How to kill trolls and influence Apple people: A patent solution

Having decided that the patent problem is an attempt to solve a public goods problem, as we did in part 1, let's have a look at the specific ways that we put our oar into those perfect and competitive free markets. It's worth just noting that patents and copyright are not, absolutely not, the product of some fevered free …

[ratfox]

Change the incentives of the patent office

Currently, the USPTO has all the incentives to accept just about anything as a patent. More patents accepted is seen as more productive; I believe applicants even have to pay more, once a patent is accepted, to actually get the patent, than if the patent is rejected.

Instead, ask full price to apply for a patent, and give back a small percentage if the patent is accepted. The incentive to apply for real patents instead of bullshit is not very important; the important part is that now the USPTO gets more money for rejecting a patent than for accepting it.

[Steve Todd]

Re: Change the incentives of the patent office

Wrong motive. You want the patent office to be penalised for patents that are challenged in the courts and invalidated. They should have no bias either way to granting or rejecting patents, but if they get it wrong ...

[auburnman]

Re: Change the incentives of the patent office

That relies on the patent actually being tested in court, which doesn't address the issue with the legalised extortion scamsters who will just drop their suit instead of going to court.

I think the patent office shouldn't be biased, but should act a little like a biased entity and actively trying to invalidate applications by searching for prior art. That way they could clear their backlog by punting patents on existing things, and the patents that did get through would have already stood up to rigorous testing. "Slide to Lock" wouldn't have had a chance.

[Naughtyhorse]

Re: actively trying to invalidate applications by searching for prior art.

AKA; doing their fucking job!

[Gary Bickford]

Re: actively trying to invalidate applications by searching for prior art.

It's not supposed to be up to the patent office, at least not entirely. Under current US law, the applicant is supposedly required to present all prior art as part of the application. However two things mitigate against that. First, it requires specialized knowledge and is difficult, time consuming, and expensive to do that. And second, if you do the research and don't happen to find the one patent that can be construed as applying, your liability goes up because (it can be argued) you purposely did not cite the prior art. Worse, you may find that patent and cite it, but then you are pretty much admitting that you are liable for royalties. This is a catch-22. So many institutions tell employees _not_ to look for prior art. So the application may have a few barely-related citations - you have to have _something_ - often expired patents, but basically pretends ignorance, to avoid licensing issues to the prior art holder.

The other problem is that the USPTO by itself can never have a sufficiently conversant staff in every discipline. Patents in high tech fields are often so specialized that only a half dozen people in the world could probably know whether the innovation is unique, etc. IIRC recently the USPTO began to set up a volunteer peer review system. There are many potential issues with that (similar to those in academic peer review), but I think that is a good potential solution to all of the above.

[Marshalltown]

Re: actively trying to invalidate applications by searching for prior art.

The true problem with "prior art" is that it often is not patented. All too often the "inventor" is a mediocrity who has *had an idea* and the experience is so overwhelming, he or she patents the idea simply because they have discovered their own personal brilliance. Corporations treated as people are even worse since their "creativity" is entirely parasitic - yeah maybe they did pay some shmuck to write a program or "design" a prism with rounded corners, but the "corporation," per se, never produced or invented anything.

[gpwhite]

Re: actively trying to invalidate applications by searching for prior art.

There is no requirement to search or to "present all prior art". There is only a requirement to present what you know. While some applicants opt for not searching, to have a strong patent one would like everything relevant on the table. If something known at examination time is deemed too close by the examiner the applicant has a chance to argue or to narrow. If it comes up later, during a court case, there is no longer a chance to work around the reference and the patent gets invalidated.

Holding something back that the applicant or their attorneys had and thought was relevant could get the attorney disqualified by the USTO and can get the patent torn up. Not recommended.

[gpwhite]

Re: Change the incentives of the patent office

Of course, the USPTO and other patent offices do search for prior art and then issue rejections based on what they find. They can't say "it seems obvious to me" but need to find actual, citable material.

[Yet Another Anonymous coward]

Re: Change the incentives of the patent office

>Of course, the USPTO and other patent offices do search for prior art

It recently changed but the USPTO used to ONLY count prior art in filled US patents - although patents could be overturned in court for any prior art.

There was a notorious case of a US drug company patenting tumeric as an antisceptic. It has been known for 1000s of years and written down in 2500 year old Hindu works - but the Mahabarat's authors forgot to file with USPTO.

[Number6]

Re: Change the incentives of the patent office

Part of the problem here is that "obvious" is very subjective. I have before now, been working on a project, an issue comes up and the immediate thought is "just do X". Then you find that X is patented and one has to wonder about the "non-obvious" requirement for a patent. Admittedly the novel and non-obvious aspect might be in asking the original question, but if something comes up and a large number of people skilled in the art propose the same solution then it's not non-obvious, and probably not novel either.

[Don Dumb]

Re: Change the incentives of the patent office

@Steve Todd - Still the wrong motive, just in the opposite direction. Under your principle, the patent office would be very reluctant to issue *any* patents for fear they may be invalidated, essentially no patents. As you say they should have 'no bias either way' but your system pushes them towards rejecting everything.

My method for improving the USPTO would be to have an ombudsman or USTPO oversight/auditing body (not sure of the US equivalent terms). Think like OFSTED for schools or the NAO for public departments in the UK (not perfect I concede). Having a body that periodically reviews patent decisions (i.e. marking the work of the USPTO) and reporting on good/bad decisions would then give weight to any legal case involving that patent. Compaines litigating would have more confidence of their claim or defence if the patent had already been independantly reviewed, thereby limiting speculative sueballs or compaines trying to defend poor patents through attrition by outspending the party suing them. I recognise that this is more powerful under a 'loser pays' system however.

