Mr WebTV skewers US patent bill The man who invented WebTV thinks the US patent system is on the verge of ruin. Last month, after a heavy lobby from big-name tech companies like Apple, Google, Intel, and Microsoft, the House of Representatives approved a bipartisan bill that seeks to reinvent patent litigation, and Steve Perlman is adamant this Patent …
So the only guys in tech not supporting this bill are the small firms who want a piece of the old world patent pie.
Boo-Hoo
Patents on software implemented inventions makes about as much sense as a vulture central AA meeting, it's not just that it's hurting the growth of technology, it's that software is exclusive to the whole preposition of patents.
So no, it isn't just the Intels and Microsofts of this world, it's the FSFs, OSIs and digialFreedoms of the world who are also behind the tearing down of patents.
""This is isn't pharm versus high-tech," he said. "This is people who need patents versus people who don't need patents."
And who do you think is going to win win that Battle Royal, everytime, in every Time Zone? Gratitude for Viable Invention will always Pay Handsomely, Patent or Not.
But then Bill does admit that he is first a businessman.
First to file clearly allows for a more dynamic patent environment, the problem is the litigation process, not the patent process. The idea that a jury , or even most judges, can make informed decisions in the patent appeals process shows one of the fundamental problems with the US patent system. Maybe patent litigation should involve some kind of peer-review process instead.
'A bill should identify who the bad actors are and then sanction them.'
What does this actually mean? I only bring it up because it's the only positive step Mr. WebTV advocates. The rest is just pure gripe. So is he suggesting a simple 'anti-troll' bill? I really don't think that would work because (at least here in the McUnited States) whenever we define a 'bad guy' in hard and fast terms people just remake themselves to the finest letter of the law and keep right on doing whatever they do.
I don't want to crush the future Edisons out there but medical patents (at least) have to change and the patent trolls like MercExchange are really annoying. But then again most inventors seem to live by a 'get rich or die tryin' philosophy versus actually trying to produce something truly great. Look up the guy who patented automatic fast food restaurants if you need proof.
"Gratitude for Viable Invention will always Pay Handsomely, Patent or Not."
Are you high? If that were true, then the guy who invented Post-It notes would own a Caribbean island by now.
The closer you get to speaking in whole sentences, the clearer it becomes that you don't know what you're talking about.
Just let this bill pass, and see what happens to your pharmacy bill!
Typically, 5000+ compounds are tested for each viable drug that makes it all the way through trials and approval. If we go to a 'first to file' process, all 5000 tested compounds will need patenting to protect the one compound that goes all the way. Guess who'll pay for those patents?
Yup. You will. Say bye-bye to your spare cash!
"The man who invented WebTV thinks the US patent system is on the verge of ruin."
The US patent system is NOT on the verge of ruin. Its completely and utterly ruined already.
If the bods at USPO can't tell the difference between bogus non-inventions like one-click and real inventions, then clearly all is already lost.
It's not actually "First to Invent"
It is described as such, but in order to prove 'Prior Art' (ie - X did it before Y) requires that X had put a product on the market that used the invention before Y filed.
That's not "First to Invent", that's "First to Market".
Look at Color Kinetics' first patent, US patent #6,016,038, filed in August 1997 and granted in January 2000, regarding colour mixing using PWM dimming of LEDs - I was shown this method of dimming at high school in 95/96.
Yet the prior art fight is continuing.
So the pharmaceutical industry can't make that argument - they can't market all their 'promising' compounds as the FDA would never allow it!
If the level of patent protection related to the cost of developing the 'invention' then some sanity would prevail.
Drugs companies spend a fortune in time and effort developing new drugs; patents are clearly a good thing and should give good protection.
Mr Dysan took two years to develop his vacuum cleaner; patents are a good thing.
Software takes five minutes to develop an new idea. Any undergraduate will develop 5 new ideas by lunchtime; patents are clearly inappropriate. Software has very few barriers to entry, pretty much anyone developing in a particular area would develop the same solution given the same problem.
