Continued Prosecution Applications, Requests for Continued Examination and Continuation-In-Part Applications. But in all cases, the upshot is the same: the applicant gets another shot at convincing examiners to grant him a patent.
These are talking about two different things, mainly because the journalist doesn't understand the distinction:
1) An application can be "finally rejected" by the USPTO (meaning that it was rejected on specific grounds, the applicant replied, and the Examiner wasn't persuaded and "finally" rejected the application on those grounds), and the Applicant can amend to narrow the claims and file a request for continued examination or a continued prosecution application (the same thing, but for design patents).
For example, say you were Toyota and were patenting the Prius, and you originally had a claim of "1. A car, comprising: four wheels, an engine, and a battery" and the Examiner comes back and says "duh, that's every car." If you tried to argue that you meant a battery running the engine, but the Examiner wasn't persuaded since that distinction isn't in your claims (and there's other prior art with electric engines), they'd finally reject it. If you then amended your claims to recite your novel planetary engine dual-powered transmission, you'd have to file a request for continued examination so that it could be considered.
It's not really "submitting the same application multiple times" but several iterations of narrowing the application and arguing that as narrowed, it's patentable, until it finally is narrow enough to be allowed.
2) New applications can be filed as continuation applications or continuation-in-part applications, but they're not the "same application" by definition. Continuations and continued prosecution applications have the same specification, but different claims. Like, say, to save money, you wrote a patent application that described two separate, but related inventions. Like say, a new machine for more efficiently turning horses into glue, and a new offset gearing system for use in that machine or others that has increased torque with reduced tension. You could file a single application describing both, but only claiming the horse part. Later, you could file a continuation application using the same specification and claiming the gearing system part.
This helps small inventors by not requiring them to file dozens of applications on day one, when they might be short of cash, but file one big one, then later file additional continuations as they're able to raise capital. Importantly, all of the applications have the same effective priority date for prior art, and any patents coming from the applications expire on the same d
From the viewpoint of an Examiner here's what happened:
1 - The allowance rate was artificially low in the Bush years because the appointed director implemented a "quality" system where all allowances were subject to stricter scrutiny, but rejections were not. When you can get written up and indeed fired because someone who doesn't actually Examine your technology glances at something and says "oh that's obvious" then you have to spend a few hours (which you have to make up in production later) explaining why it is not and how combining things in the way they say to just straight up wouldn't work and still wouldn't meet the claimed limitations, yet writing a shitty rejection will just get the a Request for Continued Examination filed which actually helps you out on your quota... yeah you can see why the Allowance rate plunged.
2 - Applicants amend more readily. The reasons vary: Some just took some time coming to grips with what KSR v. Teleflex actually meant; some decided after the markets went kaput and patents became less valuable due to changes to injunctions to stop paying for endlessly filing for continued examination; and some just wanted a patent quickly on their new product.
3 - Newly hired Examiners have gotten better at searching, so things don't go in circles as much. This probably leads back into #2
90% of it is #1. It is a pretty textbook case of focusing on some random arbitrary metric while ignoring the real effect it has.
Not so long ago:
http://yro.slashdot.org/story/12/11/20/1838248/uspto-head-current-patent-litigation-is-reasonable
Where does that leave my patent of exchanging oxygen and carbon dioxide across a thin, moist barrier in a rhythmic process?
That's our life, the big wheel of shit. - The Fat Man, Blue Tango Salvage
Until you can sue the USPTO for granting a bad patent, this will never change.
Obama's legacy: (N)othing (S)ecure (A)nywhere and (T)error (S)imulation (A)dministration
he existence of patents do not "hamstring the march of human knowledge." I can't speak for everyone, but the fact is that there are a lot of creative people out there who don't create just for the joy of creating, or for altruistic reasons-- they do it for the money. I'm sure that altruism and personal accomplishment are high on the list, but the fact remains that if an invention is beneficial and its development was performed morally, we shouldn't care why it was done.
