Slashdot Mirror
The IP Lawyers Strike Back
dashNine writes "The National Law Journal has a hagiographic article on big-money patent lawyers. The article begins with a worshipful (if brief) description of Amazon's patent infringement claim against bn.com, and excoriates Wired for not patenting the concept of a "click-through" banner ad. It then ventures into the territory of patent consultants and counsel, discussing their tactics and methods for finding what they consider to be patentable IP. (Favorite quote: "[O]ne of the most difficult tasks in ... intellectual property asset management is to get the engineers and lawyers talking to one another." " Wow. I think the people who are involved in this article must come from a different Universe than I do.
I think I've been around computers too much. I read that as "internet protocol" lawyers... and thought "hmmm didn't there were specialized lawyers for that..."
Soon lawyers are going to be suing people because IP is their trademark and who ever uses Internet Protocol is violating that.
Warning: If you want to read this article and not fall asleep, you will need a degree in "my english is far better than yours"
kudos victoria (the author).
Thomas Schmid athschmid@gmail.com Skype: athschmid
This "Gathering" sounds like the nobles getting together to figure out how best to exploit the serfs and to standardize the methods. An interesting view into the management mindset.
Bantam Dominique roosters crow a four-note song. Once you've heard it as "Happy BIRTHday" you can't NOT hear it that way
If you had studied law instead of CS, and you found out you could make big bucks with these patent cases, wouldn't you ? These people aren't evil or anything, they're just interested in making tons of cash. And the current IP system gives them a 'legal' way to do it. It's not the 'stupid lawyers' fault, it's the whole system. The problem is, you need money to change the system, and right now, the lawyers have more of that than us open source geeks, so the system stays in place.
superblog.org: all your favourite blogs on o
The article is entitled 'Gold Diggers' which I've always thought of as a rather pejorative phrase suggesting that they're only after the money without actually having earned it (I mean you'd call someone that marries for money a 'gold digger'), but then goes on to say how clever Amazon are and how stupid Wired are for missing out.
Bit of a confusion or contradiction, isn't it?
From the article :
A new breed of prospector has landed in California and every other technology epicenter to help companies discover their hidden treasures. Like their predecessors of the nineteenth century, they come from many walks of life. Many of them are lawyers.
What isn't mentioned in the article is that each time an IP prospector chooses to try a patent, it cost money. The cost of each atempt to lock up the obvious is passed needlessly along to the user .
_____________________________________
Keep in mind that even the title of the article pretty well portrays how these lawyers are seen in the eyes of their own community. I hang out with a lot of lawyers (don't ask) and they rank patent suits right down there with ambulance chasers.
Lawyers are just like CS guys in a way: they want to be involved in important, meaningful projects. Suits like the etoy/Etoys thing are nowhere near important or meaningful. Get a bunch of lawyers in a room and ply them with drinks, and pretty soon you hear that they don't give a rip about things like this.
Now, y2k, on the other hand...that's bad news. They smack their lips greedily at our plight, because it's so incredibly easy to prove that the year 2000 was a foreseeable problem that we should have taken into account...
What's your damage, Heather?
Fox wants to make sure that H-P scientists and engineers tell him about what they are creating, so he can protect it legally and exploit it commercially. Sometimes it's a hard sell, says Fox. Inventors are often so accustomed to working every day on their projects that "it looks obvious to them." Indeed, one of the most difficult tasks in this field of intellectual property asset management is to get the engineers and lawyers talking to one another. To encourage engineers to disclose what they are working on, Fox offers cash payments.
See ? It's all about the money. And indeed, if it looks obvious to a normal person, it might not be obvious to a lawyer.
P.S. : at my company, they offer stock options instead of cash.
superblog.org: all your favourite blogs on o
One of the things that we as a community misunderstand often is that these are not evil Snidelies, twisting their waxed-mushaches and cackling. Most IP lawyers are convinced that they are doing the right thing for a company. They are not at all aware of the damage that they are doing to the industry, and get very boggled when an engineer who is supposed to be working FOR a company does not want to HELP that company.
One of the most valuable things that engineers can do is talk to these lawyers in a calm, reasonable way and explain that the future of the software that created the Internet hinges on the assumption that the current patent mania will be stopped by a popular pressure on the USPTO. Change must come or too many of the inovations that the Open Source community NEEDS to impliment will be closed to us by software patents.
