back to article Patent flame storm: Reg hack biteback in reader-pack sack attack

My piece on patents on Tuesday received a record number of votes of disapproval for a Reg article. I'm not in the least bit surprised. That's because in my analysis I advance an argument you don't hear very often in the tech world. Which is that the patent system gives us a huge social benefit. It's an irreplaceable component …

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  1. Tom 7 Silver badge

    'I would humbly suggest that if we can think clearly about innovation'

    there are too many people with too much to loose who will never let that happen.

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    1. Anonymous Coward
      Anonymous Coward

      Re: Where do I start?

      Lol. I actually think a few would consider no patents some form of improvement over the current system. IE, it's already down entirely to the court and how old a piece of paper is. There technically are no "patents" in the US from next year, just the "first person to write something down and have the record held by the Gov for proof".

  4. Smallbrainfield
    Happy

    I've never understood why you would ditch the patent system.

    Cases like Apple vs Samsung are just examples of why such a system needs monitoring and adjusting, not ditching entirely.

    Also, good sausages can be appealing before cooking, but they're best on a plate with some bacon and eggs. And maybe some black pudding. God, I'm hungry now. Why did you have to go and mention sausages, Andrew?

    1. Captain Scarlet Silver badge
      Facepalm

      Re: I've never understood why you would ditch the patent system.

      Why did you Mention Bacon O_O

      /me Stomach rumbles demanding Bacon white bread and brown sauce

      1. JayBizzle
        Trollface

        Re: I've never understood why you would ditch the patent system.

        Downvote for Brown Sauce, hang on am I in the right forum?

  5. Michael H.F. Wilkinson
    Thumb Up

    I agree very much (as I did in my post to the previous article) that the patent system needs repair, and the key is proper examination of patents. I know a patent (US patent 5,533,051, an analysis is given here) was awarded for a means and method to compress any string of bits without loss of information (even it's own output). Anyone with half a brain can see that this is (ahem) patently false, as repeated application of the method to any finite bit string would result in a zero bit string, which mysteriously should still contain all the information of the original. I remember commenting at the time that the process might be correct for certain types of music, because they contain no discernible information anyway (the precise type of music for which this holds may differ between people).

    Had this patent been examined properly, it would never have been awarded. The same holds for quite a few others (though fortunately very few are as stupid as the one abive). Having said that, there are plenty of inventions that thoroughly deserve protection, and the patent system, if properly implemented can provide that.

    1. Anonymous Coward
      Anonymous Coward

      It would cost a fortune to screen all patents up-front when they are applied for, but perhaps there could be a pre-screening process by relevant experts when someone tries to enforce a patent. In other words, it would be easy to get a patent, but to enforce it, you couldn't go straight to law - there would be a process to decide whether it should have been granted in the first place and, if the application was found to be frivolous, the patent would be cancelled and the assessment costs borne by the applicant.

      Possibly a six-month ban on making new applications could also be imposed. Repeat offenders (not necessarily Apple!) could face having all their other patents invalidated.

      Where a patent makes sense, this would still deter people from infringing it, but it would also deter frivolous patent applications and legal proceedings.

      1. Richard Gadsden
        WTF?

        <blockquote>It would cost a fortune to screen all patents up-front when they are applied for</blockquote>

        That's how the patent system is supposed to work.

        If someone isn't examining patent applications, then you've just identified what's wrong with the patent system.

        Patents require careful expert examination - that makes them, or should make them, expensive to acquire. Once acquired, though, they should require little defending in court because the patent office will have subjected them to a careful examination.

        The whole process is wrong - the cost should be stuck into the examination process, not the courts.

        1. Graham Dawson Silver badge

          Patents were once required to have a demonstration or a working model to accompany the application, which would significantly reduce the cost of checking whether the idea worked. You'd have a conclusive demonstration that it worked. It was eventually dropped as a requirement because of the warehousing costs.

      2. Aitor 1 Silver badge

        It is cheap

        Why do I have to pay 6.000$ for a world wide patent if it is just going to be filed?

        For THAT amount of money, the least they could do is submit it to an expert.

      3. Anonymous Coward
        Anonymous Coward

        It would cost a fortune to screen all patents up-front when they are applied for, but perhaps there could be a pre-screening process by relevant experts when someone tries to enforce a patent. In other words, it would be easy to get a patent, but to enforce it, you couldn't go straight to law - there would be a process to decide whether it should have been granted in the first place and, if the application was found to be frivolous, the patent would be cancelled and the assessment costs borne by the applicant.

        Possibly a six-month ban on making new applications could also be imposed. Repeat offenders (not necessarily Apple!) could face having all their other patents invalidated.

        Where a patent makes sense, this would still deter people from infringing it, but it would also deter frivolous patent applications and legal proceedings.

        ----

        When you think of new schemes, you need to always think about ways in which your great ideas can easily be gamed and overcome.

        To wit, you can't punish offenders by taking away their old patents. If you do, they'll just incorporate a separate company to own each of their patents, so the "all their other patents" you mention say should be taken away would always be exactly zero.

        You also suggest this new examination system that kicks in when a patent owner tries to go the legal route. What if they don't sue, and instead go the backdoor route and talk quietly under NDA to people they think they are violating their patents, as Microsoft did with Android OEMs?

        Instead of that, it has also been suggested by some that after initial approval by the patent office, to-be-issued patents could be published for some time period (30-90 days?) to allow competitors and other interested parties to attempt to provide prior art, show they are obvious, etc. That's fine for say Apple's patents, as there is now a small army of Apple haters who will gleefully commit their time to googling and thinking they are qualified to know what prior art consists of. But what if Apple started patenting under shell companies to avoid having it known which patents are theirs? What if some company no one has ever heard of patents something obvious, but no one cares, until it is approved and they become the next patent troll looking a billion dollar payday over something ridiculous like embedding video in a web page? What if some company that is today's darling becomes tomorrow's evil company du jour?

        1. Ragarath

          @Doug S

          "Instead of that, it has also been suggested by some that after initial approval by the patent office, to-be-issued patents could be published for some time period (30-90 days?) to allow competitors and other interested parties to attempt to provide prior art, show they are obvious, etc."

          Doug S, you wrote the above but I would like to ask how you expect that to work? An invention is always obvious after the fact.

    2. Geoff Campbell
      Boffin

      Oh, that's easy.

      I can write you a program today to compress any size of input file containing any random sequence into only 16 bits.

      The look-up table for the decompression process is a bit of a bitch, mind you.

      GJC

      1. Alfred
        Headmaster

        Re: Oh, that's easy.

        "I can write you a program today to compress any size of input file containing any random sequence into only 16 bits."

        Given that such a sequence has only 2^16 unique values, and thus can only represent 2^16 unique decompressed values, and I can think of more than 2^16 unique input files, I suspect that you're not telling the complete truth.

        1. h4rm0ny

          Re: Oh, that's easy.

          "Given that such a sequence has only 2^16 unique values, and thus can only represent 2^16 unique decompressed values, and I can think of more than 2^16 unique input files, I suspect that you're not telling the complete truth."

          To be fair, they didn't say they could also write a program that would decompress them.

          1. Alfred

            Re: Oh, that's easy.

            "To be fair, they didn't say they could also write a program that would decompress them."

            I must have misinterpreted that bit about the lookup table for decompression he mentioned. :p

            1. Geoff Campbell
              Happy

              Re: @Alfred

              I'm so glad someone is reading what I write.

              GJC

        2. Geoff Campbell
          Boffin

          Re: Oh, that's easy.

          Scope creep.

          I can extend the output size to 32 bits, or even 64 if you insist on being so profligate.

          GJC

  6. Charlie Clark Silver badge

    Strawmen

    It's interesting that the leader in this week's Economist, a paper not known for it's whalesong and subsidy love, drew significantly different conclusions in particular about juries decide on patent cases: Not every innovation deserves a patent. Not every copycat deserves a punishment. I found The Economist both more coherent and convincing.

    1. Andrew Orlowski (Written by Reg staff)

      Re: Strawmen

      Of course you support weaker IP. Your hobby is cloning someone else's. MRD therefore applies:

      http://www.urbandictionary.com/define.php?term=MRD%20applies

      Special pleading apart, The Economist recommends taking justice away from juries (citizen peer review) and giving it to an elite (judges).

      To understand patents you need to spend time outside the software world, and look at what other industries think. You'll get a very different picture.

      1. Charlie Clark Silver badge

        Re: Strawmen

        Another strawman - this time about my hobbies, about which I think you know less than you suggest and you further imply that I know little or nothing about anything other than software. Weren't the validated patents about software - the "bounce" feature and the design of icons? Design patents and copyrights are extremely limited as the case of Christoph Laboutin versus Yves Saint Laurent. And, of course, when it comes to industrial patents, Samsung has a quite few more than Apple.