Furthermore, the oversight body could act as an avenue for appeals - either appeals against rejections by the submitter or against approvals by third parties (other possible owners). Again, if the patent has been reviewed, and subjected to any appeals *early* it prevents many legal arguments later on about the validity and/or ownership of a patent.

[Steve Todd]

Re: Change the incentives of the patent office

Much easier, let the judge decide when he invalidates a patent the amount of fault by the patents office. The scale could be anything between zero for something overruled for an un foreseeable reason, through to a percentage of the legal costs for something with blatant prior art.

The patent office gets an incentive to do a good job. You ensure that they have to give well reasoned arguments for a rejection and include an appeals process to prevent them from rejecting everything.

[Tom 13]

@ Don Dumb

While an improvement, even those don't work. I've only seen one example of the government getting this sort of thing correct, and it doesn't translate well to patents or copyrights.

In the US, for agricultural products testing (fertilizers, pesticides etc.) the government authorizes groups to set standards by which products are tested and independent certified labs perform the tests. Both the standards setting groups and the labs run fair tests because there are competing parties who would stop using the services if the tests became too biased either way. But there typically aren't two competing parties for patent applications.

Although maybe there is potential in the government authorizing private entities to issue patents and copyrights without granting them legal immunity for damages if they improperly issue a patent. Government sets out the rules just like they do now, and courts try them. But either party could include the issuing agency in the lawsuit, so there would be incentive for them to get it right. Or maybe they'd be just as prone to side with the PAE to protect themselves.

[gpwhite]

Re: Change the incentives of the patent office

Under the relatively new AIA patent laws there are more mechanisms for 3rd parties to request the USPTO perform a reexamination. These proceedings are much less expensive than court cases but are still many thousands of dollars. The USPTO does have the ability to decide, on their own, to reexamine an issued patent. At one time in a previous administration there was a secretive Quality Control Dept. that has since been abolished. The problem they had was they randomly looked over the shoulder of an examiner who had allowed a case and told them to change it to a rejection. (never the other way around) Maybe that would have been OK but the inventor could not interact with the QA people to try to understand their thinking or change their thinking and the examiner - the only person they can talk to - would say "it is out of my hands".

[tom dial]

Re: Change the incentives of the patent office

@Don Dumb, 12:19:

The NSA has an extensive internal audit and oversight operation, and a special oversight court. It is clear that many people think that has been pretty much ineffective. Moreover, the Court of Appeals for the Federal Circuit has appellate jurisdiction over most patent issues. In this case, it is reasonable to argue that the oversight court has brought on a major part of the problem of allowing patents on "inventions" that a great many people think ought never to have been granted.

In short, we've tried these things before and found the outcome far less than satisfactory.

[Yet Another Anonymous coward]

Re: Change the incentives of the patent office

It works with other similar departments.

The FAA doesn't refuse to ever issue an airworthiness certificate in case there is a crash, the FDA doesn't block every new drug. Both these operate fairly and effectively (at least compared to the USPTO)

[Dave 126]

Re: Change the incentives of the patent office

>Instead, ask full price to apply for a patent, and give back a small percentage if the patent is accepted.

Perhaps students, or individual innovators ("Garden Shed"), can get a substantial discount? If BigCompany has spent hundreds of man hours developing an innovation, then they won't be put off by a patent application fee of a few hundred or thousand dollars. However, to a student this amount of money is prohibitively expensive.

[Flocke Kroes]

No point in student discounts

Defending a patent costs several hundred thousand. If you do not have that, the trolls won't offer you more than a pint for a patent. A MegaCorp might offer you 99% of the litigation revenue, and then use the patent exclusively for cross-licensing so you get 99% of nothing.

Don Dumb: I have good news for you - there are already plans to create a specialist patent court to rule on the validity of patents and any other type of patent disputes. This will take ordinary judges and juries out of the process and all decisions will be made by patent professionals. Perhaps the European Patent office did not advocate these plans purely out of self-interest. Personally, I think you would stand a better chance in getting justice with trial by ordeal.

[gpwhite]

Re: Change the incentives of the patent office

If you are an individual or a company of less that 500 people you now get 50% off most USPTO fees. Under the newish AIA law if you have an annual income less than about US$150,000 you get 75% off most USPTO fees for the first four full U.S. patent applications.

[The First Dave]

Re: Change the incentives of the patent office

That would appear to be the fundamental problem with patents at the moment - there are two equally worthy groups of people, one with large wallets and one with almost no money. These two groups are fairly equally split between being (potential) patent owners and (potential) patent infringers, so attempts to use financial means to sort it out will never work.

My particular pet peeve though, is that in the old days, filing a patent actually explained to other people how you invention worked, so that when the patent expired, then the state-of-the-art in that particular field automatically took a step forward. Modern patents don't seem to fulfill this part of the bargain - they define what other people are not allowed to do, but when the patent expires, it is useless to _everyone_.

[oolor]

Another way, in addition

Anyone that has knowledge of prior art can help defeat patents:

http://patents.stackexchange.com/

an example in action:

http://patents.stackexchange.com/questions/3566/scaling-based-on-pixel-density-microsoft-patent-application-prior-art-requ/3569#3569

There are a lot of people around here that could probably help.