I call BS. If there were no patent system, then inventors would bring their products to market anyways. Inventors don't bring products to market because the patent system protects them, they do it because if they don't, they are guaranteed not to make any money. Patents, like copyright are an archaic solution to a problem that doesn't really exist anymore, and possibly never did. A company that brings a novel product to market, will have at least a year before a competitor can copy it and bring the copies to market. This is all the protection an inventor should need. Anything more is a cancer to be removed.
On the other side of the coin, I can think of at least a few products which have not made it to market because of patents, and the inventors will not even try until the offending patents expire in another 10 years. For example, Touch sensitive trigger for paintball guns would be a very neat idea, but until recently were not viable because they required the paintball gun to use an electronic triggering mechanism, the patent for which was granted almost 20 years ago. The company that owned the patent was charging outrageous fees to use their technology, which was obvious technology to virtually every engineer that ever touched a paintball gun. Because of that one company and the patent system that supported them, paintball guns have remained largely in the dark ages for 20 years. The company itself long ago stopped innovating, and it wasn't until they went out of business under the weight of their own ineptitude that everyone else started making better products again. (They also managed to keep the cost of paintball equipment an order of magnitude higher than it should have been, and largely strangled the sport as a result).
Patents are bad. Most people with an IQ in the triple digits understand this intuitively, even if they cant put an explanation to it. They were designed so that novel inventions would end up being cataloged in such a way that the designs could be used for further development, but now they are used as a weapon to prevent companies from having to compete on their merits, and have far outlived their usefulness.
-=Geoskd
I wish I had a good sig, but all the good ones are copyrighted
The article made it sound like this more about the patent office being faster at responding to applications (even when rejecting them). And, faster rejections mean there's less likelihood of the filer abandoning their project. There was some dispute, but the counterargument in the article didn't wash w/ me.
I swear to God...I swear to God! That is NOT how you treat your human!
Sure it does. The full force of the industrial revolution was delayed by 25 years due to patents on the crankshaft. Back when James Watt was developing his improves steam engine. No kidding, its a matter of historical fact. So yes, it does hamstring human progress.
C|N>K
I call BS. If there were no patent system, then inventors would bring their products to market anyways. Inventors don't bring products to market because the patent system protects them, they do it because if they don't, they are guaranteed not to make any money. Patents, like copyright are an archaic solution to a problem that doesn't really exist anymore, and possibly never did. A company that brings a novel product to market, will have at least a year before a competitor can copy it and bring the copies to market.
What industry do you work in? Because in software, you can get a team to reverse engineer a product and crank out a copy within 3-6 weeks. And if you think that the first-mover advantage is all anyone needs, go talk to NimbleBit about Tiny Tower, or Slashkey about Farmville. And copyright doesn't protect those, because the copyrightable assets - the sprites, the textures, etc. - are all new.
But you're both right and wrong - the problem is not that inventors would sit with their thumbs up their butts and make no money if they couldn't have patent protection. The problem is that, instead, they would keep everything under NDA and trade secret protection, with more DRM and harsh licensing systems to prevent copies from ever falling into the hands of a competitor. And that problem was the specific reason for the existence of patents: the rulers of Florence granted the first patent to Brunelleschi in exchange for him publicly disclosing his invention. All of the merchants wanted access to it, and this was in the era where you hire mercenary guards to protect your stuff and/or raid your competitors' warehouses. Rather than have a bloody and expensive conflict, Florence gave him a time-limited monopoly, in exchange for teaching everyone else how to do his invention.
So, yeah, it's not an incentive to get people to invent. It's an incentive to get people to destroy trade secrets, because those really stifle innovation.
On the other side of the coin, I can think of at least a few products which have not made it to market because of patents, and the inventors will not even try until the offending patents expire in another 10 years. For example, Touch sensitive trigger for paintball guns would be a very neat idea, but until recently were not viable because they required the paintball gun to use an electronic triggering mechanism, the patent for which was granted almost 20 years ago. The company that owned the patent was charging outrageous fees to use their technology, which was obvious technology to virtually every engineer that ever touched a paintball gun. Because of that one company and the patent system that supported them, paintball guns have remained largely in the dark ages for 20 years.