        Add to this the disingenuous oversimplification and thus misrepresentation of The Economist's position on juries; or at least the referred to article restricts itself to patent cases and not "justice" in general, though I would contend that trial by jury is not the same as peer review.

        Judges are not necessarily elites but they may be specialists. But even within the realm of jury trials, the advice given by judges is crucial as evinced by http://www.economist.com/blogs/babbage/2012/06/oracle-v-google. Were you cheerleading for Oracle on that as well?

        You have previously provided an incisive understanding of the Apple business model: the ability not necessarily to be first to market but the one to provide the best user experience. Given this your current polemics seem a surprising volte-face: patents can be used to support the creation and maintenance of monopolies (the very antithesis of why they were introduced).

        Court cases like this considerably add to the costs of doing business in the United States of America. Reform of both the patent application and approval system as well as its enforcement may well become essential if America does not want to be shut out, especially as growth shifts to Asia. The whole thing is slightly reminiscent of the high tariffs imposed by America on imported manufactured goods in the 19th century.

      2. attoman

        Re: Strawmen

        Hear, hear!

        If software remains either the software must be translated to logic gates and other circuit elements (as all programs can be) or a standard set of terms must be required. The biggest problem of software patents is lack of precise descriptive language for the practice. I say this as someone who has multiple software patents and has seen insane rejections, or confused claims around uncertain meanings. Hardware patents even those with large software components are by comparison very clear even when language is arbitrary the actual objects bring clarity to the description and claims.

    2. attoman

      Re: Strawmen

      No "innovation" deserves a patent unless it is a style patent or copyright. Style patent is a patent for the specific shape, color and styling of an object, a different object doing the same function would not i fringe i.e., Samsung would not infringe Apple. An innovation in fact is a product and cannot be a basic or broad patent by itself.

      Many inventions however can be the source of one or more innovations. An innovation is a successful product that brings some perceived new element to its marketplace.

  7. Anonymous Coward
    Thumb Up

    Simple Solution

    Get rid of software patents.

    There fixed the patent system.

  8. Dave 15 Silver badge

    Fixing the patent system

    Allowing Apple to patent the shape of the iPhone is a lot like allowing GM to patent having a wheel at each corner of the car, somewhat non-original for a start.

    Patents in general are a two edged sword. While the 'inventor' can get royalties etc (assuming he can afford the law suits - which the one man band in his workshop at home can't) then the protection of the idea can - and often demonstrably does - prevent people building on the idea (standing on the shoulders).

    It is arguable whether people invent because they can get money, or invent because they are inventive and want to better the world.

    1. Steven Roper

      "Which the one-man band in his workshop at home can't"

      Nail on the head there, Dave. I wish I could upvote your post a dozen times.

      The patent system is geared towards Big Business and NOT individual inventors, in much the same way copyright is geared towards Big Media. It costs so much to register, let alone defend, a patent that only multinational corporations can derive any benefits from them.

      This makes any argument about "protecting struggling inventors", much like the furphy of the "struggling artist", specious in the extreme. A genuinely struggling independent artist has no more money or hope of defending her music from being plastered all over Pirate Bay, than a garage inventor has the ability to prevent his power-saving electrical circuit from being stolen or copied by the likes of Apple. The initial consultation fees of the lawyers alone are so far out of reach of either as to make the entire intellectual property system nothing more than a source of ammo for corporate warfare - and most importantly, as a tool for locking out the bedroom artist or garage inventor from protecting any innovations of their own.

      Until justice, as well as the intellectual property system, are easily accessible by everyone, not just the super-rich and their cronies, that system will continue to only serve to place our culture, and our very way of life, increasingly under the heavy-handed control of organisations whose very existence has nothing at all to do with enriching or bettering humanity and everything to do with filling their shareholders' pockets at the expense of the rest of us.

      1. Anonymous Coward
        Anonymous Coward

        Re: "Which the one-man band in his workshop at home can't"

        And I've mentioned this before and had the issue forced now.

        We arent a big shop here, theres five of us here, two in Canada. We've had an order for our products for use in the states and to be totally honest, despite doing our research I'm scared shitless of doing so.

        Do I walk away from potentially a huge opertunity to get our kit out there because I'm scared that someone, somewhere is gonna find a way to throw a sueball at us, or do I retain legal advise just to make a sale and take the hit that way.

        This is in no way, shape or form helping innovation. Its the small people like us, the new ones following the like of Dyson and Bayliss that bring a lot of the real game changers to the table, And its the same people now who are too scared to actually join the party just in case they accidentally step on some megacorp or patent troll's toes.

        If I piss off (picking a name at random here) APC, they will throw a case at me, legitamate or not, I cant defend that, I'll just sell the tech in question or fold. There are enough 'sharks' in our area of work to make me uneasy enough to just walk away from a whole market even though I know I've done nothing wrong. Patents were never intended to be a weapon and thats how they are being used now.

        What worries me is someone managing to slip 'one under the mat' and discover something we are using that was in the clear now isnt. For the system in question we relay on a lot of prior art wich is currently in the public demand, but if somoene managed to do something nasty ie EIA485, CSMA/CD, or any of the off the shelf stuff we do I'm stuffed. When people on these forums get all upset about people yelling 'prior art' I think they are missing the potential for damage and undermining the whole system, that allowing these patents to go through does. Take an earlier example, somone slips through a variant of CSMA/CD through with another name, its allowed and then we have a problem because everyone using Ethernet and many other media types suddenly owe royalties.

        Patents are good, Copyright is good, thats not the argument here. The argument is that through the abuse of big business/laziness/ineptitude of the institutions responsible for implementation and general lack of any coherant plan to 'fix' them, neither Patents or Copyrights are fit for the purpose intended anymore.

    2. slhilly

      Re: Fixing the patent system

      No, allowing Apple to patent the shape of the iPhone is a lot like allowing GM to patent the shape of a Chevy model. And funnily enough, that happens all the time. Here's just one example for you, but there are many many more:

      http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO2&Sect2=HITOFF&p=1&u=%2Fnetahtml%2FPTO%2Fsearch-adv.htm&r=1&f=G&l=50&d=PALL&S1=D0613645&OS=PN/D0613645&RS=PN/D0613645

      I really don't understand why people persist in believing that design patents (and trade dress protections) aren't routinely used in other industries...

      1. vmistery

        Re: Fixing the patent system

        Err No. The difference being that they are not patenting the design of 4 wheels and a chassis they are patenting an entire design. Apple are simplistically speaking saying that a rectangle with rounded corners is worthy of a patent. A car can be far more different.

        1. Anonymous Coward
          Anonymous Coward

          Re: Fixing the patent system

          Assuming the patent office wasn't up and running when cars were first being created, there were may iterations of the car, with three or four wheels in different iterations, with the pedals existing (or not) in different configurations, steering wheel or levers, and lights, horns etc all over the place, rather than a standardised placing that has become what we expect. As I udnerstand it, and am ready and mentally prepared to be proved wrong by shouting fandroids, Apple's rounded corners was not on it's own the entirity of the case, and the entire look and feel of the device was what was being reviewed, rather than the whole case being pinned on the curvature of the intersection of external edges...

          Therefore four wheels at each corner of teh chassis could be compared to a microphone-near-your-mouth-speaker-near-your-ear design that all phones need, and the design of that and the look and feel is the Chevvy aspect that distinguishes the phone...

  9. Pete 2 Silver badge

    Good system, gone bad

    The patent system is as broken as the copyright system - and for the same reasons.

    Both started out in an innocent, idealistic world: let people who make things profit from them and be protected from nasty, naughty people who copy them and don't acknowledge (and by acknowledge, I mean "pay") the original creator, for the work they put in.

    However both systems have been hijacked by "Big IP" companies, that don't innovate, themselves but simply deal in commodities and harvest the profits. The original creators don't profit from developing their ideas and directly receiving profits, at best they sold the patent and suing rights - at worst they were simply employees and are regarded as "assets", themselves.

    By evolving a life of their own, outside of the world of innovation, both patents and copyrights have become the biggest obstacle that most individuals and companies face when trying to do something new. Whether that's because even the dumbest, most trivial (software) idea can, and is, patented - thus closing off vast avenues of innovation to all the other people who are in the same line of work. Imagine if an early music company had "patented" a popular chord progression and sued anyone else who tried to use it? Where would Orlowski's "huge social benefit" be there (apart from maybe putting Status Quo out of business)?

    Patents and copyright are useful when there is a direct link between the inventor/creator and their use. Provided those rights are strictly limited, tightly defined and don't hamper the original work others (for instance by being continually extended, while there's still money to be made). Both systems should get back to basics and work on a "use it or lose it" basis, to stop patent warehousing making any innovation impossible.