The thought that you could patent one click. Who's taking the piss here? What next, patenting a business process for 'buying' something?
So if the effort to develop an 'invention' is nothing, then the patent should offer no protection. Use copyright law to protect it instead.
Software patents do nothing other than stifle innovation.
Make one small change... Only grant patents where one can prove that it took more than 6 months to develop the 'invention'.
Trouble is there's too many vested interests to change anything; bourgeois western imperialists!
I seem to remember that a Patent is a full description of a procedure by which one is supposed to be able to produce an exact replicate of the thing patented. A Patent should be an industry how-to for the fabrication of something, or that's how I understood it.
In which case, I fail to see how one can file 25 patents on ideas that have not yet the light of production, much less proper description.
If a Patent was only submittable when it indeed fully described a process, step by step, without any generalizations or missing parts, then we wouldn't have patent trolls because patent trolls have never invented anything - they only file a paper saying "I've thought of this thing !" and then go hunt for victims to sue.
And I'll bet that would also seriously cut down on the number of patents a given company has.
"I only bring it up because it's the only positive step Mr. WebTV advocates."
Does Mr WebTV not sponsor a champion to establish ITs Future Position/Lead Direction?
A Simple enough Question, Anonymous Vulture, for you to feed off and on.
"Are you high? If that were true, then the guy who invented Post-It notes would own a Caribbean island by now." ....... Crikey, does IT sound that Good? :-)
Good View from ur Angle, Anonymous Vulture? XXXXCellent.
Surely the answer to the cost issue is as found elsewhere in the world - you pay a nominal fee to file the patent, which establishes your date, and when it is granted a year or two later, you pay the full fee but you have protection back to the filing date. That gives the company a fair amount of time to whittle their 25 ideas down to five. If they're still working on 25 at that point, it'll be costing them far more than the patent costs to keep them all being researched.
"If the level of patent protection related to the cost of developing the 'invention' then some sanity would prevail."
I have said for a long time patents should be filed with a claimed value based on the costs and effort the patentee expended + some extra incentive. So for example big pharma would be filing multi-million dollar patents and patents for trivial inventions would not be worth filing. The claimed value would be open to legal challenge to keep it honest.
The patentee would be required to sell full non-exclusive rights to the patent to anyone willing to pay the claimed value and would be allowed to make any other kind of licensing or partial rights deal he could get.
The patent system is entirely man made and was intended to be for the benefit of mankind not inventors or companies or patent lawyers. In today's world it is not fit for purpose and needs a major overhaul.
Seriously, under the current US Patent system, a patent application sufficiently long, dry, and boring which described how to buy something using cash *would* be approved, and the process of buying things would then be covered by a patent.
The concept of granting patents to software is as addle-pated as allowing patents for existing processes.
Mr. Perlman has done a pretty good job of explaining the situation. But let me elaborate a bit.
Some businesses are built on real inventions. Others are scavengers who try to make a quick buck riding g the coattails of those who actually invent.
Think of it this way. Many predators prey on the young because if they pick a fight with an adult the get the crap kicked out of them. Inventors and their companies are young, have limited resources, and are easy prey.
Now lets look at the how companies evolve. In the beginning they may or may not be based on invention. By mid life those which were based on invention have stagnated and try to compensate for their inability to produce significant inventions by filing ever larger numbers of ever less significant inventions.
Now the vultures. Those who started as parasites develop fat heads, appropriate inventors property, and get their tails kicked. Their solution is to file large quantities of minimally inventive patents to use defensively.
Both the invention based and the vultures come to operate in much the same manner, much like the lesson contained in Animal Farm.
These are the companies pushing changes to weaken patents. Washed up tech, parasitic tech, insurance whose claim to inventive fame are innovative ways of weaseling on paying claims, and the inbred banking industry whose greatest invention is more fees, and ever larger fees. This group is known as the Coalition for Patent fairness & PIRACY. Rather the companies started as innovators (HP & IBM for example) or started as vultures (Cisco, Dell, Intel, Micron, Microsoft, Vonage), today they all have the same goals and fears. They know that they will be made irrelevant by some upstart and they intend on preserving their miserable and useless existences by whatever means necessary.