[Kevin Davidson]

Proof by assertion

There are some assumptions here that need some justification. For example "If we have no protection of originality, then we get too little innovation." If that's the case, please explain the success of the fashion industry and the ubiquity of celebrity chefs - fashion and recipes are two things that have no "intellectual property" rights protecting them, yet they continue to support huge industries. There's no sign that people have stopped designing new clothes and new ways of decorating our bodies (there never has - do we still wear animal skins?) or thinking up new ways of combining foods.

And what about the near certainty that several people will have a similar idea at the same time (because they're all building on others ideas at the same time - nobody lives in a bubble). Someone gets to "own" an idea that someone else laboured over independently. That's a sensible system that rewards inventors?

The idea that people will stop having creative ideas because they can't stop someone else using them for 15 years (or for 70 years after they have died) is laughably untrue.

All patents have ever done is slow innovation down and hold us back. Or generate money for patent lawyers.

[Steve Todd]

Re: Proof by assertion

Firstly they are swiftly changing markets, do you care if last seasons designs are copied? Secondly the cost of entry is low. You don't need a team of designers working for years to invent a new frock.

There's plenty of historical precedent as to what happens without a patents system. The US got their start into the industrial revolution by wholesale stealing of European patents, but they still saw fit to create their own patent system.

[Roo]

Re: Proof by assertion

"Firstly they are swiftly changing markets, do you care if last seasons designs are copied?"

Quite clearly the vendors do care because they go to significant lengths see that people producing and selling counterfeits are prosecuted (with varying degrees of success).

"Secondly the cost of entry is low. You don't need a team of designers working for years to invent a new frock."

A lot of people flog widgets copied verbatim from component vendor app notes, they don't need teams of designers working for years either.

"There's plenty of historical precedent as to what happens without a patents system. The US got their start into the industrial revolution by wholesale stealing of European patents, but they still saw fit to create their own patent system"

The lesson we could take away from that example is that ignoring/not having patents promotes extremely rapid growth and massive trade surplus. China's recent history appears to support that hypothesis as well.

[Steve Todd]

Re: Proof by assertion

You only get rapid growth if you're playing catchup with the rest of the world. That's the important point. Once you've caught up there's no incentive to do your own R&D, and a lot of incentive for the rest of the world not to trade with you. The Chinese are strengthening their own intellectual property laws in case you haven't noticed.

[Roo]

Re: Proof by assertion

"Once you've caught up there's no incentive to do your own R&D"

Firstly : The goal posts are moving all the time, once you've "caught up" you still need to expend effort to maintain your relative position.

Secondly : If Patents exist you can hold up innovation by simply refusing to license your IP to other people, then you don't need to do any R&D at all. Great for you, sucks for everyone else because prices are maintained at an artificially high level and puts a brake on productivity improvements as well.

Thirdly : Ultimately the market will pay what it can bear, and that figure doesn't change just because some numb nuts has cornered the market. If you happen to be the first to market the chances are you will be profit more highly from it, so the trick is to innovate and bring products to market ASAP.

"The Chinese are strengthening their own intellectual property laws in case you haven't noticed."

If you believe the press at large they are using them to protect their local vendors. I don't see this as a good thing, I see it as a method of obstructing free trade and holding up innovation.

[deadlockvictim]

Re: Proof by assertion

Steve Todd» wholesale stealing of European patents

Wholesale copying of European patents, I think you mean. Theft involves the removal of one thing from someone and depriving them of it. The Europeans were not deprived of their patents.

[dfgraham]

Re: Proof by assertion

The problem with your argument is that innovation then becomes a trade secret. If you have a patent out in the public domain innovators can study it, and improve on it now. That is the whole point of patents. Society enforces your rights to an inventions for a time, and in exchange you explain how your invention works to society.

[JEDIDIAH]

Re: Proof by assertion

> The problem with your argument is that innovation then becomes a trade secret.

...which is really no different then the situation we already have.

Patent applications are CRAP. They SUCK as documentation. They're worthless for their stated purpose of disclosing trade secrets. Beyond that, something being a "trade secret" is more advantageous because it allows all of the trivial crap that can be recreated by undergraduates to be safely recreated by other companies.

On top of all of that we have the treble damages rule which ensures that NO ONE ever looks at the patent database anyways. They do this to avoid further liability.

The "point of patents" has been totally subverted.

[Tim Worstal]

Re: Proof by assertion

Worth noting that fashion is covered by trademark (you can't go around passing stuff off....very like Apple's design patents) and recipes are covered by copyright. "Lemon chicken" ain't copyright but the specific recipe, the words used to explain it, are.

[T. F. M. Reader]

Re: Proof by assertion

It is also worth stressing what can and cannot be copyrighted (as opposed to patented) in fashion or cooking, etc. It is touched upon in the article in relation to copyrighting code (copyrights don't cover *ideas*, just specific embodiments), but not in much detail. It is, IMHO, *very* different from Apple's design patents. Given our experience in our industry we tend to strongly associate copyrights and patents with royalties owed, and it is not always the case in other fields.

AFAIK, recipes themselves (as lists of ingredients and instructions) are not copyrightable. They are treated as "expression of facts". Nor is cooking considered innovation. Literary works and art are protected though. Thus, a particular literary form used to describe a recipe, an accompanying picture, or a compilation such as a cookbook are copyrightable. In other words, anyone can publish or cook a dish identical to that offered by Paul Bocuse (and advertise it as such, typically using terms such as "adapted from", "based on", etc.), with no royalties to be paid, but copying a cookbook of his would be an infringement. If you lift a colourful set of instructions verbatim and/or a picture from somewhere you may find yourself in hot water or eaten alive. Passing a barely modified recipe by someone else as your own is, at the very least, unethical.