Oh, no, 20 years! We might as well all go back to living in caves, because, clearly we are in a dark age of invention.
Also, if true, then your story is really about bad legal and economic advice, not patents. Damages for patent infringement are limited to a reasonable royalty, which, by definition couldn't ever be more than your profits. As you correctly noted at the beginning of your post, people do things that make them money. If you can bring a product to market and pay an outrageous 10% royalty on your profits, you're still making profits. If you don't bring the product to market, as an intelligent commenter stated, you "are guaranteed not to make any money". So, the reason for not bringing the tech to market was, at most, bad legal and economic advice, or much more likely, other reasons such as market size, cost of parts, etc.
Patents are bad. Most people with an IQ in the triple digits understand this intuitively, even if they cant put an explanation to it. They were designed so that novel inventions would end up being cataloged in such a way that the designs could be used for further development, but now they are used as a weapon to prevent companies from ha
It is sickening in the extreme to think that it's possible to deny other people access to information, simply because you thought of it first.
It's worse than that. Patents don't deny access to information, but they curtail our freedom to help each other. And those who register patents almost never think of it first. Did Apple think first of a rectangular device with rounded corners?
Of course not, but then, they never patented "a rectangular device with rounded corners". This whole bit of FUD is based on taking two words out of context in a list of features that Samsung could have changed to not infringe in the German design patent infringement case. Specifically, Apple said that their patent claimed A+B+C+D+E+F+G+H, etc. with one of those things being rounded corners. If Samsung changed any of them - not having rounded corners, but having every other bit; or having rounded corners, but not having a flush bezel - then they wouldn't infringe. And that latter one is exactly what they did with the Galaxy Tab 10.1N: a device with rounded corners that does not infringe Apple's patent... so therefore, the patent clearly cannot cover "a device with rounded corners".
As usual, Richard Stallman has a great solution:
We should legislate that developing, distributing, or running a program on generally used computing hardware does not constitute patent infringement.
This will work because a very similar law already works in the medical field. Just like surgeons, who can safely ignore procedural patents to save lives, programmers and distributors of free software deserve complete patent immunity because their work is entirely gratis, and benefits the whole world.
Note that Stallman's solution doesn't include either of those requirements, and therefore lacks the same moral justification.
with broader claims. now you CAN have the salad dressing that is also a shampoo! and a lift bridge! and a three-finger-salute sidewipe!
if this is supposed to be a new economy, how come they still want my old fashioned money?
It is sickening in the extreme to think that it's possible to deny other people access to information, simply because you thought of it first.
The default is to deny other people access to information because you thought of it first.
The patent system exists to help get the information into the public domain quickly, instead of having it kept as a trade secret for decades.
So when you're trolling on the patent system, try to understand its primary function first.
The problem is patent holders have forgotten the monopoly is supposed to be temporary, and then it's publicly available
You may be confusing patents with copyright. Copyright is the one that keeps getting more and more extensions. Patent term has only been extended twice, and the latter was just to comply with an international treaty and changed "17 years from issue (plus a 3 year backlog)" to "20 years from filing". That latter one was actually a really good thing - it killed submarine patents in one fell swoop, because you couldn't delay and delay and delay and have a patent get issued decades later on something that had then become the standard and then still have another 17 year term to exploit.
What industry do you work in? Because in software, you can get a team to reverse engineer a product and crank out a copy within 3-6 weeks. And if you think that the first-mover advantage is all anyone needs, go talk to NimbleBit about Tiny Tower, or Slashkey about Farmville. And copyright doesn't protect those, because the copyrightable assets - the sprites, the textures, etc. - are all new.
Did you seriously bring up crappy social games in a patent discussion? First of all, games are unpatentable, second of all, Tiny Tower was just a crappy redesign of Sim Tower in the first place, and finally, the whole "Trade Secrets and NDAs!" argument is nonsense since the whole business point of games is to gain as much public viewership/ownership as possible.