You must make it clear that they are not helping your company by acquiring patents that push the envelope of the USPTO's charter. They are, in fact introducing potential public-relations nightmares (like Amazon is now dealing with, and Unisys has been dealing with for years).
Also, encourage your company to create a "free for open source" licensing strategy for their patents. This will not help the GPL world, as the GPL forbids using patent-restricted processes, but the MIT/X and BSD licenses have no such restrictions and could benifit widely from such licensing. It would also help the company in question, as they could require the source to be commented in such a way as to indicate the owner of the patent, and anyone wanting to create a closed implimentation would know who to go to for a license.
The sad fact of the matter is that patenting a concept or idea is terribly difficult to uphold in court through the entirety of a trial. A "Method For Implementing..." patent was initially granted to companies or small inventors before their product came out. In other words if I had an method for implementing a concept, for instance a computer I may implement "method for data transport via the ISA bus" etc. etc.. These patents are supposed to be nullified or pushed into the background when the product as a whole is released.
In the past if a product was released it was perceived as the only way to do the task that was performedby that product. After the automobile technology and patent laws should have changed -- well technology changed but patent laws never did.
The problem now is that technology is rapidly accelerating, gaining ground on and in every field. Naturally people will take advantage to "cash out" - as in any time period, or society. The problem is that the American Justice System helps and hurts at the same time. It helps break up the monopolys that it helps create. So now it's the governments fault -- which isn't entirely true. Again, we don't live in a Utopian Society but let's not be lazy -- let's change patent law to reflect the times, not the 1890's.
This "gold rush" metaphor is very misleading. First of all, can you name a single company that began amidst the original gold rush and still exists? You bet you can: Levi-Strauss. They did well because they were selling to all the prospectors. The big winners from this new "gold rush" won't be the prospectors, it'll be the service industry that supports it: lawyers and so on.
;) Why? Because it allows for others, now or in the future, to build on and improve our efforts now. And that's a pretty good definition of Good.
If the patent system keeps on running amok, it'll have to be reformed - and most of those patents will turn out to be worth the paper they're printed on, if that much. But the lawyers will survive even that fiasco quite well.
Ultimately, the idea that someone can own and control something simply because s/he thought of it is a pretty good definition of evil. The universe of techniques, procedures, and mechanisms that could make the world a better place is a bit like natural resources. Working day and night to use them up as fast as possible is just a way of stealing them from future generations. They won't look very kindly on this period, I think.
Open source, of course, is the solution.
In other words, even the bible of the Internet revolution behaved like so many other technology companies, sitting atop nuggets of gold buried beneath the street of everyday business events
Hmm... well, maybe there's a REASON the 'bible of the Internet' and 'so many other' companies acted this way. Maybe they decided there were more important things to go after-- like, oh say, further innovation rather than legally resting on past accomplishments which have become trivialized by the pace of the Internet.
Rivette estimates that Wired lost at least $20 million a year by not seeking a patent on banner advertising.
And how much would the industry as a whole have lost? How many 'free' sites would not even have existed? A successfully defended patent on this concept may have majorly damaged the development of the web as we know it now.
Would Slashdot exist?
Worldwide patent licensing revenues rose from about $15 billion in 1990 to more than $100 billion in 1998, according to industry estimates. The growth is unlikely to abate.
Revenues to whom? The patent holding companies and lawyers? And what are the nature of the patents? Seems nowadays certain patents are like apples and oranges to each other. One might be a genuinely novel, distinguished invention and the other a nearly obvious idea.
Again, what does the growth of these revenues mean to the growth of the patent holders' industry itself?
There is a Californian, touchy-feely sense to the Gathering
Somehow, I think that this is diametrically opposed to the 'Californian, touchy-feely sense' that might be rephrased as idealism. I see this sense applied to open sharing of ideas, mutual benefit, onward and upward-- not exploitation, greed, and legal entrenchment which slows things in general.
Note that I'm not against one making money, making money for one's efforts-- I'm against doing so by standing in the way of everyone else.
