"For some time, the only reason the word 'patent' meant anything to the average Joe was if they happened to know that Albert Einstein was a patent clerk before he became a rock star physicist."
Or if they'd ever heard of Thomas Edison.
For some time, the only reason the word 'patent' meant anything to the average Joe was if they happened to know that Albert Einstein was a patent clerk before he became a rock star physicist. Nowadays, everyone is well up on the Great Patent Wars of technology firms, in particular the face-off between Apple and Android OS …
On the planet that brought us Enron and Intellectual Vultures, how would you police this?
In fact, it would be simpler if large swathes of territory were unavailable to the granting of patent monopolies. Thought of a nice technique? Get using it, because someone else has probably already thought of it. Think your rounded corners are "novel"? Get over it, because the same instincts that led you to that realisation are shared by most other human beings. These corporations should get on with competing with their considerable resources in the luxurious circumstances they inhabit, instead of trying to exclude each other (or newcomers) from the marketplace.
And I now leave you with the joke of the article:
"When we think about strategy, these deals are all about positioning in the marketplace for phones and tablets and about market share, they're not really about exclusion."
Patents are monopolies and are thus all about exclusion. Sheesh!
This could actually harm inventors. If I invent something, I might be better off selling my patent to a company capable of producing and marketing it and policing for infringement of the patent, rather than doing all that myself. After all, many inventors do not have the capital and resources to police a patent properly, and fight legal battles against potentially very wealthy players. I could of course sell a unique, non-transferable license for production or marketing, but what of the policing bit, would the license holder do that?
If the problem is of quality, and the cost of manpower to perform proper reviews, then the cost of a patent should go up till the budget balances.
This will mean that fewer patents will get submitted, and the patents that are submitted will get reviewed thoroughly.
Enough cases have been reported in the pages of this august journal and elsewhere of patents being upheld, even if they are clearly invalidated by prior art, or are trivially derived from it.
Patent lawyers have a nasty trick, where the scope of the patent is argued narrowly when considering prior art, but is then argued ludicrously broadly when considering infringement. They are allowed to get away with this, so the practical result is that any attempt to strike down a patent claim for being bleedin' obvious is so expensive that it's cheaper to settle.
Since all the money to be made is made in this way, don't expect any change.
Increasing the fees does not mean that the quality will increase. There is no incentive at all for the patent office to perform _any_ review at all. There is no downside to simply granting every application and collecting the fees. The challenge to the patent is done through the courts and any review requires that further fees be paid to the patent office.
What is required is to make the patent office responsible for the effects of granting the patent. If, for example, prior art can be shown then the patent office should be liable to pay the costs of defending against the patent in court, or at least partly responsible along with the holder.
I thought this report would be about the costs of the patent system itself, rather than the cost of patents. It is currently just a mechanism by which tech companies can whack each other on the head, and 'non-practising entities' can whack all tech companies on the head.
It would be better if the patent system was destroyed, root and branch, than if it continued in it's present form.
An "unmitigated disaster", you’re too kind sir or madam, describing the patent system is an unmitigated disaster is a bit describing the sinking of the Titanic as minor boating incident, any system that allows the following 'patents' is more than broken, I honestly believe that the people working^H^H^H^H^H^Hemployed in the 'merkin patent office are either 1) having a laugh accepting patents for the most ridiculous shit, 2) just rubber stamping everything or 3) using too much whacky-baccy (see 1)!
As proof I offer these patents:-
No. 4022227 - Method of Concealing Partial Baldness (the comb-over).
No. 5443036 - Method of exercising a cat (using a laser pointer).
No. 4170357 - 12-gauge golf club (do you need a gun licence?)
No. 4320756 - The toilet snorkel (what a way to spend the last moments of your life!!!!!)
"Wouldn't it be simpler if patents were non-transferable?"
How would you define non-transferable? Couldn't be bought if you buy the company? This would devalue all stock for tech companies. If you allow patents to be bought with a company, then people would just create shell companies to hold patents and then sell these instead.
"the cost of a patent should go up"
So you'd price small companies out of the process? Even better for large companies wanting to create monopolies by enforcement of patents.
Sorry I can't offer a better idea though; in the words of Deep Thought "I'll have to think about it".