    1. Luther Blissett

      Re: Good system, gone bad

      > Patents and copyright are useful when there is a direct link between the inventor/creator and their use.

      You mean like the link between the means of production and the consumption of the surplus value derived therefrom? As outlined in Marx, Das Kapital, volume 1, which alleges it to be the fundamental problem (nay, contradiction) in capitalism?

  10. Sam Liddicott

    consider fertiliser that fed the grass roots

    While your article was reasoned and so is your response it omits to consider the valid grounds from which the dissenters arise - they were dissenters before you published your piece.

    Apple's patent battle failure in Tokyo, Germany and UK is noticed and isn't without implication; and Apple's strategy is widely considered an abuse recognized on publications more notable than this one.

    It is likely that the more vocal opponents of what is wrong are the more extreme, but the position that proponents of patents mean and that nice people benefit as well hardly answers the objections.

    Your piece merely attracted the attention of a well established artillery.

    1. Simon Harris

      "consider fertiliser that fed the grass roots" ...

      A nod to the first patent (number X1 in 1790) to be issued by the US Patient Office?

    2. Anonymous Coward
      Anonymous Coward

      Re: consider fertiliser that fed the grass roots

      Then Samsung is a bigger abuser since it has lost cases in the UK, USA, Germany, France, Italy, Australia and Holland. That dosen't get mentioned because it dosn't fit the narrative you are trying to spin.

  11. fandom

    You know who else hated patents? Kim Jong-il

    On the other hand Vinalon is the 'official' cloth on North Korea. It may stiff, uncomfortable, hard to die and whatever, but North Korea owns the patent.

    1. Anonymous Coward
      Anonymous Coward

      Vinylon patent?

      Actually I think you'll find that it's assigned to the Institute of Japan Chemical Fiber.

    2. Andydude

      Re: You know who else hated cheese sandwiches? Hitler

      I like ham sandwiches like Winston Churchill so therefore I am both right and nice.

  12. Chemist

    Skilled in the art

    "supposed not to be granted if the "invention" would be "obvious to a practitioner skilled in the art"; sadly virtually all patents that are granted would fail that test."

    The first part is true - the second is rubbish.

    1. This post has been deleted by its author

  13. Chemist

    Patent examination

    I certainly know from all the patents I filed that writing them was HARD work and the UK patent office in particular would be VERY picky about potentially related prior patents.

    (Although all this Apple/Samsung stuff isn't really about what most people would call inventions anyway)

  14. Chris Miller

    Actually, it was the legislature, not the judiciary that was first compared with sausage manufacture:

    Je weniger die Leute darüber wissen, wie Würste und Gesetze gemacht werden, desto besser schlafen sie nachts. (The less that people know about how sausages and laws are made, the better they sleep at night.) - Prince Otto Eduard Leopold von Bismarck, Duke of Lauenburg (1815-1898)

  15. Dr.S

    The real question comes at the very end

    The question is how to fix it though. When I started studying the patent system many years ago, I thought that this was an exceedingly hard but achievable goal, but I'm no longer so sure about the achievable part. During this time, the relevant point of influence seems to have drifted from the WIPO to the WTO and onward to multilateral trade agreements where outside influence seems very hard to achieve. I am about to give up on the whole idea of patent reform. Amusingly enough, it seems that big moneyed outfits such as Google are one of the few new actors to have a chance of making an impact, and even they are struggling.

    Saying that the patent system is sound in theory, but bad in practice is not necessarily an argument for it conferring more good than bad currently. It is rather an expression of either wishful thinking or ideology.

  16. Dick Emery
    Stop

    Patent system not broken

    I would not say the patent system is broken per se. I would say the way the system works to benefit large corporate interests is. When you are super rich you can afford to hire a team to sit there all day scouring for things that are not patented. Create your own patent on ideas that have not yet come to fruition. Or. Although has prior art nobody actually patented yet and pay what is a relatively small fee (to the corporation but not the average guy) and sit on it if not yet invented in the hope you can extract royalties later. Or. Use it right now (as in the Apple vs Samsung cases) to sue those who did not patent it first.

    It's actually relatively expensive and time consuming for the small guy to patent stuff. Even looking up whether something has already been patented is a bit of a chore and cost. But for large corporations it's their bread and butter. Apple have found a unique corner of the market in this respect.

    Apple is abusing the system (like many other large corporations do). There should be a law in place to prevent this type of behaviour.

    1. Anonymous Coward
      Anonymous Coward

      Re: your English is broken

      "Or." is not a sentence.

  17. Captain Underpants

    "The system needs to be fixed. Where do we start?"

    It would probably have made your original article a lot more balanced had you acknowledged this to start with, rather than presenting the issue as a set of binary options (either "Patents are inherently brilliant and never abused" or "I HATE PATENTS AND ALL ABILITY TO EVER MAKE ANY MONEY EVER BECAUSE OF REASONS"). But anyway.

    I would venture that a generally acceptable starting point on fixing the problem with the the patent system as embodied in the USPTO (which is where most accusations about failures in the patent system are aimed) would be:

    * stop offering incentives based on number of patents approved

    * implement a better prior-art examination system (you could possibly include some public-facing "submit prior art you think is relevant to this application" mechanism)

    * enforce sharing of infrastructure-level technology with FRAND-type licensing

    * for technology in particular, ensure that the effective lifespan of patent-related licensing rights is commesurate with the expected lifespan of the technology

    Things I'd like to see would be a "use it, licence it or lose it" option for patents whereby someone sitting on a patent and insisting on ridiculous licence fees (ie substantially greater than their costs of development) while doing nothing to bring a product to market can have the patent appealed and, ideally, put into the public domain if they lose the case. That in itself would, I think, help cut down the amount of vexatious patent-related litigation.

    1. Pete 2 Silver badge

      One small step

      I would suggest the only real fix the patent system needs is to make patents non-transferable.

      Change their status from being a "good" that can be bought and sold, or otherwise having a value to being a recognition: something that confers a right directly on the patenter, but not on any subsequent parties.

      So when the patent-holder (be that a person or organisation) ceases to be: either through death, bankruptcy or acquisition, or after a set period of time (long enough to be an incentive, short enough to not stifle innovation) the patent simply goes away. After that anyone and everyone becomes free to make, use, develop or sell the subject of the patent, without any fear of litigation.

      1. Captain Underpants

        Re: One small step

        Hmm.

        The problem there is that if a patent can't be transferred, but becomes public domain upon the collapse of a company or death of an individual, what you do is create a system whereby there is an incentive for individuals and/or organisations who wish to use a patented idea without paying for it to commit murder and/or play Hostile Capitalist Silly Buggers in order to force the patent into the public domain. Whereas when transferability exists, they play a slightly less murderous version of the game whereby the patent holder is convinced to sell it to them - and this is preferable (to those who might other be murderously inclined) because the idea remains exclusively theirs rather than in the public domain.

        I do agree that trading in patents is problematic, and in general as with copyright the duration should generally be shorter unless evidence can be provided that suggests a generally long lifespan for the tech itself.

      2. Alan Brown Silver badge

        Re: One small step

        Unfortunately, making them non-transferable would result in a lot more smaller inventors dying penniless than already happens.

        Patents (and copyrights) are very necessary. The problem is the system is being gamed by abusers and needs an overhaul to get rid of the huge amount of prior art which is getting through in the USA as well as the flat-out unfair legislation which has been passed to extend patent and copyright periods well beyond "reasonable".

        There's also a lot of confusion because the US also calls "patents" what the rest of the world calls "registered designs".

        Many years ago the USPTO faced a lot of litigation because it was "too strict" in issuing patents and it's swung to the other extreme. Hopefully things will stabilise in a reasonable time.

  18. Anonymous Coward
    Anonymous Coward

    Patents wouldn't be quite so bad if enforceability weren't directly tied to how much cash you already have. Innovation could quite easily be stopped by the mere utterance of a threat from a megacorp's legal department.

  19. Mystic Megabyte
    Trollface

    Cave-in

    I have an ever increasing mental list of companies that I do not want to do business with.

    Apple have joined that list because they appear, rightly or wrongly, to be big bullies.

    My problem is that, at this rate, I *will* have to live in a cave because *all* the globalized corporations seem to be becoming evil bastards. Not caring for their customers and not wanting to pay tax for example. In some cases (banks?) not caring for their shareholders either.

    <------- Troll icon because I might have to live under a bridge after someone patents cave dwelling.

    1. chr0m4t1c

      Re: Cave-in

      What do you mean "becoming"?

      They're all evil bastards, they always have been, if you think that any of them aren't I can guarantee that it's only because you haven't looked at them deeply enough yet.