Fox wants to make sure that H-P scientists and engineers tell him about what they are creating, so he can protect it legally and exploit it commercially. Sometimes it's a hard sell, says Fox. Inventors are often so accustomed to working every day on their projects that "it looks obvious to them."
Hmm... maybe that's not because the inventors have been staring at it everday, but because to other engineers and inventors IT REALLY IS OBVIOUS.
Steven Bochner of Palo Alto's Wilson Sonsini Goodrich & Rosati gave a speech in 1998 on the potential liabilities of boards of directors who are not minding the intellectual property store. "It is not unreasonable to look to the board and say, "How are you managing these assets?' " he says.
This is about the only thing I agree with in the entire article-- How are you managing these assets? How should you? Are you posting tollbooths in the intellectual stream, or are you truly innovating and moving forward faster than anyone else?
The former makes you immediate money. The latter makes you more money in the longer haul as your company benefits from further innovation and not entrenched battles, as well as the success of the industry as a whole.
I guess the only good thing about this article, at least, is that the lawyers are coming out in the open and being honest about their desires.
All the greedy vultures will do is tick off a lot of major companies. Then Congress will finally get the kind of preasure it will take to get rid of this junk patent mess. Look what is happening with the Y2K windowing patent. Go ahead Lawyers, start some high profile cases in an election year. Make sure all the big companies know that they can and will be facing constant lawsuits for obscure patents. You'll soon be back to chasing ambulances.
Quemadmodum gladius neminem occidit, occidentis telum est
If you were congress, who would you fix it? I've been playing around with law wordings in my head that would keep companies from accomplishing the monopolization of important ideas and concepts. The problem I'm having is that every bill I come up with in my head would also cause someone who came up with a truly unique service from patenting it (which is, of course, contrary to the whole idea of the patent system).
So, assuming that we're not out to destroy the patent system completely (and I know there are people out there who'd like too, but I think that's unrealistic), how would you legislate to stop abuses while still letting the reasonable patents get through?
----
Every year during my review, I just pray the words "slashdot.org" aren't mentioned.
I.e. Amazon couldn't use any patent in the patent pool without allowing free use of the one-click technology or, preferably, giving the patent to the group.
The OSLDF can challenge patent assersions in court showing prior art in the standards and protocols and argue when an obvious implimentation of this prior art is needlesly patented.
The OSLDF can challenge patent prospectors to show there source code in order to show that there particular implementation is indeed unique and worthy of patent protection.
The OSLDF can fight for the small guy who doesn't have the means to launch a legal defence when his rights are violated under the GPL.
The OSLDF could grow as large as the ACLU is today, looking for landmark cases to protect the civil liberties of open source programers.
The OSLDF funding would be drawn (in the form of tax deductable donations) from the many users of open source. As Open source delevopment touches more and more industries and walks of life, the funding will also grow.
_____________________________________
Hold on a second! What do you mean by capitalism? What's going on right now with all these goddamn awful stupid inane patents, trademarks and senseless bullshit is not the result of capitalism, it's the abandonment of it. There is a proper place for intellectual property. But the widespread mockery of justice that the article proposes is an infringement upon the rights of everyone; capitalism is supposed to protect rights, not destroy them.
The only place I can think of that the growth of the internet (pre-web) strayed from capitalism was that it was started under DARPA; and that depends on whether you consider the project a proper defense project. I don't know enough about that to have an opinion, yet. I do know that the internet is a good thing.
Also, one of the proper acts of gov't is 'to fix the Standard of Weights and Measures'. Internet Protocols, established under DARPA, could well fall into this category.
Of course today's Intellectual Property nonsense is like trying to patent the ruler or scale that implements that standard.
The lawyers make money by representing people in legal matters that are to complex for the client, or when it must enter court. Innovation and the advance of technology is not in their favor. If a lawyer, or their staff, is made more effecient then they have to find more clients to keep the same profit margin. Thus meaning they will want to make things more complicated for legal matters or revoke the right for non lawyers to represent others in certain dealings (like what happened in Real Estate in many states).
So software patents kill both birds with one stone. They get more places where they have to be the representative, and it stifles innovation along with it. Now I know they consider the first all the time, but the second is probably just in the subconcious.
Plus they don't understand or like free software in general. Here is something that my staff can only charge back labor for? That means I can't tack on a handling charge for parts/materials.