"How would you define non-transferable? Couldn't be bought if you buy the company? This would devalue all stock for tech companies."
Okay? So why is that a reason not to do it, then? Last I checked, the job of the law was not to uphold the share value of tech companies. (Of course, the notion that it *is* the law's job to uphold share values might be the reason for a lot of the messes the law is in...)
The idea of patents is to grant a *temporary monopoly* to the inventor, allowing them to charge monopoly prices for some period of time in exchange for disclosing the details of their invention, or at their option, to grant licenses as they see fit. But the exclusivity and threat of enforcement remains the primary attraction for IP creators.
Given the choice between a licensing revenue stream and having a trade secret that lets you do something no one else can, guess which one most companies would pick? The whole idea of patents and exclusivity is ultimately screwed in our modern age-- if all the big players enforced their little monopolies, it's unlikely anything could be produced. Patent reform? You're having a laugh-- it's time to put the entire system out of its misery.
Because cold fusion is an awesome thing and being one of the thousands of people who contributed to its achievement would be a neat thing. Isn't that a good enough reason?
(Or, what, do you somehow assume you could achieve cold fusion without building on the intellectual achievements of countless thousands of people throughout history, very few of whom would have considered the idea of 'patenting their ideas' to be a sensible one?)
don't. Take your eleventy billion dollars and invest it on the stock exchange. Meanwhile, somebody else with money and a bit more vision beyond the ability to see only as far as his own hip pocket will invest in inventing cold fusion instead.
And in a century's time, whose name will be getting taught to kids in history class as the man who freed civilisation from the shackles of the fossil fuel industry? As opposed to Tom 38 who would have merely replaced one hydraulic despotism with another?
Why don't you get back to protesting that 'Capitalism is Crisis', without ever explaining how we go from here to your utopia. Without patents, we wouldn't even be having this discussion, as computers probably wouldn't exist (not in this form).
Face it, human technological evolution relies on one of two things:
1) The desire to kill other people
2) The desire to profit from other people
von Neumann was thinking of both when he patented how to make a nuclear bomb.
"It would be better if the patent system was destroyed, root and branch, than if it continued in it's present form."
I hope none of your pension fund is invested in technology companies!
Seriously; this would destroy the value of many American and European companies, leaving those who manufacture products, rather than those who design and invent them, with all the profit.
For example; Apple develops the iGadget and sends the designs to XYZ Manufacturing in the far east; XYZ Manufacturing says "fuck you very much" and just sells iGadget clones to anyone who will buy. Apple doesn't like that, so for iGadget 2 they make it themselves, in the USA, for $500 each. XYZ Manufacturing buys one (or finds a prototype in a California bar) and then goes on to make its own iGadget 2 clone for $200. Apple goes out of business, because who will lend them money to develop iGadget 3 if there's nothing to protect the investment?
Patents are a good thing! But the way they are being evaluated is at fault; we're letting too many obvious ideas get patented which devalues real research and development. Maybe the best solution is to fix the cost of licensing a patent at the time the patent is given, perhaps based on how difficult/costly the design process was; this could be subject to legal appeals by either side if .
There are these things called contracts, perhaps you've heard of them? Apple and XYZ manufacturing develop a contract for the production of iGadgets, with punitive measures if either party breaks the contract. Manufacturing clones and selling them to all and sundry would break the contract so hard it makes an audible snapping noise and XYZ would face all sorts of legal wrangles from Apple.
Patents aren't particularly relevant to the manufacture of goods in east asia by American companies as they're often manufacturing goods that aren't protected by the local patenting regime; the distribution of those goods is protected by contract. Where the issue rises up is when a company in, say, China begs, buys or borrows a patented widget from Widgets R Us and begins manufacturing their own without permission, in order to undercut the patent-protected market, either foreign or domestic.
All that said, I agree that patents, as they were originally conceived, are a good thing. They were designed to encourage the sharing of new ideas whilst still providing the originator with income. Now, they're used to kill off competition by application to such generic ideas as buttons, business methods and wiggling fingers against glass. The problem started the moment the patent office dropped the requirement for a working model.
There is still copyright law to protect source and binary code, circuits, mechanical designs and so on. You do not need patents to protect companies from direct rip-offs.