As another example, jewellery can be copyrighted, but AFAIK it basically covers knocking off exact copies and selling them. You cannot copyright or patent "a brooch with a bird" and demand royalties, even if you are the first to come up with the idea. My understanding is that in the world of fashion and accessories elements of your design (think of rounded corners as an equivalent of a particular sleeve or collar or hem in this regard) cannot be copyrighted in general.

Wouldn't it help to consider Apple products fashion accessories?

Disclaimer: may vary with jurisdiction, and IANAL.

[Tom 13]

Re: recipes themselves ... are not copyrightable

I've got shelves of books of copyrighted recipes at home. There is no descriptive or artistic expression in them beyond the list of ingredients and the order in which to mix them and prepare them. Recipes are copyrightable. But rather like tape traders back in the day, most personal infringement isn't caught and prosecuted.

[T. F. M. Reader]

Re: recipes themselves ... are not copyrightable

@Tom 13: it is the books that are copyrighted, not the recipes in them.

From http://www.copyright.gov/fls/fl122.html:

"Copyright law does not protect recipes that are mere listings of ingredients. Nor does it protect other mere listings of ingredients such as those found in formulas, compounds, or prescriptions. Copyright protection may, however, extend to substantial literary expression—a description, explanation, or illustration, for example—that accompanies a recipe or formula or to a combination of recipes, as in a cookbook."

As long as you take care to modify the "substantial literary expression <...> that accompanies a recipe" you are fine. (But IANAL.)

[J.G.Harston]

Re: Proof by assertion

Partial agreement here. Just because nobody is paying me to think of things, I can't stop my brain doing that thinking of things. The only thing that happens without a patent system is that commercially valuable innovations are kept secret. The cruicial keystone of the patent system is that you are *disclosing* the innovation in return for term-limited rights to monopolise it.

[Roo]

Re: Proof by assertion

"The only thing that happens without a patent system is that commercially valuable innovations are kept secret."

Trade secrets (aka 'valuable innovations') are still kept despite the patent system existing. If the patent system didn't exist, reverse engineering has proven to be a useful counterbalance to monopolies. Compaq ripping off IBM's PC BIOS is a classic example.

The nice thing about reverse engineering as the counterbalance is that the effort required to reverse engineer something tends to be proportional to the effort required to develop it. By contrast the effort to defend/attack a patent bears little relation to the effort involved in developing the IP it is more dependent on how knows who and how deep their pockets are.

At present we have a scenario where engineers are fighting lawyers in the field of law - a scenario where they will almost always lose and end up a lot poorer. If patents were binned we would have engineers out-innovating engineers in a 'free' market which strikes me as a win-win for IP developers AND consumers.

[strum]

Re: Proof by assertion

>commercially valuable innovations are kept secret

But, if they aren't realised (sold publicly), they aren't commercially valuable.

There is some sense in a very short protection - allowing an idea to be realised, tested & marketed by a small company, before a large comapny can copy it - but not much justification for a lengthy ban on copying.

[Yet Another Anonymous coward]

Re: Proof by assertion

>commercially valuable innovations are kept secret

But, if they aren't realised (sold publicly), they aren't commercially valuable.

Process innovations are kept secret. - a 1% improvement in wafer defects in Intel's fab is very definitely valuable.

[P. Lee]

Re: Proof by assertion

>he cruicial keystone of the patent system is that you are *disclosing* the innovation in return for term-limited rights to monopolise it.

The point with tech patents being that they are so strong/long/protected by threat of suit, that they may as well be secret - there's no benefit to the public so why bother granting the property right? Throw them in a PD bucket and let manufacturing finesse sort them out.

Worse, many of the inventions by legitimate companies are legal fictions designed purely to enable the use of legal costs to discourage competition.

That's before you even get to the trolls.

[WatAWorld]

Re: Proof by assertion

Celebrity chefs, fashion designers, are artists sell their names/labels/signatures more than their products, so what they produce is not a 'public good'.

You go to a celebrity chef's restaurant, you think that's him in the kitchen that night? No, but by going there you are showing your friends your affiliation with that chef.

Same with designer labels on stuff (including much Nike and Apple stuff). Knock-offs, even of superior quality to the original, cannot be sold for the same high prices.

And consider what happens to the price of a paint if its attribution changes from a middling artist to a great master -- same painting, same artistic and aesthetic value, but suddenly goes from being worth $20,000 to $20 million.

[Artifixprime]

Re: Proof by assertion

I'm going attempt to draw on my whole 6 months of experience as a trainee patent attorney (*years* ago, I might add) here...

The difference with fashion and cooking is that there may not be a new "thing" invented that can be patentable. E.g. if you come up with a new dress that adds say, a frill here and there, this might best be described as a "design" change rather than an invention as all of the elements were know before, but have now been arranged differently.

However, if, in the production of this dress there was a new type of stitch used that was as strong as the usual one but used less thread, then this would be inventive and could be patented.

From what I remember, registering and attempting to protect a design is very weak as you can only register your specific design - if you design a cup, then this is your design. If someone then comes along and adds a handle, then this is a new design.

[dssf]

Re: Proof by assertion

What about a path to improvements upon inventions?

If I create a widget that IS novel, non-obvioius, and sells to some extent, then good on me.

If someone comes along, and senses that I've been lazy and not diligently keeping the product in a state of improvement and up-take by the consumer base I've earned, and then that new party actually creates a stellarly-better derivative, and it outsells mine because of laziness on my part, then GOOD ON the UPSTART.

