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Empirical Research Reveals Three Big Problems With How Patents Are Vetted (arstechnica.com)
An anonymous reader quotes a report from Ars Technica: If you've read our coverage of the Electronic Frontier Foundation's "Stupid Patent of the Month" series, you know America has a patent quality problem. People apply for patents on ideas that are obvious, vague, or were invented years earlier. Too often, applications get approved and low-quality patents fall into the hands of patent trolls, creating headaches for real innovators. Why don't more low-quality patents get rejected? A recent paper published by the Brookings Institution offers fascinating insights into this question. Written by legal scholars Michael Frakes and Melissa Wasserman, the paper identifies three ways the patent process encourages approval of low-quality patents:
-The United States Patent and Trademark Office (USPTO) is funded by fees -- and the agency gets more fees if it approves an application.
-Unlimited opportunities to refile rejected applications means sometimes granting a patent is the only way to get rid of a persistent applicant.
-Patent examiners are given less time to review patent applications as they gain seniority, leading to less thorough reviews.
None of these observations is entirely new. But what sets Frakes and Wasserman's work apart is that they have convincing empirical evidence for all three theories. They have data showing that these features of the patent system systematically bias it in the direction of granting more patents. Which means that if we reformed the patent process in the ways they advocate, we'd likely wind up with fewer bogus patents floating around.
-The United States Patent and Trademark Office (USPTO) is funded by fees -- and the agency gets more fees if it approves an application.
-Unlimited opportunities to refile rejected applications means sometimes granting a patent is the only way to get rid of a persistent applicant.
-Patent examiners are given less time to review patent applications as they gain seniority, leading to less thorough reviews.
None of these observations is entirely new. But what sets Frakes and Wasserman's work apart is that they have convincing empirical evidence for all three theories. They have data showing that these features of the patent system systematically bias it in the direction of granting more patents. Which means that if we reformed the patent process in the ways they advocate, we'd likely wind up with fewer bogus patents floating around.
This is the main argument I always hear in favor of patents, and it sounds a lot like "common sense" to me. I've learned to be wary of "common sense" justifications though. The "war on drugs" was a "common sense" policy with complicated, somewhat surprising, and very negative results.
I'm curious, do you (or anyone here) know of any substantial evidence that actually supports this claim? Are there any good, relevant examples of historical evidence that show that a patent/copyright system is required for and/or effective at fostering innovation?
Actually, there are a few examples of the contrary - I think it was the Dutch that eliminated patents at one point, and ushered in years of technological growth and prosperity, lasting until they reinstated patents.
--- Most topics have many sides worth arguing, allow me to take one opposite you.
Obviousness is a fundamentally subjective measure which can only be judged by domain experts.
That is why patent lawyers always try to redefine the English language and create really convoluted ways to redefine obviousness in terms of prior art.
Dunno about 99%, but the actual problem is that a lot of solutions can be defined mathematically, and that mathematical solution implemented in a variety of ways - mechanical, electronic, or as software. There's nothing intrinsically different about the three solutions, just their form differs.
For example, the bounce animation Apple patented is familiar to almost every engineer as the system response of a slightly underdamped second order system. It overshoots slightly before settling at a new steady state value. It's been implemented for thousands of years as a mechanical spring-mass-damper (most familiar as the springs and shock absorbers supporting your car wheels), and for over a century in electronics. There was literally zero innovation implementing this well-known system response in software. But because of our broken patent system, Apple was able to get a patent for it because they were the first to apply for an obvious idea implemented in software.
This wouldn't be a problem if patents were actually being used correctly. You cannot patent an idea. You can only patent an implementation of an idea So even if it were new, nobody could patent the idea of a bounce animation when scrolling hits the end. Apple could patent a certain implementation of a bounce characteristic to iPhones, but other manufacturers could come up with different implementations which were slower, faster, bounced more, bounced less, bounced differently. Unfortunately, the courts have been way too generous in allowing patent infringement lawsuits against the same idea implemented in different ways.
I don't want to eliminate patents, but I'd be fine with eliminating certain categories of patents. Software patents, design patents, business method patents... all of these are overreaching beyond the original intent of protecting the rights of inventors.
Software can be copyrighted, designs are protected by trademarks. Business methods... well, MBAs who need a patent to stay competitive can go fuck themselves.
Irony: Agile development has too much intertia to be abandoned now.
Software was not patentable until about 2000. But there was huge innovation before that.
Bill Gates said something like " If software was patented when the fundamental priniciples of computer science were developed, the industry would be at a standstill today".
Software patents reduce innovation. They add unknowable technical risk to any innvovative project.
My solution; Make intellectual property an inalienable personal right of the creator, like free speech. This means that we stop treating patents as real estate by making them non-fungible. The inventor of work gets a patent on it, and that patent stays with the creator until it expires. Any company wishing to exploit the patent would have to maintain a contractual relationship with the creator during the period of validity. That would mean no more exploiting inventors and then kicking them aside. No more defensive patent portfolios to stifle innovation, which is the opposite of what was intended by Article 1, Section 8.
Imagine what kind of societal dystopia we would have if we could sell off our right to free speech? The wealthiest corporations would buy out the speech rights of their critics and steadily increase their power.