Now try to near-copy Windows on your own and you will see that it costs a few billions to get something as complete and polished. Your arguments are basically invalid.
"Seriously; this would destroy the value of many American and European companies, leaving those who manufacture products, rather than those who design and invent them, with all the profit."
Quite right. Without the financial incentive provided by patents, no one would bother to make anything new because there'd be no substantive reward. And then we'd end up in a society quite like that of the old Soviet Union. Dull, drab, and nothing getting better than it already is.
Private investment has driven the technology of the world for the past 200, 300 years. Take away the incentive, and you're then reliant on government to drive things forward. How likely is that to be a good thing?
Your point about the evaluation of patents being at fault hits the nail on the head.
... might not be sexy nor flashy and more often than not lacks the patent "protection" seen in "the west" if for no other reason than its age.
Yet, much of what got developed there has been developed with the intent to last - reliable, rock-solid, hard-wearing, widely applicable, ... - things that one would wish to be more prevalent in a forward-looking (sounds less cerealy-greenish than "sustainable") society.
There's a lot the Soviet Union(s) of this world are to answer for, and no I don't think it's a good idea (though probably patentable) to bring it back. But with respect to the soviet approach to technology (maybe crude to use, but well-working, possible to build from limited-availability resources, lasting for longer than a communist party chairman, produced-with-pride), I can't help but see some value in it.
"The problem with a lot of the patents is that they are not innovative and what they cover is obvious to experts in the domain of the patent. "
The best inventions seem completely obscure and when completed seem completely obvious. The toys you wonder how you never coped without.
After the invention has come to market and been played with it seems obvious.
> The best inventions seem completely obscure and when completed seem completely obvious.
Patents protect implementations and not ideas.
If all it takes for something to be invented is a good description and the work of a college student, then it really doesn't deserve a patent. This was the case for my own "favorite" patents that Tivo was granted for the PVR.
You are advocating treating nukes like firecrackers for no other reason that you are really ignorant and you can't imagine anyone actually having a clue.
A 17 year exclusive innovation crushing monopoly is like any nasty thing you can name (nuke, toxic waste, biological weapon) and should be treated accordingly. Proliferation certainly shouldn't be casually encouraged.
US Patent 6,016,038 Multicolored LED lighting method and apparatus - Filed 1997
That patent claims a data signal controlling LEDs dimmed by PWM.
That one is so obvious that I was doing it *at school* in the early 1990s.
There are many others of that nature.
The problem is also that the market for patents is being flooded with essentially worthless ones (swipe to unlock anyone) that nonetheless can cause a great deal of trouble. Quite a bit like all those CDOs, doncha think?
The only winners here are the lawyers. Again, a bit like the financial bubble too.
In some sectors you can innovate quickly, and long duration patents can stifle innovation (potentially). In other sectors, innovation is slower, and patent duration might be longer.
Of course, you then end up with a question on how to judge the duration per domain, but it is worth a thought.
As others have said, the USPTO spends to little time evaluating patents. Things are a good deal better here in Europe, where investigation into prior art is generally quite thorough (as I noticed when I was (co-)inventor on a patent).
"A lot of people have talked about it being bad for innovation but I think the ability to enforce patents is a core aspect of what drives people to invest the huge sums of money that they do in R&D," he says. "And ultimately that will be of benefit to the end user, even if in the short term there is an increase in prices as some of the litigation is settled in the form of higher licence payments by some of the makers."
Of course, it's all for my benefit. Thank you for explaining that, really, large convicted monopolists are abusing the patent system fot my benefit.
Reminiscent of "if you play the video backwards that, really, the LAPD are helping Rodney King get up"
(ascii art because m.elreg)
Why not make the patent system "open" to peer review rather than salaried flunkies. Allow that review system to determine the validity and length of the patent in terms of obviousness, (i.e. colour of icons would be quite short, cure for cancer would be longer). Then also allow other companies to use patents which haven't fully undergone the review process to use them - under the understanding that as soon as the patent is ratified and it's length of enforcement is determined, they pay licence fees from the date it was proposed to the length of the patent, (i.e. swipey touch finger screen thingy - one year, clean renewable power source made from old pizza - 20 years).