Isn't competition supposed to reign? In boxing, then winner is the one standing, not the one down for the count. But, if the one standing has razors or metal in the gloves, then the one wrongfully scratched up should have significant compensation REwarded, and the wrongdoer some punishment AWardded.

Still, the first-to-file and the first-to-invent systems BOTH are flawed. What should matter most is the product that sells better due to merits, not superior advertising more than product quality, and if necessary, experts and non-experts put under blind testing if the occasion arises to duke things out in a court battle.

First to file screws those who have no resources to even file for a new or a modified, legitimately-royalties-avoiding derivative or variation. First to invent screws those who truly have valid, worthwhile improvements to take to market. Ingenuity should, not king-of-the-laziness-hill, should have priority. The ingenuity that injects improvements and freshness should have room to work, without fear of being reamed by despicable PAEs. Punishment for a discovered PAE should be the carpet gets pulled from under the ENTIRE PORTFOLIO and anything tenuously connected TO it. And, when the USPTO *enables* PAES, the USPTO needs to be put through the meat grinder, too. Or, at least the involved agents. Otherwise, we're GOING to close in on that evil nexus of small people keeping mum, and big PAEs virtually owning the minds of anyone with an idea.

[gpwhite]

Re: Proof by assertion

What this misses is that the inventor with the earth shattering idea may not be in the position to manufacture and market the advance. When you think of a better automobile engine it may the only way for it to get to the world is for you to cut some deal with a major auto manufacture. So you go to them and tell them all about it. They say thanks and make it with no $ going to the inventor. "Good on them"? Do away with patents and the innovative will still win out assumes that the people with the great idea also have the capital, the business background and market conditions to jump into whatever industry the invention falls into. If the response is a good enough idea can attract the capital, etc. how does the inventor safely expose, explain and prove the idea to those with the capital absent patent protection?

[Roo]

Re: Proof by assertion

"What this misses is that the inventor with the earth shattering idea may not be in the position to manufacture and market the advance."

True. However, if they are unwilling/unable to develop manufacturing & marketing 'in-house' they could sell their expertise to manufacturers rather than their idea. Sure it might not be as easy as chillaxing while waiting for a royalty cheque to land on the doormat - but I think it would be more productive for society at large.

Also keep in mind that inventors do get shafted despite holding valid patents, simply because they can't afford to defend them or they are unable to. The reg reported a case a while back concerning a submarine electrical connector being ripped off by a defence contractor - the case was thrown out of court on the grounds that the patent was somehow essential to the defence of the realm.

I once lived next door to a guy who's patent *applications* fell into the national interest category. The last I heard was that the patents applications were locked up in a safe somewhere with no hope of them being granted and no hope of being able to monetize them (the defence contractors who could benefit from them wouldn't have to pay him a cent to see the applications and use them in any case).

Patents are a nice idea, but the fact is they are intended to eliminate competition, and the burden of operating a Patent system increases geometrically year by year due to it's very nature of cataloguing everything that has been patented and having to cross check everything you do against it in order to avoid infringing.

Patents are unsustainable by design regardless of where you stand in the IP debate, and in my view they offer little to no measurable benefit to society as a whole.

[Tom 13]

Re: Proof by assertion

Actually, both chefs and designers have a fair bit of protection for stealing ideas, at least in the relevant period of time. In the US both the Secret Service and the IRS are likely to get involved if you sell knockoffs from a major designer with a company and logo. Same thing for chefs and their recipes.

[Neil Barnes]

Henry The Sixth, Part 2 Act 4, scene 2, 71–78

Yes, yes, I know.

But the function of a lawyer appears to have changed over time...

[Natalie Gritpants]

Loser pays

Is probably the change that would solve the most bad things but how likely is it that the US legal system will change?

[WatAWorld]

Re: Loser pays

US patent law changed in 2011 and again in 2013.

I don't see any reason to expect it to not change again soon, the only question is what will the changes be?

Will the changes be designed to protect lawyers, big business, small business, academics, trolls, US business, foreign business, or what? I suppose that depends on who lobbies most effectively.

[Yet Another Anonymous coward]

Re: Loser pays

Two problems with loser pays.

Small Patent Trolls can simply spin off a no-asset shell company for each lawsuit to own the patent and be bankrupt if they lose.

Massive Patent Trolls (Apple,IBM,MSFT) can simply increase their own legal costs artificially to the point where you (or your shareholders/investors) can't risk losing and so have to settle.

[Sandpit]

You're the loser, you can pay...

This only works if there is someone slightly higher than a complete moron making the decision as to who is right. Current state of patent law indicates that no such higher life form exists in the American patent law courts.

i.e. you have right on your side but some idiot decides you lose and that you really can patent a rectangle with rounded corners

[Anonymous Coward]

Can of worms

"we'd all like a cure for HIV/Aids in order to bring back the halcyon swinging days of the '70s for example"

and child abuse, sexual abuse of women in the women in the workplace...etc were deemed acceptable behaviour.

In the early eighties when my wife (then my girlfriend) worked for a boss who she kept a bay with a fork and a metal ruler, he had molested all his previous PAs and she made sure that she wasn't the next!

The swinging days had many predators and many more victims :(

I used to think the 1960's and 70's were a golden period, however we are now finding out the dark side of this period where abuse was openly committed and blind eye was turned.

Being the father of three girls I would rather they grew up in a situation where they safe and not taken advantage of.

[WatAWorld]

Re: Can of worms

My dad died after being hit by a car.

You don't see me posting that cars should be banned.