They aren't serving society in these cases.
(Using Mozilla M12 and loving it.)
Zontar The Mindless,
Il n'y a pas de Planet B.
One of the tests of patentability is that the technology not be obvious to those skilled in the art. "The art" here refers not to patent lawyering, but to the field of the invention. The juxtaposition in the above quote of "obvious" with "talking to lawyers" indicates confusion on this simple fact of law.
A technique being obvious to engineers skilled in the art of the invention in question is not the same as the technique being obvious to patent lawyers.
The problem, of course, is that patent law professionals, be they lawyers, judges or patent office bureaucrats, have an incentive to make everyone in the world go through them to do anything -- and they are in a position to do so if they can, in the guise of legal sophistication, get away with ignoring both law and common sense.
This is yet another example of the abuse of the rule of law by those entrusted to uphold it.
These people don't understand that they are attacking respect for the rule of law, and that respect for the rule of law is all that really stands between them having a nice townhouse in a peaceful society, and ending up as long pig.
Seastead this.
So, software would fall under copyright laws, rather that patent laws?
As if it isn't now? At least with a copyright, I can create an original work to accomplish the same thing, and there is no danger that my great project will get me sued (or be killed just as it's comming out) simply because someone else was just waiting for their hidden (pending) patent to be approved.
Also, I would add:
6. Reduce the longevity of a patent.
--
Why can't I moderate something "Wrong" or at least "Grossly Misinformed"?
I wonder how they'll feel about things if a submarine patent pops up and the owner demands that they stop selling and using that software?
The creation of patents was meant to protect real innovation, the type recognized as having a scientific or engineering character. Whether or not we agree with the patent concept at all, the avaricious lawyers and greedy business interests have hijacked the process for their own benefit.
The courts have failed to spot the "innovation" impostors and are largely responsible for the abuse of the intent of the patent laws. The Amazon "One Click" innovation is so obvious as to be laughable, but the notion that business model innovation is protectable under patent law is the big problem. The constitutionality of business model patents needs to be challenged.
Defeating the notion of software patents is a harder proposition. I suggest that the open source community start a web site devoted to finding prior art for claimed software patents. Using the Internet we could probably sink a lot of claims and make the notion of software patents so absurd as to make it vulnerable to a formal legal challenge. This is going to be a long struggle, I am afraid.
rm -rf microsoft*
They aren't human.
I'm only half-joking. How can I say this? Well, consider: a very large part of what makes human beings what they are is the fact that humans have a complex ability to exchange ideas. This was first accomplished through language, and is not being spread to computers. Think about it: humans are individuals, but at the same time you could also say there's a collective consciousness as well in the various groups and cultures.
My point? Software is, at its heart, nothing but ideas. Ideas have never been intended to be patentable; even the US Patent Office doesn't allow for the patenting of ideas (they just need to get my previous point into their heads). There's a difference between source code and software; source code can be copyrighted, providing adequate protection for the work a company has done (not to mention the fact that copyrights are cheaper than patents and last longer too). It does this without stifling the flow of ideas which makes humanity what it is. Software patents do stifle this flow, and it's done without any real need (unless percieved from the point of a profiteering glutton, to borrow a phrase from The Mentor). It's more than possible to make money without patents; in fact I would be willing to bet that if all software patents were abolished right now, the revenues of the various software companies (those which actually write software instead of hoarding patents, at least) wouldn't change significantly.
Basically, to stifle the free flow of information is to stifle our humanity in a very real way. It's a shame that there are people who will do this just to make a buck. But they do exist, having forgotten that there are things more important than making ridiculous amounts of wealth (which is certainly nice and all, and I wouldn't mind doing it myself, but it's not the most important thing).
I used to work for Aurigin. Since the company is very small, they can probably figure out who I am (hi guys). I respect their aggressiveness and their knowledge of the law enough to post anonymously, avoid revealing company secrets, and saying anything too defamatory. This doesn't mean I agree with their opinions. (If they and their product were more public I would be posting something much different.) What I can do for you guys is distill their rather confusing public information.