      It doesn't matter how altruistic the founders of the company were, once it gets beyond a certain size it will start attracting the greedy money sharks and as soon as one of them gets into a position of any kind of power they begin the downward moral side. If you have people at the top with sufficiently strong personalities you can delay things a bit, but ultimately it's inevitable.

      The main problem? Once you get to a certain level in a company it's almost impossible to do anything that results in you making less money. CEO takes company from massive profits to bankrupt inside a year? Kick them out, but make sure they takes four years salary with them and if possible set them up with a new job (as a CEO again) in a few months.

  20. b166er

    A couple of observations:

    It's not 'the patent system' or 'North Korea', there are areas in between.

    "This hole is cold and damp - I want to live somewhere less rubbish." THIS is exactly why we don't need an over-bearing patent system! No-one wants the same old thing day in day out (except me), so there will always be imagination which will always lead to new things. If certain ideas weren't locked up under the bondage of patent, others might indeed be MORE keen to explore taking those concepts further.

    An example of ridiculous: Apple think a tap to unlock should count as a zero length swipe! Talk about stifling innovation.

    Why can't the 'free' market decide what it wants by buying the BEST product, rather than the most protected product?

    Besides, you've only got to light a fire and the hole is then warn and damp!

  21. Tony Paulazzo

    >In truth, even most anti-intellectual-property agitators who get very angry about copyright acknowledge the quite staggering creativity and innovation that is unleashed by the patent system.<

    You mean 'in spite of'. /sarcasm

    >So, seriously: the system needs to be fixed. Where do we start?<

    Fine the patent office if anything gets approved that isn't non obvious or already patented, for eg, slide to unlock (like a bolted gate ). Twice what the patentee paid seems fair.

  22. wim

    patent office

    Maybe the patent office should be made (partially) liable to the quality of patents they award ?

    If an awarded patent turns out to be without merit through prior art the patent office will have to pay a certain amount of money to the applicant. But if the patent office finds prior art for something that the applicant tries to patent, the applicant has to pay a fine.

    Just a thought

    1. Anonymous Coward
      Anonymous Coward

      Re: patent office

      Maybe the patent office should be made (partially) liable to the quality of patents they award ?

      If an awarded patent turns out to be without merit through prior art the patent office will have to pay a certain amount of money to the applicant. But if the patent office finds prior art for something that the applicant tries to patent, the applicant has to pay a fine.

      Just a thought

      ----

      This idea stacks the deck even more in favor of big companies! They can afford the fine for filing a patent in which prior art is found, but this makes it less likely for the little guy to risk it (and if you say "OK, how about if the fine is based on the size of the company", big companies will create separate corporations to file each patent so they only pay little fines)

  23. Anonymous Coward
    Anonymous Coward

    Interesting...

    Whilst I agree that the patent system is there to protect innovation and investment, it is starting to become a weapon of mass destruction.

    Yes we see Apple vs Samsung, but the idea of the little man defending his rights, is most likely these days is the little man just giving up and surrendering them.

    You state how it's up to a Jury to decide if it's valid, how is the average Joe supposed to afford this?

    If I say that actually I invented the rounded square, how would I take on Apple? All it would take is for Apple to go, "nope that's not quite the same?" and I'm screwed. I've a few quid I could afford to battle it with, about the same a 1 hour fee for Apple lawyers.

    The system no longer appears as a system for the poor inventor to protect themselves, but more the mega-corp to bully others.

  24. JetSetJim Silver badge

    How to fix it...

    Part 1: chuck out "design" patents that don't actually deliver different functionality. Samsung has "design patents" on tellies that, well, look like tellies. Ditto Apple.

    Part 2: chuck out software patents. Wouldn't be surprised if 99.999% of them fall into the "bleedin' obvious" category and, given the range of tools and savvy programmers, at the very least the bar should be greatly raised for the award of same

    Part 3: Get rid of the weird patents that aren't implementable yet - more like this:

    http://worldwide.espacenet.com/publicationDetails/biblio?CC=WO&NR=9939598&KC=&locale=en_ep&FT=E

    less like this:

    http://www.google.com/patents?id=-FUVAAAAEBAJ&printsec=abstract&zoom=4#v=onepage&q&f=false

    Part 4: open up peer review for prior art submission to the general masses. There's too much for patent examiners to do, and it needs to be easier to chuck out patent applications rather than let the examiner go "hmm, Google can't find any prior art so it must be good" (not that they're that lax in the PO!)

    or has someone patented some/all of the above and the PO can't enact them for another 20 years....

    1. Luther Blissett

      Re: How to fix it...

      Peer review? As in University of East Anglia Climate Research Unit and pals?

  25. This post has been deleted by its author

  26. Steve Todd

    Richard's basic hypothesis is wrong

    Ignoring for a moment the technical inaccuracies (OS X is based on Mach UNIX, Apple paid Xerox for the idea of WIMP interfaces etc), the idea that Apple don't contribute back to the public domain is wrong on two fronts. Firstly they have active PD projects that they contribute to (WebKit, CLANG and OpenCL to name a few), and secondly as Andrew states, any patented method becomes PD when the patent expires.

    There are many much worse companies out there, but the idea that someone would attack the sacred cow of an open source project is what seems to have got Richard and people like him all riled up. This carefully ignores the fact that there are big businesses making lots of money off of this project, and in Samsung's case changing it to be MORE like Apple's products. Open source per se isn't under attack, just the idea that it shouldn't follow the same rules as commercial projects when it comes to IP infringement.

    1. Charlie Clark Silver badge
      Thumb Down

      Re: Richard's basic hypothesis is wrong

      Apple has history of screwing over other people's IP: the use of Adobe's technology in Quartz; the ODBC manager supplied with Mac OS. Their open source reputation isn't without it's blemishes either: Snow Leopard came with a borked version of Python that Apple had kept secret about.

      1. Steve Todd
        Stop

        Re: Richard's basic hypothesis is wrong

        And more inaccuracies come along on cue. Adobe open-sourced PDF but wanted quite a lot of money to use Display Postscript. Leveraging PDF to do the job of Display Postscript was completely within the rules, and Adobe's fault for making it a positive disadvantage to continue with Display Postscript.

        ODBC = Open Database Connectivity, it's a Microsoft standard so even if you ignore the Open bit then Apple have a cross licence. You don't have to use Apple's version (they've stopped shipping it even) but most modern software doesn't try to abstract the SQL engine anyway, preferring the performance of native drivers.

        Python? A new version of an OS screwing up a dev environment doesn't imply malice, and newer versions of Python work quite happily.

        Once again, Apple are far from perfect, but they contribute some popular widely used components to the open source community, which is more than can be said for a company like Samsung.

    2. eulampios

      BSD

      OS X is based on Mach UNIX

      Darwin's kernel is based on some microkernel ideas from Mach project. It uses a lot of other ideas from BSD too, the userland is mostly FreeBSD's. The default shell of Mac OS X is GNU bash .

  27. This post has been deleted by a moderator

  28. Anonymous Coward
    Anonymous Coward

    In the article it's written: "The core idea - giving a short-term exclusivity to an inventor - is the best thing we've come up with so far to unlock value and spur innovation."

    This is one of the points were the patent system is currently broken, especially in the context of software and broad patent: The USA patent system protects the invention for over 20 years.

    In the context of software this is an eternity, and completely unreasonable when compared with the time necessary to actually develop the invention itself.

    1. Dick Emery
      Facepalm

      Time waits for no man

      By the time any deficiencies in the patent system are addressed we'll have new novel innovations to contend with and more loopholes to be exploited. The problem is that the system does not move fast enough to keep up with technology.

  29. Anonymous Coward
    Anonymous Coward

    Come on, Mr. Orlowski, you can surely do better

    Argument one.

    Two of Apple latest patents to use against Samsung are slide to unlock (now how many public and private toilet doors are using some sort of a latch that slides horizontally ?) and text correction (who would have thought of that ?) You're trying to tell us Apple deserves protection for this piece of brilliant creativity ?

    Argument two.

    Especially in mobile phone space, each device is considered to infringe on thousands of patents. How long it would take a company to study each and every of them them modify its design accordingly ? Besides that, many those patents are so broadly formulated that you have no idea if your product is infringing them or not so they will have to be decided in court. Besides that, studying those patent will surely make your infringement a willful one in front of a jury in case you lose. Is this the system you're preaching ? Sorry but Kim Jong-il is a dictator not an imbecile.

    1. Anonymous Coward
      Anonymous Coward

      Re: Come on, Mr. Orlowski, you can surely do better

      Two of Apple latest patents to use against Samsung are slide to unlock (now how many public and private toilet doors are using some sort of a latch that slides horizontally ?) and text correction (who would have thought of that ?) You're trying to tell us Apple deserves protection for this piece of brilliant creativity ?