It is sickening in the extreme to think that it's possible to deny other people access to information, simply because you thought of it first.
The default is to deny other people access to information because you thought of it first.
The patent system exists to help get the information into the public domain quickly, instead of having it kept as a trade secret for decades.
So when you're trolling on the patent system, try to understand its primary function first.
No one reads patents to try to figure out how things work. They simply reverse engineer them instead. Patents have mutated into such convoluted legalese as to be nearly impenetrable to someone wishing to learn how the invention actually works. It is faster and easier to simply buy a copy of the product you wish to duplicate, and figure out how it works on your own. This is especially effective for software, as the compiled code reduces down to a procedural description of the algorithm that is simply stunning in its precision. If source code were required it might have some value, but as it stands, the stated purpose of the patent system is null and void by virtue of deliberate obfuscation. The patent database is hopelessly corrupted, and is so thoroughly worthless as an engineering resource as to be ignored almost universally by everyone outside of the legal profession.
-=Geoskd
I wish I had a good sig, but all the good ones are copyrighted
If you want to defend a law that prevents someone from creating, manufacturing, distributing, or selling a good, then the onus is on you to provide the moral justification for the existence of that law. Otherwise, the law is an unnecessary impediment to our freedom and should be promptly abolished.
But you're both right and wrong - the problem is not that inventors would sit with their thumbs up their butts and make no money if they couldn't have patent protection. The problem is that, instead, they would keep everything under NDA and trade secret protection, with more DRM and harsh licensing systems to prevent copies from ever falling into the hands of a competitor. And that problem was the specific reason for the existence of patents: the rulers of Florence granted the first patent to Brunelleschi in exchange for him publicly disclosing his invention. All of the merchants wanted access to it, and this was in the era where you hire mercenary guards to protect your stuff and/or raid your competitors' warehouses. Rather than have a bloody and expensive conflict, Florence gave him a time-limited monopoly, in exchange for teaching everyone else how to do his invention.
To which invention are you referring? perspective? That silly barge thing? Some feature of architecture? I find it unlikely that not one other person could look at the works and figure out how it was done. Methinks they were dabbling a little much with their leaded paint, and held a little too much belief in the mystical arts to be doing any real thinking anyways... Otherwise I cant understand why duplicating any of those would be so difficult. If I put a block and tackle arrangement in front of my 5 year old and told him to make something similar, I'm sure he could, it just isn't that hard.
Oh, no, 20 years! We might as well all go back to living in caves, because, clearly we are in a dark age of invention. Also, if true, then your story is really about bad legal and economic advice, not patents. Damages for patent infringement are limited to a reasonable royalty, which, by definition couldn't ever be more than your profits. As you correctly noted at the beginning of your post, people do things that make them money. If you can bring a product to market and pay an outrageous 10% royalty on your profits, you're still making profits. If you don't bring the product to market, as an intelligent commenter stated, you "are guaranteed not to make any money". So, the reason for not bringing the tech to market was, at most, bad legal and economic advice, or much more likely, other reasons such as market size, cost of parts, etc.
When each little incremental improvement costs 20 years, then progress is being impeded. Furthermore, it is not the "cost of damages" that stopped competitors in the field, it was the massive legal costs associated with defending against BS patent trolling. The offending company was started and owned by two attorneys who used their knowledge of the patent process to get patents, and then litigated themselves. The legal cost of defending was prohibitive, even if they were going to win, they couldn't survive long enough to get to that point, so they simply did not use the electronic triggers. This rendered the vast majority of other incremental improvements impossible. All because of two lawyers, and a badly flawed patent system.
Perhaps people understand intuitively that patents are bad because they believe in false histories like "patents were designed so that novel inventions would end up being cataloged", as opposed to the real reasons involving trade secrets.
From Wikipedia
A patent (/pætnt/ or /petnt/) is a set of exclusive rights granted by a sovereign state to an inventor or their assignee for a limited period of time, in exchange for the public disclosure of the invention.