"A lot of people have talked about it being bad for innovation but I think the ability to enforce patents is a core aspect of what drives people to invest the huge sums of money that they do in R&D,"
Something that's making me seriously consider getting out of the software industry (preferably in the direction of academia) is how much nonsense this is. Patents were invented so that the few people who had enough spare time on their hands to solve problems would share those solutions, furthering society. We now have an industry of getting on for millions of people who are employed solely to solve a limited set of problems. The problem will have needed solving by someone else long before a patent is granted, so the disclosure advantage is no longer outweighed by the exclusivity.
Patents were meant to allow the better mouse trap to be available to more people. Now everyone is making mouse traps, one person invents the best one, and everyone else spends their time realising that they couldn't do it the right (and often obvious) way and have to invent an inferior workaround instead. This is immensely frustrating if you want to put your heart and soul into making the best possible mouse trap, and if you're building a machine out of thousands of mouse traps, it's immensely frustrating to have to worry about this at every turn - patents rarely cover something that took a long time to invent, and software engineers spend their time building large projects out of lots of these small problems.
Has anyone worked out how much bandwidth and storage space would have been saved if IBM hadn't had the arithmetic coding patent that meant everyone's JPEG implementation uses Huffman? (Admittedly, only a little per image, but there's a big multiplier there.)
There was an interesting article on Ars Technica a month or two back discussing a report that had noted the effect of patent disputes on company market values. It put the cost of patents to the software industry over the last twenty years as $500bn. I'm not surprised.
For some time now, I've felt that patents have been over-used and over-priced - and heading for a big fall, not just in value.
They're being used not just to obtain value from invention - as was always the way - but now to stifle innovation, and - worse - also to set out deliberately to destroy companies. See Jobs' recently-published quotes on Android, and Apple's outspoken intentions towards Samsung, if you're in any doubt.
It feels like we're on the eve of a war. I think we probably are, but it will come from an unexpected direction.
In China, India and other emerging economies, patents don't hold back progress in the way they do in established economies. Sooner or later, the biggest Western governments will realise the potential consequences. At some point - and it may happen sooner than we expect - there must be moves to weaken patents.
That could come from a number of directions. The entry barrier to patent enforcement litigation could be raised by having the litigant place a large bond (say, three times the compensation/penalties sought) in court escrow, to be released to the defendant if the case fails.
Given that a lot of patents are spurious, the defendant could be granted a pre-hearing opportunity to overturn the patent by submision of proof of prior art or lack of inventive step - meaning that any litigant could be faced not only with the potential of financial disaster in failure, the risk of having their patents ruled invalid.
The actions of the court in enforcing the patent could be limited: an upper limit on claim size; a strictly limited window of opportunity to file claims (in effect, a statute of limitations on patent violations); the restriction of recourse to retrospective establishment of a court-set reasonable licence fee; with the removal of any powers to ban sales of infringing items except where the defendant has failed to pay the retrospective licence fee after a reasonable period.
One way or the other, the current patents system has to be fixed, and on a worldwide basis - and not just to protect business interests. Otherwise the human race's dying words could well be, "We couldn't shoot down the meteorite, because the patent court grounded the weapon system."
here : "In China, India and other emerging economies, patents don't hold back progress"
it's only our western habit of navel gazing which prevents us from seeing the obvious. Few more years of this patent nonsense coupled with weakened retail markets (did anyone say "recession"?) to offset litigation costs, and I can see plethora of less-known (in the West) companies doing some serious export here.
Prior to the US and EU patent offices discarding the rules of the patent game, the system was quite stable. They did so on their own, with the help of the "patent community" i.e. patent attorneys who profit from there being more patents. It was done without any legitimacy at all but for some obscure reason, US courts sided with the USPTO and the EU patent office started to ape them. Could it be that courts and patent offices are run by legal experts, the same that profit from there being more patents ?
To sum up the situation before, a patent had to describe a physical invention, i.e. the embodiment of an idea into a physical machine. And the invention had to be non-obvious for the man of the art. The "physical" part was not there to exclude software, but to exclude theories, mathematical formulas or other pure ideas.
So for example, you could not patent centrifugal succion by itself (when you rotate a cylinder, the centrifugal force creates a gradient of pressure inside, with low pressure - succion - in the middle). You could however patent a centrifugal pump, or a centrifugal succion cleaning machine.