Ronald J. Riley,
President - www.PIAUSA.org - RJR at PIAUSA.org
Executive Director - www.InventorEd.org - RJR at InvEd.org
Senior Fellow - www.PatentPolicy.org - RRiley at PatentPolicy.org
Washington, DC
Direct (202) 318-1595 - 9 am to 9 pm EST.
Admirable Analysis, Ron.
I wonder what the Plan is for when Victims ...."Many predators prey on the young because if they pick a fight with an adult the get the crap kicked out of them. Inventors and their companies are young, have limited resources, and are easy prey." ....... Grow Up into Inventive Adults?
What's the purpose of a patent?
In exchange for revealing a secret to the public, society grants you exclusive rights to use that secret for a set amount of time.
We don't need software 'secrets' as they're too trivial too short-lived, and we've already got enough.
Therefore scrap software patents.
Simple really?
It's never the cost of the patent - it's the cost of lawyers fees to protect the patent - you can't afford a patent if you can't afford to protect it.
It means small inventors facing problems end up having to sell the patents to lawyers, who then just try to exploit the 'asset'. Since patent litigation is expensive it's cheaper for richer companies being sued to settle or buy out, so the lawyers always win all ways round.
Reduce the legal input and patents can become manageable. Firstly, the obvious - improve the process for awarding patents (ie drop frilvolous patents).
In disputes the first step should be to force a preliminary 'revalidation' process to be carried out by the patent office at the patent-breakers cost at the outset - they can always skip this step and just say 'valid patent' with no costs and no implication as to veracity for others.
If the patent is not validated, the revalidation costs would be payable by the patentee (forces patentees to get their prior art and non-obviousness right).
Then once the patent is revalidated let the lawyers in to sort out where and how the patent might be infringed and allow retrospective readjustment of revalidation costs. At least then you have something both parties see as having tangible intellectual content.
Saul Dobney said in a post Tuesday 2nd October 2007 17:43 GMT "It's never the cost of the patent - it's the cost of lawyers fees to protect the patent - you can't afford a patent if you can't afford to protect it."
It is all about the cost of a patent to enter the system. Once an inventor is a player if and only if their patent has value they can get the help of contingency litigators or patent enforcement entities to defend their patent rights. Typically the inventor ends up with about 40% of the proceeds.
The math is simple, without lawyers the inventor gets 100% of a big fat ZERO. With lawyers the inventor gets about 40% of tens to hundreds of millions of dollars.
There is a really simple solution to patent litigation, and that is for those companies who have come to view taking other's intellectual property as a god given right to clean up their acts. They can start by making restitution to all the poor inventors whom they have raped and then demonized in an attempt to avoid the consequences of their poor conduct.
The next step to to get a license before they introduce a product. As long as they roll the dice and dare inventors to take their best shot they deserve what they are getting in court.
Remember that the courts do have most of the facts and they are hosing members of the Coalition for Patent fairness & PIRACY. These companies are the worst which America has produced. They act like school yard bullies, picking on those who are weak, and then when they get their justly earned attitude adjustments they rationalize and whine like like children who have not yet learned the difference between right and wrong.
Ronald J. Riley,
President - www.PIAUSA.org - RJR at PIAUSA.org
Executive Director - www.InventorEd.org - RJR at InvEd.org
Senior Fellow - www.PatentPolicy.org - RRiley at PatentPolicy.org
Washington, DC
Direct (202) 318-1595 - 9 am to 9 pm EST.
The original point of patents is that the patent holder is granted a time limited monopoly in exchange for putting the technical details of their invention into the public domain.
This should be mean that software houses get perhaps a 15 year protection in exchange for public access to source code.