      ----

      Apple should not be able to patent the IDEA of text correction, but if they specify the steps of how it is done on an iPhone I don't see why it shouldn't be valid. Text correction as it has been done on computers for years isn't the same as text correction as it is done on an iPhone, because the touchscreen and small keyboard with zero tactile feedback mean you miss the letter you intended to hit in a way that rarely happens on a real keyboard, and it is also possible to determine where you hit the letter you did hit (so you can use that information to better guess which letter was intended)

      Different methods can be used to learn what words a user commonly mistypes/misspells (i.e., your iPhone eventually learns when you type fuck you mean that, and not duck) It could also take grammar into account to correct their/there/they're its/it's and so on (it doesn't do this, but that would be a way for competitors to roll their own version that doesn't violate any Apple patent should it be upheld)

      I'm sure there is plenty of other ways to improve it that it either already does, or doesn't do, so the fact Apple is apparently trying to enforce a patent on it doesn't mean that they are claiming that they own any possible implementation of spelling correction on a touch screen phone. If they are, then it should not have been approved as it is not possible to patent an idea.

      Slide to unlock may be a silly patent for which sliding door locks may or may not constitute prior art for, but it is most certainly a patent on a specific implementation and not an idea, as there are a lot of ways to unlock a phone that don't violate it. Such as the zig zaggy dot drawing that Android uses, hitting hard buttons in various ways, pressing and holding one or more fingers on the screen in a certain location, using the front facing camera for face recognition or eye detection, embedded thumbprint sensor on the home button (rumored to be coming in a future Apple device) and so on.

    2. Tom 38 Silver badge

      Re: Come on, Mr. Orlowski, you can surely do better

      …Apple latest patents to use against Samsung are slide to unlock (now how many public and private toilet doors are using some sort of a latch that slides horizontally ?)

      And yet, before Apple deployed this technique on their very first phone, no other touch screen device was using this "obvious" solution. A few years after, and every single one of them is. Why was it not obvious on WP 5 devices?

  30. Anonymous Coward
    Anonymous Coward

    Come off it

    Mediaeval systems of government-backed monopolies on ideas are not a good thing. That's all there is to it. There's no point in pretending that patents are anything else, even if there was a time when they were not.

    1. slhilly

      Re: Come off it

      Why aren't they a good thing?

      Your description, using words like "mediaeval", reminds me of Robert Heinlein's description of sex as the "slippery friction of mucous membranes", ie using emotively-loaded language to discredit an idea. You have to show why the fact that patents originated a long time ago means they are a bad idea. Many old ideas are quite good. Many are bad. It's not age that makes the difference. Similarly for your other terms / complaints: "government-backed", "monopolies", you have to say why these are bad ideas.

      http://the-sky-away.livejournal.com/70446.html

  31. mattblack

    The big question is whether patents work for the benefit of society

    The theory of why patents should work for the good of society is well known. But the empirical question (ie whether the benefits actually materialise) is much less studied.

    There is a body of evidence that suggests the benefits are not seen in reality and that most intellectual property restrictions have been bad for us, at least since the early patents on the steam engine which held back progress for decades. There is a good summary of the arguments and the evidence on the skeptics stackexchange site here: http://skeptics.stackexchange.com/questions/6647/do-patents-boost-innovation

    (I wrote one of the answers summarising the book-length case from Against Intellectual Monopoly available as a pdf for free here: http://www.dklevine.com/general/intellectual/againstfinal.htm )

    In summary: the benefits of patents are not as obvious as the normal arguments for them would lead you to expect.

  32. Stu J

    Patent life proportional to investment in innovation

    Here's a suggestion.

    The lifetime of a patent (and hence the revenue you can reclaim from it) should be directly proportional to the amount of time/effort the innovation took, based on critical peer-review.

    "Sure, Apple, you can patent the rounded rectangle for a smartphone. Your patent is valid for 20 minutes, and has already expired, because any reasonable brainstorming session could have come up with that."

    "Sure, [Pharmaceutical Company], you can patent the cure for all cancers, your patent is valid for 50 years, because you've been working on it for that long, and you've ploughed billions of dollars into getting there".

    1. david wilson

      Re: Patent life proportional to investment in innovation

      >>"The lifetime of a patent (and hence the revenue you can reclaim from it) should be directly proportional to the amount of time/effort the innovation took, based on critical peer-review."

      That'd be great if there was some way to make it work objectively, but it's hard to see how it could easily be objective - for some good idea which someone might well have thought of relatively soon, a year's difference in protection could mean a lot of money made or not made, and if you had no idea how long the patent would be decided to be valid for before applying and putting the idea in the public domain...

      Maybe it'd be better to change the definition from 'obvious to someone knowledgeable in the state of the art' to something a little tighter, especially for areas of fast-moving technology where it's not necessarily at all clear who a real expert would be, except by using hindsight.

      For example, given that touchscreens existed ages ago and using [mouse/tablet] gestures to do stuff has been around since at least the mid 90s, it would be pretty unavoidable that faced with a tablet or touchscreen phone, numerous people would have been likely to be playing with gestures sooner rather than later, and hence gesture-based ideas would have been fairly inevitable even in the short term.

      A time/effort based assessment would be pretty tricky in the case of 'flash of inspiration' (or just straight lucky) ideas, which might involve fairly little effort on the part of the thinker other than recognising the value of the end result, but might have been fairly unlikely to have been soon thought of by anyone else, or ideas which someone pursued as a result of being inexpert enough not to know a direction was thought likely to be a dead end.

      If I sat in a room for 20 years playing with all kinds of different ideas and eventually came up with something worth patenting, what would the appropriate measure of 'investment' be - the time spent in the actual field I was eventually successful (and/or lucky) in, or the 20 years I spent doing playing in all kinds of other areas without any luck?

      If I worked in a company which paid numerous people to play with ideas, should they be able to claim far more 'investment' and hence justify far higher returns due to the cost of employing everyone else than I could have claimed if I'd been working for myself, even when the idea is the same?

  33. Ocular Sinister
    FAIL

    Your argument has one of the laziest fallacies

    Reductio ad Hitlerum - or a slight variation thereof.

  34. C Ridley

    Plus ca change...

    “But he’s a smart man too, Will. He showed me a new kind of windmill he’s invented—goddamnedest thing you ever saw.”

    “Oh, Lord,” said Will, “here come the patent attorneys again!”

    “But this is good,” said Horace.

    “They’re all good. And the only people who make any money are the patent lawyers. Drives my mother crazy.”

    “I guess you’ve got a point there.”

    Will said, “The only way to make any money is to sell something somebody else makes.”

    “You’ve got a point there, Will, but this is the goddamnedest windmill you ever saw.”

    John Steinbeck - East of Eden, 1952.

  35. This post has been deleted by a moderator

  36. Turtle

    "No one. At all."

    Andrew: what did you expect? Well, I am sure that you aren't too surprised.

  37. Banker
    Thumb Up

    We have to have a Patent System

    Although I didn't like Apple winning that case, I thought Andrews piece was an attempt to get a decent conversation on the subject started, no more slanging match slanging match slanging match (Tech echo chamber!) please!

    There are claims here that the Patent system is wrong, bad, government control, is only for the big boys etc etc and at the high end of Tech biz, I admit it does seem that way sometimes. But I think the system is an absolute necessity, it needs improvement for sure, but an absolute must have for a society that uses money to function.

    In the mid naughties, I visited the Patent Office in the UK for a free advisory session, as I had an idea and wanted to see if it was patentable. After a very positive session, I then went to find out the costing for 'searches' (to see if your idea will clash with any other patents) and then UK, European, US and 'World' patent costs. Not a huge amount but enough to make me look closer at the value and marketability of the idea itself. Had I chosen to proceed with the idea, the amount I would have to have invested in design/manufacture/distribution was considerably more than the patent costs, and the patent would at least offer me some protection whilst I set about investing in the product itself. I can't see how anyone would set about investing in a completely new idea without this protection, especially where the idea can easily be copied - That isn't control, bad or evil, it's freedom.

  38. vmistery

    For me its quite simple, if you actually invent something say a new fuel or design a whole new OS from the ground up or whatever then sure Patent it, you deserve it! Whats not acceptable is for a company to patent something that really isn't an invention for of a modification to an existing design.

  39. PassiveSmoking
    Thumb Down

    I see a lot of words...

    ... but all I'm hearing is "waaaaaaaah".

    Patents? Okay, fine, no problem with that as long as they're evaluated with due care and attention.

    Problem is they're not.

    And patents on software should have never been allowed. Software is maths and you can't patent maths. Besides, in a field that moves as fast as computer science, 20 years of exclusivity is horrendously damaging.