[Pascal Monett]

BAN CARS !

Except mine, of course.

[Anonymous Coward]

Re: Can of worms

Jake is that you ? If not perhaps you should file a copyright claim because whomever this is, is stealing your schtick.

[Flocke Kroes]

Tabarrok's curve, first mover and the elephant

If we pretend the curve is accurate, deleting the entire patent system keeps innovation at the same rate, but has a bunch of other advantages: the courts are not backlogged with patents cases and all the patent examiners and patents lawyers are free to to something constructive instead.

In the real world, being first to market is an advantage. If your first generation product is copied, by the time the copy reaches the market your second generation product is ready to protect your market share. If on the other hand you invest in patents instead of a second generation product, delays and legal fees will bankrupt you before you get a penny from the copycats.

Finally, the idea of the patent system was that in return for getting a monopoly, you published how your invention works. There is so much dross that an inventor is unlikely to find a relevant patent. There is no chance he will understand it because it is written in patent language, and if he gets it translated the chances are he will find the invention is not adequately described anyway. Inventors do not read patents unless they are being sued - partly for the reasons just given, but also because reading patents makes inventors liable for triple damages.

I am all for using existing laws for reducing the patent problem prior to abolishment. IANAL, but I suspect demanding licensing fees for non-infringing products is fraud, and asking for settlements scaled to the cost of defending against nuisance litigation is racketeering.

[WatAWorld]

Re: Tabarrok's curve, first mover and the elephant

First to market is at an advantage?

That ignores global markets and the inability of any regular sized company or innovator to release even a modest product world-wide all at once.

For less modest products production is to expensive for many innovators. Consider ARM, the CPU architecture designer, they could not exist without patents.

Eliminating the patent system completely would aid only mega business.

The patent system (especially in the US) needs overhaul, but not elimination.

[Pascal Monett]

Re: "Eliminating the patent system completely would aid only mega business"

Find me one thing that mega-business cannot find a way to make its bitch.

[Flocke Kroes]

@WatAWorld

You are demonstrably wrong about global markets. If the Rasberry Pi Foundation had wasted money on patents, and MegaCorp had copied the Pi, the foundation would have nothing but legal bills while MegaCorp would have product revenue and could cause delays and appeals for years. Instead, the foundation did launch a modest product world-wide all at once and have sold over two million.

ARM would do fine without patents. Their designs are protected by copyrights. If the patent system disappeared, Apple and Samsung could make ARM compatible CPU's by recreating all the verilog, building a batch of CPU's, finding the bugs and repeating until they either get it right, or stop throwing money down the drain and license ARM's tested and working design.

BTW: Try downloading ARM's (or Intel's) patents and putting them into a verilog simulator. The result will be a big list of errors, not an emulated CPU. The patents do not disclose anything of value.

[strum]

Re: Tabarrok's curve, first mover and the elephant

>In the real world, being first to market is an advantage.

Something of a myth, I fear. Far easier to learn from the mistakes of the first mover.

[JEDIDIAH]

Re: Tabarrok's curve, first mover and the elephant

>>In the real world, being first to market is an advantage.

>

> Something of a myth, I fear. Far easier to learn from the mistakes of the first mover.

That's still not a problem. Progress will occur rather than everyone being stuck in a 20 year quagmire waiting for some patents to expire. The current market leaders benefit from this despite whining that others want to do likewise to them.

[Tom 13]

Re: being first to market is an advantage.

There is a story told here in The States to remind our manufacturers that they no longer rule the world. One of our wire manufacturing companies created a new thinner wire that required significant advances in tooling technology. They proceeded to send samples around the world to show everybody what they had done. Before they had their manufacturing line tooled and running the sample from Japan came back. It had been threaded with a smaller wire.

Being first to market is also clearly not beneficial in places like pharmaceuticals. The cost is all in the research and testing. Once you've got a sample it's fairly easy to break down and synthesize the drug. With no research and testing costs to recover, you can undercut the originator's price a hundred fold.

[Tom 7]

We're a lot further to the right on that graph than shown.

From watching people develop software for the last 35 years I'd say patents have a far more debilitating effect than just bringing innovation back to the point where its on par with no patents. That may have been the case with hardware but with software the cost of 'an invention' is merely a library call or two and not a whole production line. I've spent three months working on a patent application for a company where the software to implement it was written during a meeting.

[WatAWorld]

Re: We're a lot further to the right on that graph than shown.

I wonder how many ideas and innovations have been scraped because the cost and complications of patenting are too expensive and how many ideas and innovations have been scraped because the risks of infringing on some unknown patent are too great.

[Tom 13]

Re: We're a lot further to the right on that graph than shown.

Software is protected more by copyright than patent. Frankly, in most cases I think it should be patent not copyright, both for the shorter time and the ability to challenge the protection. There are few instances in which I can see software requiring more than 15 years of protection, in fact I think 7 should be the mean. I'd be willing to flex and make it more like trademark: you can keep it so long as you are supporting it.

But that sort of change will never make it through Congress.

[WatAWorld]

Duration of copyright protection is too long

Wonderful article.

I only see one problem, that being the length of copyright protection is too long for what it currently covers and would also be too long for software. It has evolved evolving from 'life + 20 years' to 'life + 95 years', and there is significant lobbying to lengthen the duration even further.

[Dr. Ellen]

Re: Duration of copyright protection is too long

Amen! Really good writing (movies, etcetera) will still be around when the copyright expires -- but everything else will have gone out of print and been forgotten. There are a lot of books that deserve better, but reprint is impossible because the copyright-holder is either unknown or unavailable.