Sounds to me like patents were designed to allow public cataloging of inventions in exchange for limited monopolies. Not sure what part of that you feel is a "false history", but perhaps you're not speaking the same English the rest of us are.
-=Geoskd
I wish I had a good sig, but all the good ones are copyrighted
This whole bit of FUD is based on taking two words out of context in a list of features that Samsung could have changed to not infringe in the German design patent infringement case. Specifically, Apple said that their patent claimed A+B+C+D+E+F+G+H, etc. with one of those things being rounded corners.
Look at the patent, which, by the way, has 1 content-free claim (you didn't know that?), and a few crude pictures. I remember drawing things like that in high school. All I claim is that it's been thought of before, but nice trolling.
Note that Stallman's solution doesn't include either of those requirements, and therefore lacks the same moral justification.
So his argument is flawed because he didn't chew it up for you like I did? Try again.
If you want to defend a law that prevents someone from creating, manufacturing, distributing, or selling a good, then the onus is on you to provide the moral justification for the existence of that law. Otherwise, the law is an unnecessary impediment to our freedom and should be promptly abolished.
Sounds reasonable. The justification is that trade secrets are bad because they stifle innovation by requiring constant re-invention of the same concepts over and over, and prevent people from being able to improve others' work. Patents give an incentive to people to destroy trade secrets, by giving a time-limited monopoly in exchange for required public disclosure.
Okay, your turn to rebut that. Plus, while you're at it, quit dodging the question and answer why Stallman's solution, lacking any of the "free" or "gratis" requirements of the grandparent poster, still is morally justified. Frankly, this whole "I don't have to answer, you do" bullshiat is not a valid debate tactic.
To which invention are you referring? perspective? That silly barge thing? Some feature of architecture? I find it unlikely that not one other person could look at the works and figure out how it was done. Methinks they were dabbling a little much with their leaded paint, and held a little too much belief in the mystical arts to be doing any real thinking anyways...
If you don't even know what invention they're talking about, then are you really qualified to opine that they too busy thinking about the mystical arts? As a tip, Google exists nowadays. Invented in the past 20 years, too.
Otherwise I cant understand why duplicating any of those would be so difficult. If I put a block and tackle arrangement in front of my 5 year old and told him to make something similar, I'm sure he could, it just isn't that hard.
Then how come it took until 1500 for any of that stuff? Why did the Romans have it, or the Greeks, or the Neanderthals? A steam engine or internal combustion engine is pretty straightforward, once you've seen one. I bet most any engineer could sketch one out on a napkin if you asked... Most any engineer now that is. Amazing how everything looks obvious in hindsight, eh?
When each little incremental improvement costs 20 years, then progress is being impeded.
Actually, it sounds like progress is proceeding quite well with a series of incremental improvements. Your argument requires utter stagnation.
Furthermore, it is not the "cost of damages" that stopped competitors in the field, it was the massive legal costs associated with defending against BS patent trolling. The offending company was started and owned by two attorneys who used their knowledge of the patent process to get patents, and then litigated themselves.
Actually, the offending company was started and owned by two inventors who used their knowledge of engineering to get patents. They happened to also be attorneys.
The legal cost of defending was prohibitive, even if they were going to win, they couldn't survive long enough to get to that point, so they simply did not use the electronic triggers. This rendered the vast majority of other incremental improvements impossible. All because of two lawyers, and a badly flawed patent system.
All because of poor economic and legal advice, as I said. As noted in the previous post, they could have used the triggers and paid a reasonable royalty and pocket the rest of the profit. You don't have to go court to pay royalties. In fact, most people do so without ever setting foot in court. But apparently, the paintball manufacturers got some bad advice and missed out on a bunch of free money selling an invention that they didn't even have to research.
Perhaps people understand intuitively that patents are bad because they believe in false histories like "patents were designed so that novel inventions would end up being cataloged", as opposed to the real reasons involving trade secrets.
From Wikipedia
A patent (/pætnt/ or /petnt/) is a set of exclusive rights granted by a sovereign state to an inventor or their assignee for a limited period of time, in exchange for the public disclosure of the invention.