Aurigin Systems' main product is a IP management and tracking system called Aureka. Aureka is a very expensive client-server system for companies in industries that have so many patents that the industry players have trouble keeping track of them all. How expensive? In the past this system has been sold in-person (aka "direct sales"). If you've read "Crossing the Chasm", you'll know "direct sales" means the product is worth at least $50,000 because supporting a sales staff that flies around the world to sell your stuff is expensive.
I emphasize the "at least". The Aureka "value proposition" (why it's worth your time, money, and effort) gives you another hint at how much this system might cost. Patent lawsuits have averaged in the millions. Each patent costs around $100,000 in lawyer's and patent office fees to prosecute (that is, to push though the patent office). If you're a company with hundreds of patents, and patent-savvy competitors, you could save millions just by not going for useless or redundant patents. An avoided lawsuit could save you an entire business market. A successful lawsuit could make you hundreds of millions. It doesn't take a genius to see that spending a chunk of cash to make you smarter about your industry's patents will pay off in the millions. This system will make you smarter about your industry's patents. So it's pretty safe to deduce that this system is a little more than $50,000.
How do you get someone to shell out this kind of cash? Who would shell out this kind of cash? I'm beginning to skate on thinner ice because this is getting into Aurigin strategy, but let's see if we can work through this based on what everyone knows.
The "who would buy this" part is kinda obvious: executives who are interested in making their bottom lines prettier and their shareholders happy. The "how to sell this" part is a little trickier. How do you convince these executives to buy? You convince them of the "value proposition," that it'll pay off. How do you do that?
Well, you can tell how Aurigin's doing it by what you've seen on /.. You write articles in magazines that these executives read like Upside and law journals (BTW I sincerely doubt this article was written by anyone but the Aurigin marketting department, or Kevin Rivette himself.), you write a book ("Rembrandts in the Attic"), and you throw conferences, all with the same message: if you're dumb about patents you will waste time and money on useless patents and get sued. If you're smart, you make millions on lawsuits and save operational costs. And oh by the way, here's a software package that helps you be smart about patents.
So now you see why all these articles seem like they're coming from a different world. They are. These articles are trying to convince Fortune 500 executives that they'll get reamed by their competition unless they get smart about how they wield their patents.
PS I lived with patents for years (it was my job to understand them), so here's my two cents about the /. debates on patents: There's no point arguing about patents if you don't understand patent history, patent theory, and patent law. You just sound stupid when you do. Patents are monopolies. They're supposed to be. I think a lot of people have a problem with that but have trouble admitting it. And this business environment is nothing new. In the early part of the century, there were patent wars over automobiles. There has been a lot of ugly wars over telecom patents. Any time there are patents and new lucrative technologies they'll be companies trying to patent everything in sight because patents help the bottom line, and that's all companies care about.
Arguing about patent theory and efficacy, however...
Sorry if this is slightly offtopic but I couldn't resist. It is not intended to try and invalidate the point that you were making. The tragedy of the commons is often assumed to be a factual/historical description of how a common resource (the mediaeval commons) was shared in a free-for-all manner which eventually led to its own destruction. Not true. The term was introduced in a 1968 Science article (Science 162:1243-8) about population growth. He concluded that "Freedom in a commons brings ruin to all". This assumption of his, that the commons was a free-for-all, is untrue. In fact the commons and the different rights of grazing, pasturing, turfcutting etc were administered by the lord of the manor who enforced a strict set of rules. The commons - and here's the interesting bit for OSS - were eventually destroyed when the aristocracy took over large parts of them (the land enclosures). See any parallel?