Now imagine that happening to an algorithm.

[clean_state]

There is something wrong with your assumptions

"A patent protects what you do / copyright protects how you do it".

That analysis is too shallow to help us move forward here. A patent has to protect a specific way of doing something, even if the specificity does not go as deep as in the case of copyright.

Otherwise, I can patent the "cure for cancer", the mere idea of curing cancer, before anyone actually finds a working cure for cancer.

[NumptyScrub]

Re: There is something wrong with your assumptions

quote: "Otherwise, I can patent the "cure for cancer", the mere idea of curing cancer, before anyone actually finds a working cure for cancer."

You can patent a process (the method of doing something), so yes, should you feel inclined you could brainstorm a few possible generic cure vectors and then patent the process.

e.g. "A process whereby a Destructive Pathogen (A), is introduced via a Deployment Vector (B), such that it can come into contact with the tumourous cells. The Destructive Pathogen (A) is protected by a Deterministic Matrix (C) which provides a Method (D) of determining the presence of tumourous cells. When in such a presence, the Deterministic Matrix (C) releases the Destructive Pathogen (A) allowing it to target and destroy the tumourous cells."

Pad that out with enough legalese and I reckon you've successfully stifled at least one way of fixing a global problem. Go go submarine patents! :)

[JP19]

The problem with patents

The problem with patents is their value is based on how useful the 'invention' is.

The aim of the patent system is to encourage invention and sharing of the resulting knowledge. To adequately encourage invention the reward needs to reflect the amount of effort and expense that went into invention not how much money can be made by exploiting it.

I suggest patents should be filed with a claimed value representing the effort and expense that went into the invention and that value may be challenged. The holder would be required to give full and transferable rights to anyone paying the claimed value.

That would get rid of silly round corner patents which couldn't claim more than a few hundred $ value while the likes of big pharma investing millions in R&D could easily claim million $ values.

[Torben Mogensen]

Re: The problem with patents

I agree, and have previously proposed a similar idea. The main problem is that true innovation is hard to measure as effort and cost: If you have a flash of inspiration and find a truly ingenious solution to a problem, what is your cost and effort? Do you count all the non-productive hours where you didn't find anything of value? Do you count all the time you used to educate yourself to the level where you could understand the problem (and its solution)?

Patents have meaning in two situations: 1. Where a product has cost a fortune to develop and test but is easy to copy (such as medicine), 2. Where a simple and ingenious solution is found to a product -- something that nobody had seen before, but is obvious once you see it. Your idea works for the first kind, but fails for the second. So we should have two different ways of protecting IP: One that covers expensive development processes and one that covers ingenious ideas. The first kind could easily give exclusive rights until the documented expenses including interest rates (plus, say, 50-100%) have been earned back through profits or licensing. The second kind would need some other mechanism that is a lot harder to make fair. It could be done by making a panel of experts in the field rate the innovation of the solution and assign a value to it. Until that value is regained, the inventor keeps the rights. It should still be possible to challenge the rated value, for example by pointing to prior art.

Speaking of prior art, a major problem is that patent offices only search previous patents and not scientific literature. So patents are often granted for things that have been known in scientific communities for ages, but never been patented. These patents can be challenged, but it is far too costly to do so. Maybe patents should have a trial period: Anyone can, for a modest fee, indicate prior art. If the prior art is accepted, the fee is returned and the patent invalidated.

[JP19]

Re: The problem with patents

"Where a simple and ingenious solution is found to a product -- something that nobody had seen before, but is obvious once you see it."

I don't see that as a problem. The number of ideas which no one has ever thought of before and isn't likely to in the near future are almost zero and that is much more the case than it was a century ago. People are going to have simple ideas anyway - the lack of possibility of making a pile of money from a simple idea isn't going to stop people thinking them or cause them to forget or keep them secret.

I don't mind the assessment of claimed values being generous and reflecting effort and costs put into other bad ideas.

People seem to think if they have one good idea they deserve to get rich from it, like having ideas is some kind of lottery with a jackpot - they don't it is the flawed patent system which has produced that kind of thinking.

[Anonymous Coward]

Re: The problem with patents

""Where a simple and ingenious solution is found to a product -- something that nobody had seen before, but is obvious once you see it."

I don't see that as a problem. The number of ideas which no one has ever thought of before and isn't likely to in the near future are almost zero and that is much more the case than it was a century ago. People are going to have simple ideas anyway - the lack of possibility of making a pile of money from a simple idea isn't going to stop people thinking them or cause them to forget or keep them secret."

I disagree with this reasoning with the following example.

When Jimmy Carter was running for the White House he made a comment about having been so busy running that he hadn't been able to sit back and have "an original thought" in some time. That statement caught my attention and started me thinking about whether we ever have any "original" thoughts. I came to the conclusion that, in fact, we do. The best way I can express that is to remind the writer above that the pace of intellectual (and technical, etc.) advancement has been accelerating throughout history and continues to this day. Some of that is because we have more people than ever before, but is probably better explained by more "original" thoughts or ideas, and building on the previous knowledge that has been gained throughout history. What do you think?

[Tom 13]

Re: The problem with patents

I like that suggestion!

It may be the most sensible idea I've heard in any discussion about the problems besetting our IP rights issues.

[dave harnet]

Re: The problem with patents

Equating cost and value seems unfair.

Innovation is risky. For innovators to survive, one successful product/idea/patent need to pay for n failures.

Cost is intangible. My painting of a vase of flowers is worth less than Van Goghs, even though my paint cost more and I spent longer at it. Experience, genius, and name recognition are hard to account for.