Sounds to me like patents were designed to allow public cataloging of inventions in exchange for limited monopolies. Not sure what part of that you feel is a "false history", but perhaps you're not speaking the same English the rest of us are.
Considering that you admit you don't even know what invention was involved in the origin of patents, and you're basing the extent of your knowledge on one sentence in Wiki, I can see why you would think that. The truth is in that phrase "public disclosure". This isn't about making some giant catalog of novelty - and for what purpose? Historical significance? - but about giving an incentive to inventors to publicly disclose their inventions rather than keeping them trade secrets.
The patent office has been hiring 1,000-1,500+ examiners a year for the past few years. While an increased allowance rate is one factor, when the Office has trippled in size since 2001, its hard to ignore the effects of more examiners.
Bring back the old version of slashdot.
This whole bit of FUD is based on taking two words out of context in a list of features that Samsung could have changed to not infringe in the German design patent infringement case. Specifically, Apple said that their patent claimed A+B+C+D+E+F+G+H, etc. with one of those things being rounded corners.
Look at the patent, which, by the way, has 1 content-free claim (you didn't know that?), and a few crude pictures. I remember drawing things like that in high school.
It's a design patent - all design patents have only one claim, by law. However, it's not content free at all - rather, the claim is claiming exactly what's shown in the figures, which are not crude by any mention. And kudos for your high school for having an engineering drafting class. Mine did, too, and it has been very useful through several careers.
All I claim is that it's been thought of before, but nice trolling.
Nope, you did nothing of the sort. You asked a rhetorical question about Apple patenting rounded corners, and as I pointed out, they did nothing of the sort nor ever claimed to. And really, calling someone else a troll when anyone in here can scroll up and see what's been actually posted is laughable.
Note that Stallman's solution doesn't include either of those requirements, and therefore lacks the same moral justification.
So his argument is flawed because he didn't chew it up for you like I did? Try again.
Glad you agree that Stallman's solution lacks the moral justification you suggested.
Unless you disagree? It's not clear from your post. Maybe you're just trolling rather than wanting to have an actual discussion?
I fully agree with everything you have said for every industry except software. In industries other than software, engineers invent technologies that push limitations imposed by the physics and chemistry that make up our universe. In software, the only limitation placed on the software itself is the limits of the developer's imagination. I have never once read the headline to a software patent and wondered how the developer managed to push the boundaries to accomplish the task at hand. The challenge in software development is not how to find a way to get the software to do what you wish: the challenge is finding the best way to accomplish the task given all of the options at your disposal. While it may seem reasonable to grant a patent on the latter, the problem is that the best solution differs depending on your client and varies wildly on a case-by-case basis. And if you don't like that argument, then how about the fact that software patents contain no useful information about how the "invention" works, a.k.a. disclosing the trade secret. Instead, the "inventor" gets to keep the trade secret in the form of the source code. So they get the benefit of the patent protection on a very broad concept and they get to keep the specifics about how the invention actually works protected under trade secret. That undeserved protection of a very broad concept stifles more innovation in the software industry than it has ever protected. The best thing for software innovation is to keep the protection of copyright on the source code and allow developers to create whatever they want, even if it has been done before, as long as they do not illegally copy the source code of others. That appears to be the concensus among most software developers that are interested in true innovation instead of locking out competition.
I will not defend Stallman's solution because I agree with you that his reasoning is flawed.
In general, it is quite a shitty debate tactic. The reason I felt justified in using it in this case is because our legal system is based on a system in which everything is considered legal unless there is a law that explicitly forbids it (there is a Latin term that I can't remember that describes this). Therefore, if you wish to defend a law that is coming under fire for being considered unjust and outside of the scope of its intended utility by the people in the relevant industry (in this case, software patents), the burden is on you to defend its utility.
What everyone was wondering was not why the backlog declined; we were wondering why the standards fell.