The following is presented as representative of the author's personal opinions only. If a patent clerk ("patent examiner") considers an applicant's invention to be obvious, it is the patent examiner's burden of proof to present a cogent, reasoned argument to that effect. I will not bore you with the significant details of how that task may be accomplished, but perhaps it suffices here to say that a patent examiner is properly in no position to merely pass down an edict along the lines of "The idea is obvious because I say so." For a patent examiner's first action on the merits of an application, a first production "count" (credit) is earned. For completing an examination, the examiner earns a second count. Examination of an application is completed when the application is approved, or when an examiner answers an appeal brief, or when the application is abandoned or re-filed by the applicant. An examiner receives no count for a rejection other than for a first action on the merits or in an examiner's answer to an appeal brief. For technologically complex fields, a mid-level examiner is allotted approximately 21-25 working hours per application/re-file. A promotion increases an examiner's hourly production requirements. There is no mechanism preventing an applicant from presenting an examiner with a disclosure, claim or argument that parses perhaps nightmarishly into numerous bewildering stances, with none of them being based in logic or in syntactical or technological accuracy. Putting this in another way, the government is (properly) not fining any applicants for not making sense to a patent examiner. There is no limit on the number of arguments that may be presented to the examiner at one time. A valid argument is to be deemed so by the examiner, no matter how many invalid arguments it may be preceded by or followed by. A patent examiner has the options of attempting to address all arguments as he or she may perceive them, or to approve an application. If an applicant is not impressed with an examiner's rebuttal, the examiner's decision can be appealed to a higher-level patent authority. If the authority is of the opinion that any of an applicant's arguments have not been adequately addressed, then the authority is of course under no obligation to support the position of the rejecting patent examiner. If the authority supports or re-formulates a rejection, an applicant's next recourse is typically within the judicial system. As you may perceive, there are numerous mechanisms in place to encourage a patent examiner to seriously consider each and every argument for patentability, and to encourage a patent examiner to work efficiently. The patent office views each applicant as a customer, and is directly supported by fees, not by income taxes.
Of course, we shouldn't "sign over the rights" to our life to lawyers. They do, however, fill an essential function in modern society. For example, if you were to be charged with a crime, would you not want the best lawyer available? If you're facing the death penalty for murder, I think you'd be more concerned with your lawyer's abilities than that of your sanitary engineers, or what have you. Likewise, if you run a company, you need to be reasonably confident in your legal counsel's abilities.
The fact of the matter is that it takes all types to make this world go round. In other words, We need garbage men, but we also need lawyers too. It is no wiser to be an (ignorant) layman and snub lawyers, than it is to be affluent and snub garbage men.
Merry Xmass.
Luckily, you are not in violation of patent law unless you're selling something. I think. But even if i'm wrong, the code will still be out there, right? :)
Wrong. You infringe a patent by making, using, selling, offering for sale or importing into the United States anything practicing the invention as claimed. United States Code, Title 35, Section 217(a).
What must be obvious to a person of ordinary skill is not the invention as a whole, but the particular combination of prior art references that "add up to" the claim. First, you have to have some prior art. Then, you have to show that the differences between the prior art would be obvious to a person of ordinary skill in the art -- not to a genius, an expert, or even someone more than moderately good.
Indeed, the obviousness standard as used in the courts cannot rely on an in retrospect analysis of obviousness. Indeed, it cannot rely on a statement of the problem that is solved leading to a "natural" solution. The issue is whether the prior art itself motivates that additional matter.
In my view, the problem is not so much the standards for patentability as their inapplicability in practice to invalidate patents. The "clear and convincing" evidence standard that must be overcome is virtually impossible to overcome. (Imagine six people off the street, taken from their jobs, baffled for weeks by inconsistent and conflicting testimony, given two hours of incomprehensible jury charges -- now tell them that if they have any recurring doubts whether the patent is invalid, they must decide validity in favor of the plaintiff -- well, the result in a complex case is settled before you have empaneled the jury unless the plaintiff or her lawyer enrages them in some way). One solution would be to relax the standard to ordinary "proponderance of the evidence," for art that is not less relevant than that studied by the PTO.
The Amazon "One Click" innovation is so obvious as to be laughable, but the notion that business model innovation is protectable under patent law is the big problem. The constitutionality of business model patents needs to be challenged.
These statements are so easy to make, but when placed under the light of actual claims and evidence are much, much harder to prove. While everyone likes to say, "its obvious," no one has yet to produce viable prior art.
Not even the highly qualified patent attorneys representing B&N, who could not even find art sufficient to defeat a preliminary injunction. The standard there is simply to show that the Plaintiff doesn't have a substantial likelihood of prevailing on the merits. At trial, the standard is to prove validity by clear and convincing evidence.
I assure you, whatever you may think about the claims being "obvious," this informal use of the word has nothing whatsoever to do with the term of art as it is used in patent practice, or the relevant language in Title 35, Section 103.