Identifying oneself as "Mr. WebTV" really tells you how bankrupt our patent system really is. We all know that early home computer systems used TVs as a cheap display but we went away from this because such displays were limited and real monitors became affordable. The idea of a TV as an information terminal is also commonplace in England with the Teletext systems (and an early phone line based system that was similar which I don't think went anywhere). So what you've got is a shed load of prior art but even then it doesn't stop someone from 'inventing' the thing.
The LED color mixing using PWM is another example of a truck load of prior art that some opportunist hijacks as their 'invention'. Its not. It degrades real invention.
The system in the US is broken big time. It needs fixing. I have come across so many cases of people patenting things that were obvious, previously invented, common technique -- they're what I call 'subjective inventions' (that is, the inventor thinks they're new because they don't know any better). The files are clagged up with this trash, its time to houseclean because its degrading those patents that are patently real.
[Sorry to be late to this discussion (and likely missing the train). I'm on California time. This is a long response to many comments]
This article is essentially an interview, since there are no other views, either supportive or contrary to mine. But, I'm afraid the catchy headlines inserted by the author ended up sounding like he was either making light of my views or he thought negatively of them. I emailed him today and he said that was not his intention at all.
Patents DO need reform in the States, and some aspects of the Patent Reform Act I strongly advocate (like allowing a patent holder to choose a plaintiff-favorable court). So, let me clear up a couple of things up, and then offer comments.
- Only this article has referred to me as "Mr. WebTV". I'm better known for leading the Apple team that developed QuickTime, but WebTV was one of my startups, and when Microsoft acquired WebTV I became a Microsoft Division President and got a deep perspective of a big tech’s view of patents. (And…we never sought to patent Web on TV. Indeed, we were inspired by successful interactive TV systems like Teletext in the UK.)
- Although it is correct that the two cases cited in the article (NTP v. RIM and MercExchange v. eBay) were cases that created momentum for the Patent Reform Act, while Congress was debating the Act, eBay defeated MercExchange in the Supreme Court and in doing so set a landmark precedent that took away a patent troll’s strongest weapon: the threat of injunction. Before this ruling, RIM (Blackberry maker) was forced to settle with NTP for >$600 million because of fear that an injunction would shut down Blackberry phones. After the "eBay" precedent, this threat no longer is significant, and RIM would not have paid NTP anything, because the NTP patents were subsequently invalidated.
- There have been a series of cases in the last several months (including one yesterday that limited so-called “business model” patents). Also, patent rules are changing as of Nov. 1 to limit the number of claims and continuations (extensions) to patents. While all of these decisions have done a lot to curtail abuses of the patent system such as those that prompted the Patent Reform Act, unfortunately, they also weaken legitimate uses for patents. We won’t know for a least a couple of years what the impact will be of dropping these huge rocks into the patent pond, and much of my argument is we should let the ripples settle out before dropping a boulder as big as the Patent Reform Act. There is little risk in waiting, particularly given that recent changes mitigate the worst troll behaviors. But there is a huge risk in acting quickly before we understand the consequences of these changes. The wrong decision will have repercussions globally. Bear in mind that the US is one of the largest markets for patent-protected products worldwide. If this Act passes, EU patents filed in the US will be weakened as well.
- I agree that we need to look at what should or should not be patentable in the information age, including software patents. There are no simple answers, but these are important issues and we need to take the time (and hear many voices) to find workable solutions. But, by that same token, I don’t agree that we should wholesale eliminate or weaken ALL patents. Having raised hundreds of millions of venture funding, and having developed products that have produced thousands of millions (“billions” in US English) of dollars of revenue, I know quite well the funding would not have been possible and the products would not have come into being without patents. I’ve never had to litigate a patent against anyone, but with every one of my companies, investors, partners and in some cases, acquirers, all have looked into whether we have a strong patent portfolio. And, from the other side, in senior roles at both Apple and Microsoft, I’ve seen how a large company may only consider a tiny, but innovative, startup (in a business the relies upon patents) to be credible (as an investment, as a potential acquisition, as a partner, or as a competitor to spur on innovation) because of their patents. Large companies and startups are part of a thriving ecosystem, and patents are part of the balance. Like any ecosystem, there are parasites (e.g. trolls) that need to be mitigated. But not at the cost of the entire patent ecosystem (at least until we can think up and transition to an alternative approach to patents that still creates incentives and enables funding of innovation).