  40. Pahhh
    Stop

    Yep, I do patents and have more comming....

    Ok , firstly, full disclosure, I have patents with my name on it. I have a bunch that are filed and pending examination.

    So do I believe in patents? Yes / No. My patents are software related patents and that is one area that I think that patents are not helping innovation but hindering it.

    I’ve had to create patents for two reasons; one as a measure of innovation to investors and so that in a case of a patent dispute they are a bartering chip.

    Patents in other industries are useful and necessary. In the pharmaceutical industry there would be no point investing 3 years of research and the cost of getting the drug through medical trials if someone could just copy the final product for pence on the tablet.

    Software however is different. We are now at the stage where many things that are invented are natural evolution. In truth, good software is less about innovation but execution, how well the stuff was written.

    There are some industries where big companies create as many patents as possible. In my industry I would hazard that every product is probably infringing on some other company’s patents. I know having done some recent reviews where someone asked me if a particular bunch of patents were a problem for us, it turned they weren’t but I know of least 3 other products for which they were.

    The problem is creating these patents costs money , a lot of money. You can easily spend £5k+ per patent. If you are a small company you cant afford to do many. What is more you also certainly cannot afford to check that everything you do isnt infringing on someone else.

    You can easily spend years working on a product and find that as soon as you may some headway in the market and someone pulls a patent that says you infringe. The problem is you may not even have the funds to fight the case even if you are in the right.

    I am now at the stage where after this particular venture, I will never start a small company again. Or if I do, it won’t be in software.

    So any comments on how software patents can help innovation is naïve.

  41. pwibble
    Flame

    Fixing the Patent System - Tricky but possible....

    So, first of all I'm not fundamentally against patents or intellectual property in general. Basically they are a "good thing".

    Secondly, Apple is a real innovator not a patent troll. And clearly other companies are copying their stuff, so they should get paid for that. This seems reasonable to me. Or are you trying to tell me that the Galaxy tablets and Android are in no way influenced in their design by the iPad and iOS?

    However, the current patent system fails on many points.... let me give you my thoughts on that....

    First of all it rewards coming up with ideas and not actually taking those ideas to market. Both parts of this are (equally?) difficult. So, if I patent idea X, then do nothing about it but just wait until someone else later independently thinks of idea X and implements it in the market I can sue them. That doens't sound right. So, I would say that if you come up with a patent but don't follow up with implementation and product you should lose your rights to the patent. Patent trolling is bad for everyone.

    Secondly, if I own a patent I can totally stop production of a competitive product, sometimes _prior_ to getting a ruling. That isn't helping consumer choice. So, I woud say an independent board (tricky, I agree) should set license fees and it should not be possible to block competitive products - it should just be mandatory to pay the patent owners.

    Thirdly, patent length should be variable according to likely time to market. I would propose that the patent office should determine how easy it is to implement a patent. This shoud be something like "How long should it take to bring this to market?". if the answer is "10 years", then the patent length should be 10 years longer than if the answer is "1 day". The likely result of this is that software patents would be shorter than most other patents, and that's a good thing.

    Finally, there should just be less patents. Patents should be for things that are _really_ innovative. Tricky, but actually not really. Just take the current patent system and the patent office gives each patent a score for "innovation". In my view the bottom 90% should just be rejected.

    By the way, about the article - so, if someone bad agrees with you then your idea is bad. Poppycock. Kim Jong Il wore clothes therefore we should all go naked.... etc. sorry, but this is just a failed rhetorical concept.

    1. Pahhh
      FAIL

      Re: Fixing the Patent System - Tricky but possible....

      "Secondly, Apple is a real innovator not a patent troll."

      Yeah... really? Give me some examples?

      Apple's products are a natural evolution of modern material, increased battery life and increased processing power. They are however great designers.

      Apple and Steve Jobs in particular (god bless his soul) is one of the biggest exploiters other people's ideas. ref Xeroc PARC. Sony produced an MP3 walkman before the iPod. It was very nice too. The concept behind the iphone isnt new.

      Don't get me wrong, I got an iPod, iPhone 3 and 4, iPad 2. I like their devices, they are beautifully designed but innovative no. You misunderstand the term.

      And yes they are patent trolls. Rounder corners ffs.....

      1. Tom 38 Silver badge

        Re: Fixing the Patent System - Tricky but possible....

        Rounded corners is a 'design patent', which isn't a patent at all, but a registered design. It doesn't have to be innovative, it is simply protecting the ornamental design of the object from being copied.

        An example of this would be the Coca Cola 'contour' bottle, and an analogue to the Apple/Samsung case would be Pepsi bottlers using an almost identical contour bottle.

        1. Pahhh

          Re: Fixing the Patent System - Tricky but possible....

          Yes, I am quite aware its a design patent but rounded corners on devices that all have rounded corners is not clever design.

          Coke bottle analogy is a good one as the bottle is somewhat iconic. The Apple design isnt. Rounded corners is too broad. Its like Coke saying the general shape of a bottle is unique. It isnt.

      2. chr0m4t1c

        Re: Fixing the Patent System - Tricky but possible....

        Er, Sony's first digital Walkman was the NW-HD1 and launched in 2004, some three years after the iPod, I think you might be getting confused with the Diamond RIO which launched in 1998.

        But, of course, the innovation wasn't the player itself, it was the iTunes store - it was the only place you could go to (legally) buy digital music from all of the major rights holders at the time.

        And don't forget the marketing, while other manufacturers were saying things like "64Mb, plays MP3, WMA", Apple just said "1,000 songs, in your pocket" - which cuts very nicely through the jargon for non-technical people.

        Xerox GUI? Why yes, they did copy it. Because they entered into an agreement with Xerox to do that. Xerox even sent engineers to Apple for around 6-9 months to help them do it, so not exactly stealing.

        I think you're looking in the wrong place for the innovations. Yes, the iPhone hardware wasn't new, neither was the touch screen, nor was the integration of a music player.

        The innovation was the relentless effort they spent on trying to make the user experience as slick and as simple as possible. Don't forget that at the time, smart phones were almost entirely in the hands of power users and technical people because your ordinary Joe couldn't see the need for one and thought they were unbelievably complicated. What Apple did was try and distil the essence of the smart phone into a device that was (at the time) an incredible joy to use - particularly when compared to the bulk of the competition.

        Yes, I understand that <insert personal phone name here> was much easier to use. But no-one was buying that or talking about it, in case you didn't notice.

        BTW, I'm also well aware that they actually oversimplified the phone and really launched a feature phone.

        As I said, you're looking in the wrong place. Apple's innovations are almost always in the design and marketing arena (e.g. try and find anyone selling anything other than a beige box before the iMac launched).

        Rounded corners? No. The complete design? Yes. In the same way Levis had (have?) a design patent for the 501, not for "blue" or "two legs". Then again, understanding the argument and the facts would spoil the playground name-calling that we use instead of informed debate...

      3. pwibble
        Gimp

        Re: Fixing the Patent System - Tricky but possible....

        Re: Yeah... really? Give me some examples?

        Well, I think one area where they innovated was in touch interfaces, and in particular how multi-touch interfaces could work. This led to new ideas like bounceback and pinch to zoom. I have to admit that "tap to zoom" is in my view obvious, but the others are not.

        If they are obvious, how come nobody thought of them before? We've had scrolling lists since we've had GUIs, so that's since the 1970's or maybe even the 1960's. We've had zoom functions for decades. We've had multi-touch capable technology (not widely implemented but it did exist since 1982) for decades. We've had portable devices with touch interfaces for decades (even with a stylus on the original Palm Pilot in the mid 90's or even on older devices the bouncing would have been possible).

        It's only when a company invested in engineers and designers trying stuff out that they came up with new ideas - innovations - that really helped to make better (multi-)touch GUIs. And they were granted some patents on this. Sure - they got too many (that was one of my points, actually), but still much of this was really new and not obvious. If it hadn't been new, they wouldn't have got the patents. It can't have been very obviuous or it would have been implemented in the previous decades.

        By the way, I decided against the iPhone and bought a new Android phone a few days ago if it makes you feel any better :-)

        1. Pahhh
          Stop

          Re: Fixing the Patent System - Tricky but possible....

          Well pinch and zoom was on a Mistibishi device DiamondTouch as well as the concept in the film "Minority Report", all pre-dating the iTouch.

          Apple largely use other people's ideas and package them together in a fantastic way. I am sure somewhere there is some innovation but really what makes their product great is the execution, how well they have put all the ideas together. For instance Apple obsession in making a great interactive device ensured that there was a great refresh rate so that when you swiped it would keep up and feel super smooth. Thats good engineering and I applaud them for it. So much so that I bought lots of their devices.