Different industries move at different speeds, a computer hardware idea from conception to market, and one market cycle (8 months or so) is around five years. For software, it's around two years, and with interface design (one-click type things) probably three years.
Big changes, in a slower-moving industry, should be protected longer, because the product cycle, at the end of which, a very different set of products is released, is longer. Not only would it take a lot longer to design and prototype a new chassis, but safety testing would add to that. And then, one year of car sales doesn't see a lot of change. A '98 is much the same as a '99, only over five or so years do you see the ammount of change you do in the computer industry in a few seasons.
So, some parts of the automotive industry would deserve longer protection.
The length of protection needs to be based on the ammount of time needed to develop the product, and to market it, taking advantage of it for long enough to recoup development costs.
The example of the metallic glass alloys isn't valid. If they didn't have the technology finished, they shouldn't have been able to patent it. And if they had it ready, but couldn't convince people to use it, this is a marketting problem, not a patent problem. But, if the industry moves so slowly that factory upgrades are very infrequent, maybe longer protection would be appropriate in this limited area.
My changes to the patent process...
7. Independant discovery either nullifies the patent completely, or grants identical rights to the other developers.
8. Protect it or lose it, like trademarks. If you are aware of, or should be with due vigilance, a company using your patented method, and you don't immediately notify them of your patent, you lose all rights regarding that patent.
#7 is obvious. If someone else independantly discovered it, then it's either too obvious to warrant a patent, or both parties deserve rights to it. This is for thing like Calculus, independantly discovered by Newton and Leibniz, which are definately unobvious, even today not many people independantly discover them, but neither one deserves total credit. (Or in the case of Calculus being a patentable physical process, total patent control.)
#8 would prevent companies from patenting a wide range of fairly simple ideas, then using them like landmines. Wait till a company uses those ideas in a product and is making money, then notify them of their infringement and force a massive settlement.
I'll give you that some laws are unnecessary, and others are needlessly complex. However, the view that most every law is unnecessary is only afforded those who live a cloistered existence. It's easy to rant and rave about business, when you don't operate one. I'll be willing to bet that you've never operated a business, or tried to draw up a contract. More than likely, you're still in academia. You've definetly never actually patented anything in your life, let alone developed a viable product off of it....ah what the hell why waste my time on you? I just tire of the sophmoric rants that comprise the bulk of slashdot.
/* aspestos suit: On */
Patents, if enforced in a rapidly moving industry, can limit innovation. Rarely is a good idea protected by a single patent, it's usually completely covered by patenting it, and every possible variation of it, meaning that almost anything based on it is covered, meaning that if anyone wants to improve on what's often a fairly basic idea, they have to come at it from a whole new angle, or go through a couple of generations of development with no hope of a return on the investment.
It wouldn't be hard to stall development, if What's His Name actually did have an enforceable patent on the microchip, people would have either had to license it, or find some completely new technology, and the industry probably wouldn't have developed so quickly.
Not likely. I haven't seen any company that will develop technology they don't intend to pay off sooner than that. Just because new computers tend to be bought every 18 months, doesn't mean there's 17 dry months, and 1 boom month.
And patent disclosure isn't complete. You have to make public the details of the protected invention, but all the skills the company developed in working in that area aren't required to be disclosed. Even if the patent period was almost expired, the company would still have a headstart in competing with the other companies looking to enter the field, both in experience, and in market share, having been the first to market.
No. If independant discovery can be proved, and there's no reason to expect that the burden of proof wouldn't be with the claimant, then the patent should be nullified. The idea of a patent is that you get monopoly protection in exchange for publicising your novel idea. If someone else provably invents the same thing independantly, then your idea isn't that novel, and doesn't deserve protection.
Or, if it is ruled to be novel, but you and the other inventor both happened onto it at the same time by chance, then a coinventor status seems to be a good idea. Seems to be a better idea than immediately striking down the patent if there's a coinventor...
Exactly, it's still a novel idea, even though two people did develop it at the same time, so if it was a physical process (ie, patentable) it would deserve some protection, but is the work of one of them more deserving simply because they filed the papers sooner than the other?
And yet, we see many examples of companies patenting trivial things, like selling data over a network, and then suing companies, years later (the patents are dated in the early to mid nineties) suing companies that have started businesses in those areas.