The system stood on good legs: ideas were assimilated to science where publication is the norm. Patent protection was deemed necessary only when a specific implementation of an idea was considered because it required setting a manufacturing operation into motion which requires time. The protection provided the time.
Benefit for investors: possibility to implement and productize.
Benefit for society: inventions are described publically and become public after a period of exclusivity
The USPTO first abolished the first rule by allowing patents on pure ideas which created a flood of over broad patents since no specific implementation was required. The "one-click" patent was born and patent trolls followed. Under the volume, it was forced to abolish the second principle too because it did not have the resources to asses non-obviousness anymore.
Again, the goal was plain and simple: more patents of lesser quality results in more patent litigation and counseling hence more money for the "patent community", which is why the "patent community" did it.
Such is the sad story of the biggest "robbery of the 20th century".
It also shows us the way back to normal: reinstate the old rules.
"The "physical" part was not there to exclude software, but to exclude theories, mathematical formulas or other pure ideas."
Software was covered by copyright.
There are many ways to solve a problem, take the routine :
follow family recipe(ingredients);
There are many recipies, many ideas, just as there are many ways to write a sort routine. Software is a mental act in the same way as a mathematical proof. That is why it was not patentable (until last month in the UK)
As technological change accelerates, the patents are going to become an ever increasing problem. For example, a patent 200 years ago would most likely have been very useful for decades more after that patent ran out. But now a 20 year patent could very easily out last more than a dozen generations of mobile phones!
Technological change is accelerating, (All information technology is a perfect example of that, as collectively its all helping to accelerate research into new technology, which in turn will help accelerate technological change even faster than now).
The problem is, the faster technological change accelerates the more patents become an increasingly big drag factor on increasingly fast technological change, which shows patents slow change (even though the lying two faced patent holders wish us all to wrongly believe patents help speed up change).
So that's one more major problem we face with patents, without even looking in detail at all the other problems patents cause us (which we have discussed before). In summary e.g. patents being only useful to billionaires and billionaire corporations (to use as a protection racket) and only other billionaire corporations can fight such a massive and expensive system. A lone inventor would get swamped with hundreds, even thousands of patents so unable to afford such a huge and lengthy patent battle so they would go out of business.
The patent system has fundamentally failed and that problem is getting progressively worse as technological change accelerates. The patent system doesn't work as originally intended, but patent holders (and ever richer lawyers) will never admit it, therefore its going to take someone else to go up against the system and no one can, because it would cost billions to fight the patent system and they would most likely still loose as its now “the law” bought and paid for with countless billions of lobbying money over centuries. The law serves only the rich because they can afford to lobby it until its what they want. Therefore we are all trapped now in a billionaires increasing tyranny all backed up by a legal system bought and paid for that allows the billionaire corporations to run protection rackets against everyone else.
Wonderful world that's been created isn't it. :( ... but don't worry, the endless two faced supporters of the corrupt system will try to lie to us that its needed and if that fails, they will do what they usually do, which is to use straw man augments (and arrogant/nonchalant indifference such as tl;dr) against anyone who tries to talk against the corrupt tyranny that has been bought and paid for. But then they don't want people to argue against the way society has become increasingly corrupted to serve only the will of the rich. Same pattern throughout history and patent law is just the latest example of laws biased to serve a few against the many. :(
Are these the same experts that took all risk out of the mortgage market (right up until it disappeared up it's own arse)?
Or the experts that brought us the derivatives market?
Yeah i thought so....
Long winded way of saying hubris.
All you experts will never admit that the big changes in tech are always unforeseen, ergo the value of their expertise is moot. The speculators will hoodwink the investors that it is otherwise, trade, take their percentage - while the going is good, and when it all goes tits up the investors lose and the traders hitch a ride on the next bubble.
just a little bit boring
"A lot of people have talked about it being bad for innovation but I think the ability to enforce patents is a core aspect of what drives people to invest the huge sums of money that they do in R&D,"
Surely this is just another way of increasing the barrier to market entry for small businesses and innovators?
In any case, I can hardly understand how things like rounded corners can be considered particularly unique designs (even as part of a design identity) or innovations.