          Apple = Great design + great engineering but there is a little innovation there.

          Take your modern Ferrari , I think you will find there is little innovation that makes a material difference to the car, but there is fantastic design and engineering.

          I think their devices are great and will keep buying them. Although the recent hardware on the Samsungs is now better than Apple's , I think the general experience sucks and I wont buy one.

          1. pwibble
            Gimp

            Re: Fixing the Patent System - Tricky but possible....

            Some interesting examples.

            I watched a demo video of the Mitsubishi product and it certainly did do some window resizing (but _not_ zooming) that had similarities to the iOS interface. The video may not have shown everything it could do and, let's be honest. not many people have seen the DiamondTouch in action. However, if there was prior art then that's exactly the kind of thing that would invalidate a patent. We can only assume that patent authorities / courts have so far not been sufficiently convinced that this does constitute prior art.

            Minority Report.. Hmmm, I'd have to carefully watch the film again to give you an opinion about this. I remember all kinds of hand movements caused GUIs to do stuff. Again presumably this didn't cut any ice with the patent authorities or courts so far, so there are presumably some significant differences. Be interesting to know what the exact arguments were.

            Let me put the case on "innovation" another way - would it be fair to say that the iPhone was a landmark device in portable device touch GUIs? I think it is fair to say that it is _the_ device that brought the multi-touch user interface to the mass market. Sure there are some predecessors that can be identified, but it clearly took considerable investment in R&D to create the iPhone. If we call that "innovation" or just "engineering" is something rather subjective in my view. I think the market for mbile devices was transformed in many ways by the introduction of the iPhone (multi-touch input, GUI, ecosystem, physical form factor and indeed "just" design).

            Is Apple a patent troll? Well, most definitions of the term consider a patent troll to be "a pejorative term used for a person or company who enforces patents against one or more alleged infringers in a manner considered aggressive or opportunistic with no intention to manufacture or market the patented invention." (Wikipedia)

            If we accept this definition, then Apple isn't a patent troll. They definitely do have an intention to manufacture and market their patented inventions.

            You might not like all the patents they hold (a question of how "original" they are), or the power that patents in general confer - neither do I, and that was one of the points I was trying to make. What I was trying to suggest was ways of changing the patent system that could shift the balance of power towards companies (like Apple) that are actually in the business of making usable products and not (only) in the business of litigation. I also want to reduce the power of patent holders in general - but not get rid of them entirely. That's the argument I was trying to put forward, anyway.

  42. Saul Dobney

    First thing is that patents are good in that inventors should be encouraged to invent. It would even be a good idea if copyright became more like patents (20 year limit for a start). The problem is the gaming of the system. Things are being patented without sufficient invention, and there is a confusion between things that should be copyright (rubber band display effect), versus patentable which should be physical in their nature.

    For instance, X on a website/fixed screen is 're-invented' to become X on a mobile device, or X over a network and then becomes 'patentable' again simply because the base form has changed. We can envisage X on a foldable/rollable screen-based device will be the next round of patents or X within a 3D display system.

    The point of a patent is that it's about invention of something new. These types of 'extension' is never and can never be an invention - a simple clarification of this point by the patent office would greatly reduce the scope for trolling.

  43. JP19

    How to fix it

    Patents should be filed with a claimed value. The value representing the cost/effort involved in the invention and that value open to challenge.

    The holder would be required to sell full and transferable rights to anyone paying the claimed value who would then also becomes a holder. Holders could resell rights or licence for whatever deals they can get.

    So rubber bandy menu things or whatever it was couldn't claim a value of more than a few man months of work which is the most anyone wanting to use them would have to pay.

  44. James 100

    Real problems, but not fatally flawed

    The underlying idea seems a good one: invent a new idea, get a monopoly on it for a while. The problem now is that "new idea" isn't being very well enforced, and "a while" is currently far too long for high-tech fields.

    Having someone more competent review applications might help - just run them past someone with a relevant degree, for starters. Shorten the time limit: 7 years might be more appropriate, still an eternity in computing terms but much better than 20. Perhaps different time limits for different fields: engines might not change so much, so a decade or longer for a new spark plug or crankshaft might still be reasonable, but silly for computing or biotech.

    The best for competition, though, might be mandatory licensing, as we have for design rights in the UK in some cases. Instead of "Samsung's handset uses this patented widget of Apple's, so it's banned", "Samsung are using this widget Apple patented, so must pay Apple $1 per handset using it" - as is already the case for 'standard essential' patents like those involved in GSM, 3g etc. The patent-holder still gets money from their invention, fulfilling the actual aim (granting them a monopoly on the invention was a way of getting them an income from it, not the only way to do so) without stifling competition on other areas.

  45. The BigYin

    Conlfating two issues

    1) Patents - good;

    2) Patent System - bad (certainly in the USA).

    Patents are a "Good Thing"(tm), people do need them. But when they are open to abuse through a pathetic system like the USPTO, it just devalues them. The same issue exists with copyright and the idiotic terms.

    This abuse results in a societal cost through innovation and derivative works at negates, or even outweighs, the benefits that patents and copyright brings. I am not anti-patent or anti-copyight. I am anti-abuse. Big difference.

  46. Mage Silver badge
    Headmaster

    Which is that the patent system gives us a huge social benefit.

    That I agree with. But that was obscured by the rest of the rambling. Not up to your usual quality of writing, which I think is good even when I don't agree with the conclusions.

    I believe in patents. But there needs to be tighter control on what gets a patent. Most should NOT be approved. This started in 19th Century USA and got worse. Totally frivolous claims that should be thrown out because of prior art or too broad.

    The system doesn't even really need changed. The problem is the people implementing it.

  47. The BigYin

    Bullshit

    "Standards arise when someone chooses not to assert their intellectual property rights, but much more frequently when parties mutually agree to honour them."

    MPG4, OOXML. Two patent infected "standards". I'm all for standards, the 'net would be nowhere without them, but to expect a standard to be adopted globally and for purposes unknown whilst infected with patents is....naive at best.

    That's not to say patents are bad - we're back to patent abuse. Again.

  48. Wang N Staines
    FAIL

    "Patent protection gives a very short period of economic exclusivity to exploit that method"

    Remind me again, how many years patents are valid for?

  49. Brangdon

    Suggestion: software patents should expire after 3 years

    Currently software patents last for 20 years. That's too long. If it were a much shorter term, they would do correspondingly less damage. If Apple had, say, a 3 year monopoly on scroll-bounce, that would be enough for them to sell a lot of phones, and afterwards we could all benefit.

    Note that patents are intended to encourage two things: that inventions are made, and that inventions are published. UI patents are special because they are inevitably published. Apple couldn't release the iPhone without letting everyone see scroll-bounce. (They don't need to show us their source code, because any competent programmer could implement it once given the idea.) Apple need to be rewarded for coming up with the idea, and for spending money refining it in UI labs, but they don't need to be rewarded for publishing because they were going to do that anyway.

    3 years may be too short. 5 years might be better, as companies sometimes develop ideas long before domestic hardware is capable of running them. However, that in itself is part of the problem. Once you have a touch-screen, a lot of possibilities open up. Whenever someone improves the hardware enough, a sort of gold-rush happens as companies patent the new possibilities. Arguably the new hardware should be patented, but not the stuff that follows, because anyone owning the hardware can see the possibilities. It only seemed novel before the hardware existed. So Moore's Law is part of the reason software patents should differ from hardware ones.

  50. Anonymous Coward
    Anonymous Coward

    Freetards don't get it

    The entitled generation is clueless to patents and copyrights. They falsely believe that they are entitled. The judicial system has shown them that they are wrong and clueless.

    1. Wang N Staines

      Re: Freetards don't get it

      Yeah, those twunts think that they are entitled to use all those FRAND patents for free!

      Riding on the back of others' R&D.

      1. Anonymous Coward
        Anonymous Coward

        Re: Freetards don't get it

        No, they don't think they are entitled to use them for free. Just to pay the same dollar amount as everyone else pays. Not have everyone else pay 2.4% of the cost of a $10 chip while they have to pay 2.4% of the cost of a $500 phone. That violates the "ND" non-discrimatory deal they signed up for when they became part of the standards process and submitted their patents for inclusion in the standard.

  51. someone up north

    the problem with Andrew Orlowski

    the problem with Andrew Orlowski's argument of love with patent is that

    he ignore the possibility of independent invention by other - this is NO copying by anyone !

    as they say " necessity is the mother of all inventions",

  52. Anonymous Coward
    Anonymous Coward

    The issue is not the theory but how patents work in practice and the chilling effect of granting obvious patents paticularily patents on exisiting technology which seem to make up the majority of patents I see. Patents allow small start up companies to raise finance and this is a good thing. They also allow large companies to prevent small competitors in markets which is probably a bad thing. The problem is the patenting of unoriginal and obvious ideas and the fact that patent litigiation is seen as a lottery with a significant chance of losing and high cost whatever the merits of the case.