Sure, these may get struck down, if anyone could afford a legal battle, but with the 'valid until proved otherwise' attitude of the patent office, a stupid patent you can't afford to fight is as dangerous as a valid patent.
I'd also like to see the patent office foot the initial bill in patent challenges, and bill the loser only after the fight, so that companies can afford to challenge crooks who patent the insanely obvious. They might start to raise the bar on applications if they got stuck with the bill from morons patenting air, going bankrupt when presented with a bill for the failed defense, and vanishing.
You may work as a contracter, but you don't understand the logistics involved in writing a complex contract, let alone a patent. I agree in that laws can be writen more plainly, but you way way way oversimplfy. For example, you said "the only way to make money on a patent it to use them like landmines". While a few may make profits like this, you're ignoring the hundreds of thousands of technological innovations which would have simply never happened without intellectual property. Having seen some of these developments first hand, I can tell you flatly that your statement is simply wrong.
For example, my company is in the process of developing an artificial pancreas (read: not a frivilous device, this is a device that can save and extend the lives of millions of diabetics. A device also which many companies have tried and failed to builld already). It is a multimillion dollar project just for development. Suppose my company finished development tomorrow; it cost 50million dollars. We submit it to the FDA, and begin clinical trials. Our competitors get ahold of it. They realize the genius of our device, it seems so simple. So they copy it, and produce it at a cost of 500 dollars a unit. We on the other hand, have not only 500 dollars a unit, but also the R&D costs on top of it. How do we justify spending 50 million dollars on R&D, when our competitors can force us to compete at cost? Futhermore, how do we justify the risk (high chance of failure) to potential investors (e.g., Venture Capitalists). If 9 in 10 ventures of its kind (from their limited insight atleast) fail, the investors need that one company that suceeds to ATLEAST pay the costs of those 9 other failed companies (plus its own) to break even. That means that we need to enjoy monopoly rents on that product to make it happen. I can tell you from experience that it is simply not going to come to fruition otherwise, a great many diabetics would have their lives cut short as a result. In addition, the protection that patents offer is limited (though still valuable). History has proven that it does not take the competition long to figure out what we did right (without infringing on our patents); two to three years later, they produce competing product, price levels come down....How is this an unnecessary landmine foisted on the back of society to the benefit of only lawyers?
Anyhow, i'm going on vacation now, no reply. Bye
Yes, but how does this justify shortening the life of a patent? Even within a given industry different technologies have different lifetimes. You can't say on granting a patent, well, this invention looks like it will have a useful life of 8 years. There is no way to predict anything of the sort
Time to market and useful exclusive lifetime are more important considerations. Patents were NEVER meant to last for the useful lifetime of an invention. They were meant to allow for a reasonable profit.
The life of a patent is SUPPOSED to take into consideration the time required to go from invention to an established market. That time is MUCH shorter in the computer field than in most (if not all) other industries. It is shorter now in any given industry than it was 100 years ago due to the effects of ubiquitous communication on marketing (It's a lot easier to reach a massive audience with your advertizement now than 100 years ago).
Patents are SUPPOSED to run out while the invention is still quite useful and there is time for a competing product to develop a market and become profitable. If an invention becomes worthless before the patent even expires, the patent lasted WAY too long. Wanna buy a nice new MFM hard drive?
On the issue of obviousness and novelty, If two people independantly invent something, they certainly SHOULD be granted co-inventor status. If MANY people independantly invent something, then it clearly was obvious.
Patents were supposed to be a deal struck between an inventor and society. In that deal, Society gets a written description of a new invention good enough that anyone skilled in the field can re-create the invention, and as compensation, society guarentees that nobody will do so for a reasonable amount of time. It was NEVER meant to provide a windfall for the inventor, or to block other inventors from innovating. It certainly wasn't meant to allow someone to patent everything he/she can imagine and then lay in wait for someone else to stumble over their patent landmine.
To show a violation a copyright holder need only show that the alleged violator had access to the copyrighted work (i.e. had seen it previously) and that the alleged violator's work was "substantially similar".
In the case of software, that would generally require that I saw the source to the proprietary code. Considering how jealously that is guarded, it would be hard to claim that I must have stumbled into a copy of it somehow.