- I don’t feel strongly about first-to-invent over first-to-file, but I prefer a first-to-invent system because of the nature of the work we do in startups. The example in the article of 25 approaches I gave was for a recent system we developed and all 25 approaches were indeed practical and patentable, but we narrowed them down to the ones that were the best. There are only about 200-250 “interference” cases (where there is a dispute about who invented first) out of about 300,000 patents filed each year in the US, so it’s not a big deal. I could live with first-to-file, but I’d want the change to happen gradually, with several years warning, consistent with the examination period of the patent office (2 patents I got last year took 7 years to issue. I have a patent filed 5 years ago that has not yet been examined.)
- The most important reform needed with the US patent system is much more funding for the US patent office. It is the best way to weed out weak patents, and it’s absurd to wait 7 years to wait for a patent or 5 years for a response on a patent. Notably, the Patent Reform Act had a provision for eliminating the diversion of funds from the patent office which I wholeheartedly support. That provision was deleted before the Act was voted upon.
- The “Screw the rest of the world” headline is unfortunate, and most certainly does not reflect my views. I’ve spoken throughout the US and the world, including the UK, on how states and countries can foster environments to encourage startups and innovation, which is something certain regions in the US do exceptionally well. Startups are great for an economy. They mint new industries, create jobs and stimulate new ways of looking at things (including new ideas about what intellectual property means). Ironically, almost every company against the Patent Reform Act was once a startup, and several of them, notably Intel, got to be the powerhouses they are today because of aggressively defending their patents when they were smaller. Now, the shoe is on the other foot.
Steve Perlman, President & CEO, Rearden Companies, www.rearden.com
"Are you high? If that were true, then the guy who invented Post-It notes would own a Caribbean island by now."
IMHO, Post-It notes are not an invention. They do not deserve any sort of protection at all. A company which is first to implement trivial innovations like this gets a "first mover" commercial advantage, and that should be that.
What possible advantage could there be in creating a monopoly for every trivial innovation? Absurd!
....... Sooner than you Think when IT is there All Ready, already.
"I’ve seen how a large company may only consider a tiny, but innovative, startup (in a business the relies upon patents) to be credible (as an investment, as a potential acquisition, as a partner, or as a competitor to spur on innovation) because of their patents."
Steve,
Shouldn't you be jumping in earlier to capture and work with ideas shared and the suits can sort out the patenting end of things [to keep them out of mischief/give them work] Crikey, some people get paid for some really weird jobs, don't they? Have you ever met an inventor who was bothered about patents. They instinctively know when they are not wrong in their right to title and in case of software/methodology, which may be AI Driver to Operating Systems, patent violation through stolen use will have Program Code modified in Feed to take out the Rogue Node with Catastrophic Fiscal Meltdown in a Virtualised Markets Environment for Lead Economic Players/Money Bags
amanfromMars:
Boy do i WISH I could let others sort of the patenting end of things! You are right, no inventor (myself included) wants to be bothered by patents or the laws that govern them. That was the path I started on in my career: just focused on developing the technology and never imagining I'd ever be involved on the business end of things. I firmly believed the adage "if you create a better mousetrap, the world will beat a path to your door".
But, I found out the hard way that it wasn't any near that simple. Believe it or not, the most difficult "challenge" with QuickTime wasn't the engineering (although it was really hard), it was convincing the executives at Apple that typical users were interested in using video on a computer screen. Back in the 80s, desktop publishing was the focus, and it took a lot to convince them that video could open up new markets. And, it was through that process that I saw superb engineering (and science) work discarded, simply because the work lacked a business case to support it.