I fully agree with everything you have said for every industry except software. In industries other than software, engineers invent technologies that push limitations imposed by the physics and chemistry that make up our universe. In software, the only limitation placed on the software itself is the limits of the developer's imagination. I have never once read the headline to a software patent and wondered how the developer managed to push the boundaries to accomplish the task at hand. The challenge in software development is not how to find a way to get the software to do what you wish: the challenge is finding the best way to accomplish the task given all of the options at your disposal. While it may seem reasonable to grant a patent on the latter, the problem is that the best solution differs depending on your client and varies wildly on a case-by-case basis.
Sure, but you aren't patenting the "best" mousetrap (or software equivalent), but an "improved" one. Maybe your new state machine-based sort algorithm works better in some instances where it can utilize a priori knowledge, but doesn't work well with completely random data. If you've still improved upon known sorts, isn't that the type of thing that we, the public, want you to tell us about, even if it isn't the best possible one?
And if you don't like that argument, then how about the fact that software patents contain no useful information about how the "invention" works, a.k.a. disclosing the trade secret. Instead, the "inventor" gets to keep the trade secret in the form of the source code. So they get the benefit of the patent protection on a very broad concept and they get to keep the specifics about how the invention actually works protected under trade secret.
They shouldn't require the source code, because you shouldn't need the source to understand the invention. They should, however, have pseudocode and/or flow charts - and they're required to do so under 35 USC 112 currently. But, I agree, there should be more disclosure and better flow charts. Most patents are written in ways that I, personally, find questionable from a written description and enablement perspective. But that's not just software patents - I think pharma patents have huge problems in that area.
I think the problem (at least for software) is on the litigation side of things... litigators want patents to be as vague as possible so that, in litigation, they can make the patent say whatever they want. It might be a tough fight to change that, but you could probably make good headway by including a rule that patents must include a clear description of an exemplary implementation that, while not being considered to limit the invention, still is helpful to explain it.
The sort algorithm would contain enough detail to be something of actual value that the software development community would probably like to know, but I believe that would be considered a mathematical formula which does not enjoy patent protection. Besides that, the problem in general with patenting improvements to invents is that the patent on the existing invention is so broad that it covers all implementations of that invention (hence the reason software patents are counter-productive).
Pseudocode and flow charts are nice, but they fall far short of the documentation necessary to make the invention "able to be trivially implemented by another person in the same field." I have seen developers that were handed documentation more detailed than any software patent and watched them create something that matched the documentation but did nothing of value. By the time you start providing documentation detailed enough to create your own useful implementation, you are practically at the code level already.
Believe me, I'm not one to throw the baby out with the bathwater, but software patents just don't make sense. They are frequently written before the software is even implemented so that they are filed before everyone else. What's worse, almost every software developer I know who has written any software of significance would do things differently if they had a second chance. Software development is a complicated process of attempting to balance functionality, performance, robustness, maintainability, cost, scalability, reusability, ease of use, etc. Having some patent about how one development shop implemented something is just about worthless since someone else writing it from scratch will likely have already used the original product, know its shortcomings, and would attempt to create something entirely different that lacks those shortcomings. That is if the company that produced the original product has not locked out competitors already with patents. With software, the code is just about the only thing that really matters and we have ample protection thanks to copyright.
The sort algorithm would contain enough detail to be something of actual value that the software development community would probably like to know, but I believe that would be considered a mathematical formula which does not enjoy patent protection.
Depends how it's written. You can write it as a method executed by a computing device, and it's no longer just a mathematical formula. That a claim recites a non-patentable formula doesn't make the claim unpatentable, if it has other patentable elements. But that's a whole nother discussion.
Besides that, the problem in general with patenting improvements to invents is that the patent on the existing invention is so broad that it covers all implementations of that invention (hence the reason software patents are counter-productive).
You're arguing two different things here... Improvements are always patentable (see 35 USC 101), and it's the utmost hubris to pretend that every invention is entirely new and revolutionary and doesn't stand on the shoulders of what came before. You make a flying car, and, well, it wouldn't be there without the car, no? But it shouldn't be patentable, because it's an improvement? No...