    An example I was recently involved in was a US patent related to the invention of a new way of sensing a paticular physical parameter. There were many exisiting ways to sense it but this new method was cheaper. This was patented which is fair enough but then someone raised a patent on the use of th enew sensor type in all the common medical applications of the old sensor types. It was not too bad initially becaus ethey were not very good engineers and did not describe the best way of doing ot but then extended the patent application with all the ways that people did it that did make sense copied from exisiting devices. Where is the invention in any of this? The one novel thing is the use of the new sensor technology in old applications which is obvious. Annoyingly the company who own the patent have never developed any actual products. I was involved in a new medical device the development of which has not taken place because of this patent and know of several other similarily blocked by the sam epatent. It is completely worthless in terms of advancing the state of technology but is quiet effective in preventing development. Knowing this I do wonder if as it currently stands the patent system is a net benefit or a net cost to society.

  53. attoman

    Fixing the System

    The US Patent system today is heavily tilted to the benefit of large corporations, the USPTO is actually run by IBM's chief patent attorney!

    All applicants with fewer then 10 people should pay 1/10th the rate of small entities. These will called Inventors

    All Inventors with a history of successful and socially useful "innovations" (meaning that their inventions participated in powering successful products) will have their unsold inventions extended by 10 years and will be heralded as Recognized American Inventors by their names in titanium on the granite walkway into the USPTO in Alexandria VA.

    All suits involving Inventors will have the losing party paying the winner's legal costs and fees. Further any losing party with a history of similar loses will be assessed additional sanctions of 10 times the costs and fees of BOTH parties paid to the winner. This change would both make believers of bullies like Apple, and make the temptation for misbehaving Inventors come at a very high risk.

  54. Scott 19

    Question

    So how many pantents do you hold Andrew? because your starting to sound like Tim Yeo.

  55. Anonymous Coward
    Anonymous Coward

    Kim Jong-il

    Reductio ad dictatura just so you could avoid reaching the Godwin point in the headline, what a smart move!

  56. Doc Spock

    Patent Scrutiny

    It seems to me that one of the biggest problems that people perceive to exist in the patent system is that too many patents are accepted without sufficient scrutiny. This is particularly true of the US patent system, where USPTO funding is linked to the number of patents accepted.

    If we accept that the patent acceptance process needs to become more strict, the obvious question then is who should be responsible for the additional scrutiny that such a change would require? Patent officers are over-worked, at least in the eyes of those people who proclaim that the system is broken, so it cannot be those individuals.

    My suggestion: any and all competitors of the company which is filing the patent.

    I believe that the benefit of this would be three-fold:

    1. The competitors have a vested interest in finding as much prior-art as is possible to invalidate the patent application. I can think of no other entity which would put as much effort, or be in as good a position, to provide evidence that the patent should not be granted.

    2. If the patent were to be granted, court cases involving patents would be much simpler as the claimant would have had ample opportunity in the past to challenge the patent claim and therefore that aspect of the cases would be greatly reduced. Crucially though, where appropriate, any claimant should be able to show that they had insufficient ability or knowledge to challenge the patent when it was first submitted.

    3. Competitors would learn of the patent's claims sooner (i.e., at filing time, rather than at granting time), thereby making the IP available earlier and thus increasing the potential for future innovation.

    Now, there are almost certainly holes in my suggestion, but I would welcome any constructive feedback.

  57. This post has been deleted by its author

  58. Anonymous Coward
    Anonymous Coward

    Patents

    If IP protection is so necessary, so absolutely needed for innovation - how does the food industry even manage to survive, with their unpatentable, uncopyrightable recipes?

    Andrew makes very good, contrarian points most of the time. I'm just not convinced by his point that all innovation crucially depends on a patent system, either the Usanian one, one of the European ones, broken or unbroken.

    1. Pahhh

      Re: Patents

      Interesting point....but with issues.

      There are effectively four types of intellectual property, Patents, Copyright, Trademarks and Trade Secrets.

      Trade Secrets arent legally unforcable. It just says they we do things in a certain way and we not going to tell you how. Case example the Coke-Cola or KFC chicken formula.

      Trade Secrets are fine when its difficult to copy a design or reverse engineer the product. With food the process and ingredient (and quantities) determine the end output and its obviously very difficult / impossible to make identical copies.

      You could however reverse engineer software and hence the process.

      So there is logic to the usefulness of software patents. The problem is the review process does a piss poor job of deciding what is an invention, loosely defined as "non-obvious to someone skill in the art". Thats problem 1. Problem 2, is it not affordable small entities.

  59. Mikel
    Stop

    Patents prevent progress of science and the useful arts

    That's what they do, that's what they're for. They're bad and should be abolished.

  60. Anonymous Coward
    Anonymous Coward

    Nothing wrong with the system

    It's the criminals that need "fixing" via a good long prison sentence and serious fine.

    To answer the question about the food industry, they actually keep food and beverage recipes a secret or fortunes would be lost. You can't publish software, music, produce medical drugs, develop new tech, etc. and protected it from reverse engineering. That's why patents and copyrights are appropriate and necessary.

  61. Keith 21
    Facepalm

    Didn't you get the memo, Andrew?

    Of course you got a lot of flak.

    This is The Register. The Hive Mind will not tolerate people saying anything good about patents. Nor copyright. Nor Apple, come to that.

    You clearly need to be ReEducated, Andrew!

  62. Danny 5
    WTF?

    hmmmm

    not sure how to comment on this one without sounding biased, as all know how much i hate apple.

    I'm leaning towards Richard's comments. Apple is more then happy to use other's stuff, but doesn't return the favor. Apple was the biggest whiner about how they where treated unfairly for many many years, but at the first oppertunity they get to show all those "unfair" parties how it should be done, they've turned into the worst patent enforcer ever. If any company could ever be accused of fighting unfairly, it's bloody Apple.

    And how the hell has Samsung become the bad guy here? Apple took the fight to Samsung and not the other way around.

    If you want to make a case about patents being valid and usefull in cases, i agree with you, but with Apple that's simply not the case. Patents should be used to let the creator get paid for his/her work, not for obvious trolls like Apple to try and bully away the competition. If you make a case for Apple's way of maintaining patents, then with all do respect, you are an idiot.

  63. Walter McCann

    Prove the patent deserves patent protection in the first place

    Why not solve this once and for all:

    If a company/person brings a patent case against another, let the first step be to have a jury examine the patent to make sure it is a legitimate bona fide patent. Evidence could be presented at this point by "others" who believe that they can prove that the patent should never have been given (and the holder proves why it should have been).

    If the case gets past this hurdle then continue on and the patent holder can go through the normal process of proving that the opposing party actually infringed the now "legitimised" patent.

    This would reduce the number of patent cases being taken as the person suing would have to bear the cost/time of proving their patent was legitimate, and would free up the courts for "true" patent infringement cases.

    The patent system is broken, we have a few (unelected) bureaucrats who have little clue deciding whether something is a new idea or not - this is ridiculous (remember Amazon's one click purchase patent - what a joke).

    Only when the integrity of the patent system is restored can true innovation and progress continue, until that time it is just open day for lawyers.

    W.

    1. Pahhh

      Re: Prove the patent deserves patent protection in the first place

      That actually is a great idea. Unfortunantly at the moment the honus is the defendent to prove a) he isnt infriging b) its a valid patent. a) is generally straight forward. b) however is a nightmare as the legal weight is that the patent is valid.

  64. Anonymous Coward
    Anonymous Coward

    Delusional Freetards

    Since 98% of society understand the need for patents and copyrights, I'd say the 2% in denial need to educate themselves instead of attacking a useful system that protects people who invest much time and effort in addition to money in developing unique art, products or technology.

  65. Anonymous Coward
    Anonymous Coward

    'Trivial and obvious'

    The Apple patents in question, e.g. tap-to-zoom, are both trivial and obvious, while a patentable invention must be neither. This is sadly typical. Companies use dodgy patents to contrive artificial brand distinctions.

    Perhaps the patent system could be saved, if all these lame "how you use it" patents were summarily invalidated, leaving only a few "ingenious mechanism" patents. But our Congress is incapable of fixing laws. So I'm in the anti-patent camp. I'm tired of living in a litigious society. I am an inventor at heart... but I decided not to waste my life inventing products that'll embroil me in legal proceedings and ultimately be shot down by bogus patents.

    Could innovators compete without patents? Sure - on implementation, quality, efficiency, business practices, marketing, etc. Brilliant ideas are a TINY TINY factor in the success of a product.

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