So, I took the time to learn how to create business cases to justify new technologies. I'm motivated by the science, even more than the engineering, but I learned to work with the business side of the tech ecosystem so that the technologies can be funded. This makes the business people ("suits" if you will) happy as clams, me and my teams get to make cool stuff, and the world sees (hopefully) innovative new products. Even big tech companies benefit, since we frequently partner with them and sometimes they acquire not only innovative technology, but highly motivated teams.
The vast majority of tech work we do is not patented. Additionally, we have and continue to use open source and contribute back to the open source community. The only time we use patents is when (a) we see something as exceptionally novel, and (b) we plan to build products based on the technology that would be vulnerable to being cloned. For example, part of what we do is rethink prohibitively expensive technologies so that they are inexpensive enough to be sold to the mass market. Unfortunately, once we figure out how to make something inexpensive, it is very vulnerable to being cloned by companies with far more resources and market power. The only protection in that case are patents. And, if I can't justify to business people their investment in new technology will be protected, there will be no investment. No investment, no technology.
BTW, patents aren't necessary to build a business case for every type of innovation. For example, the business case for social networking technology is primarily drivien by the "network effect" of aggregating users. But, for many technologies, patents are all we have to enable their creation.
Others have touched on the problems little guys have enforcing patents. It is spelled out in straightforward language as lie no. 10 in Guy Kawasaki's blog entry "The Top Ten Lies of Entrepreneurs".
http://blog.guykawasaki.com/2006/01/the_top_ten_lie_1.html
quote
10. "Patents make our product defensible." ...
... You won't have the time or money to sue anyone with a pocket deep enough to be worth suing.
/quote
James Dyson was namechecked earlier. He did indeed spend years developing and refining his cyclonic cleaner after all the big vacuum cleaner manufacturers had rejected the idea. After his cyclonic cleaner went on sale, he then had to spend just as long in court, battling repeated violations of his patents by these same manufacturers. He did eventually force them to respect his patents but it was a major drain on him and his company.
While I have a lot of respect for Guy Kawasaki (our tenures at Apple overlapped), there is a bit of a disconnect between us regarding this particular item in his blog.
I agree that startups rarely sue with their patents, but for a more fundamental reason: Given how long it takes for a patent to issue in the US (3-7 years), startups rarely have any patents issued when they first seek funding. No issued patents, nothing to sue with.
But patents are rarely used by startups for lawsuits. The fact that patents are filed (even while pending) serves as a very strong deterrent for others from cloning the company’s work. A would-be cloner company knows that once a pending patent issues, the startup (which by then may be a good-sized company) may be able to remove the clone from the market, let alone collect damages. So, other companies interested in a patent-pending technology are far more likely to work out a deal with the startup (e.g. license, partnership, investment, acquisition). Or, if they can’t work out a deal, innovate around the patent (we’ve had to do this on occasion…and it really forces the team to think out of the box).
We’ve had situations where companies with whom we’ve disclosed our technology have tried to clone it, thinking we had not filed patents, and then upon discovering we had pending patents, concluded they could not copy the work, discontinued the projects, and instead struck deals with us and formed partnerships. Or, chose to pursue another path. But there is no question that patents have been a key factor in the survival, and prosperity, of my companies.
So, patents (pending or issued) primarily serve as protection for startups because of their future potential value. And although, when necessary, we politely make other companies aware of our pending patents (called “sabre rattling”), in my career that has never led to litigation, even once the startup has “grown up”.
This is actually one of the items that has come up in my discussions with Senators and their staff in connection with the Patent Reform Act. While there are plenty of statistics available for how patents are used in litigation, there is very little research available for how patents are really used primarily: as a deterrent for cloning inventions. I have over 100 issued and pending patents, I’ve done 8 startups and about a dozen multi-million dollar rounds of funding, I’ve put together perhaps 100 partnerships with companies large and small. Patents are major factor in negotiations, but I've never had the need to assert them in litigation.
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