Second, if the patent is so broad that it covers all implementations, then either (i) it's an incredibly awesome invention that really lays the groundwork for an entire field, in which case, shouldn't that be patentable; or (ii) it's not actually covering all implementations and people can still work around it, by inventing the next thing?
And third, why is this specific to software? Improvements (and field-blocking patents) exist in every industry, so why do you think it's a software-specific issue?
Pseudocode and flow charts are nice, but they fall far short of the documentation necessary to make the invention "able to be trivially implemented by another person in the same field." I have seen developers that were handed documentation more detailed than any software patent and watched them create something that matched the documentation but did nothing of value. By the time you start providing documentation detailed enough to create your own useful implementation, you are practically at the code level already.
The test is actually "without undue experimentation by a person of ordinary skill in the art", and I'd argue that a skilled developer should be able to write code from a detailed flow chart. Now, yes, I readily agree that many patents have sucky flowcharts and don't have enough description. But on the other hand, with a good functional spec, you should be able to code it, even with no source code in hand... and that should be the measure for compliance with 35 USC 112.
Believe me, I'm not one to throw the baby out with the bathwater, but software patents just don't make sense. They are frequently written before the software is even implemented so that they are filed before everyone else.
I don't agree with that. I am a patent attorney, and much of my work is software (and I realize this immediately opens up entire arguments based on ad hominems and accusations of bias, and I trust in your good faith to keep the debate on a civil and substantive level rather than collapse to name calling). Almost everything I get is after the software is implemented, at least at an alpha level. The very few where it hasn't been, those disclosures have been detailed enough that I could code it - and did, in one case, to check my math.
Now, this is all just anecdotal, and as I said, I agree that many patents may have problems with insufficient disclosure, but I don't think specific source code should be required. And how would you choose a language? Should all patents have code in C#? Or can they each have their native languages? And what do you do when languages change, or the inventor writes a new language? Not to mention, what if they write code in
In the late1990s I worked in the research division of $large_corporation. Said corporation filed for a lot of patents, a few of which the researchers even considered patent-worthy (we had lots of lawyers who insisted on patenting everything). One day we got a chance to talk to an ex-USPTO staffer, and asked him about some should-never-have-issued patents in the area we worked in ("should never have issued" meant that they were patents on existing technology, for example one was on something that was at the time present in virtually every PC, laptop, and whatever other computing devices were around at the time). He looked a bit sheepish and said "Yeah, that was one of mine. We couldn't keep up any more so we just started rubberstamping patents until we'd caught up". Luckily this particular one was a defensive patent and the company who filed it (another $large-corporation) wasn't interested in enforcing it, but in just that one case it was only one of hundreds of patents that went through without any appraisal.
A bigger problem is that the examiners are rewarded based on how many patents they process. The "ideal" examiner is one who checks the name and date on the filing, verifies that the filing fee has cleared, and then approves the patent. They're likely to get the employee-of-the-year award for their high productivity.
..is that there is a fundamental interest for US companies in general and the US government to grant patents to those companies as much and as easy as possible.
Foreign companies have also found that the courts in US in patent cases doesn't seems to be impartial to the fact that one part is of US origin and the other not.
There is maybe no difference in this to many other country's patent offices but as US legal and economical muscles is so strong they have such an advantage that they have no reason to change it.
This is yet another story about the attraction of protectionism.
Mundus Vult Decipi
No, they are not. The Constitution states they are for the "progress of science and the useful arts." Your assignment of a negative moniker makes it to be an evil rather than a compromise.
Without patents, nearly no one would have a "first mover" advantage. In reality, big business would steal every new idea of every individual or small company. Most inventions and every work of art is easily copied. Robert Kiyosaki invented the surfer wallet, but because he did not patent it then everyone copied it. It takes a large expense of R&D to get most inventions in production, so if you don't have patent protection you just took on all the expense for some other people to copy you.
We need patents.
Gamingmuseum.com: Give your 3D accelerator a rest.