[Anonymous Coward]

How about taking a cue from the music industry for derivitives?

Lots of air has been spent talking about the quality of patents, and I agree, most are horribly arcane, vague, trivial, or even completely deceptive, but we need to start at the back end.

I believe a patent should require no more than 2 full pages to describe fully, with additional articles added to specify applications for it, for example: a waterwheel "invention" might specify it's function, spinning in connection with water, but then to clarify for the layman in regards to it's assertion, add an article to show it's potential use as a power/work generating device, and another article showing it's potential being a rotary paddle when the power/work is generated by something else... this is a crucial bit I'll get to below...

Now the back end argument is simple. Today, we have DJ's and remixing "artists" who have never invented a sound, and are able to produce new works of "art", they are allowed to sample, modify, and reproduce sounds to form new tracks. I know the negotiating with the various rights holders can be tricky, publishers, authors etc, but in a patent situation, this needless division wouldn't exist (or maybe it should? manufacturers patent vs scientific patent?)

So let's say patents are as they are today, complete and total rights to an idea, except that we add a compulsory licensing system, so that anyone who wishes to use a given patent in a derivative/inventive way can (ie. not directly competing). Then the "application" article appended to each patent would be critical to enforceability, every intended use would have to be spelled out to be covered (amendments could be made to add more of course), and the rights to it would stop there.

Therefore, if someone were to invent a whole new application for a patent, they could enjoy patent protection for themselves, with a mandatory licensing fee or royalties to the original patent holder (there could be a standard FRAND scale here) ....

Imagine someone named George invented a food processor, based loosely on a patented propeller designed for aircraft and boats originally, but the patent had never listed that as an application, then George could file an amendment to the original patent with his application of it. This would ensure his "invention" or "novelty" is permanently associated with the original patent, and the coverage of his rights is clear to everyone, and he would be free to assert ownership to that application of it only, provided he maintains his licensing of the original patent....

And perhaps the best part for the existing patent owner, if George's business ever defaults on his licensing scheme, or goes out of business, the original patent holder can file an amendment to assume ownership of the application.

Now how do we make this happen? :)

[Decade]

Re: How about taking a cue from the music industry for derivitives?

Horrible idea.

In remixes, the samples came from somewhere. If you have decent record-keeping, you could trace where your sample came from, because it definitely did not come from you. Or you can make your own sounds, and then nobody could assert a copyright on it.

We are deluged with low-quality patents. You can't use them to build anything. You can only invent your own thing, and then get sued by a patent troll. You can't use good record-keeping to track what inventions you're using, because they're independent inventions. And then patents that you never knew about will appear and sue you.

I'm not entirely pleased with music licensing, either, but that's a different story.

[Anonymous Coward]

Better patents start with the Examiners

Way back when I was involved with this stuff, I recall the major shift when Examiners were told that applicants were customers and they should be customer-centric. The philosophy changed from "Why should your claims be granted?" to something much weaker. Hopefully, the old ways may be returning.

[Flocke Kroes]

Easy patentless way to fund things like flesh lights

kickstarter

[dr2chase]

Not that simple

I think Tabarrok's curve is over-simplified. If the quality of patents themselves is raised I think you get more benefits from stronger protection, and if the quality is lowered it all goes to hell. (This assumes that "strength of patent law" is not another phrase for "patent quality".)

Loser pays, I think it would be nice if there was some nuance there for small entities (this appears in other parts of the patent process). You rarely go trial with certainty of victory -- if Tiny Inventor goes up against Rapacious MegaCorp, loser-pays allows RMC to intimidate TI merely by overspending on defense. A 10% chance of being on the hook for $500k is one thing, a 10% chance of being on the hook for $5M is something else (and accounting rules being what they are, RMC could easily "spend" $5M without it actually costing them $5M). Perhaps, "loser pays, not to exceed 3x own legal costs" or "one suit per year, loser does not pay", with appropriate RICO statutes used to swat down the rats' nests of LLCs that are usually constructed to game such rules.

I really do think that the issue with software patents is one of quality (disclosure: I haz some). Depending on where you set the knob for "obvious", there might be more software patents, or fewer. I don't think we need to lower the bar, but they're not all crap, and they're not all part of the "half-dozen wonderful ideas I had before breakfast". An example of a patent that I consider truly wonderul and non-obvious is Joel Bartlett's conservative-compacting garbage collector; when I heard it described, I about fell out of my chair, I was so amazed at its cleverness.

[Pahhh]

My perspective as an author of several software patents

I have several software patents in my name and a bunch pending. Mainly because its what my industry does and if you don't do it you have nothing to bargain with or a competitor could create a patent before you had chance to release your product. Crap yes, but a necessary evil. Its an expensive game and it makes it incredibly difficult for small companies .

Frankly if tomorrow all software patents were destroyed, I would rejoice. I have over my career looked at untold amount of patents and I don't think any of them are really worthy of being labelled "inventions". Could be my industry I dont know. The difference between the software packages has generally been how well they were implemented rather than a true patented invention. The code is already protected by Copyright so what's the value of the patent?

Seems to me a bunch of small fixes will go a long way:

- Reduce life of a patent to 5 years

- US courts should charge the loosing party in a patent litigation case the cost of the winning side

- Remove software patents and the aesthetic design patents (eg Apple rounded iPhone case BS)

[Anonymous Coward]

Loser pays turn the tables 180* in favor of the big companies

The current system sucks because as the author states, a little patent troll can cheaply file and get settlements because the cost of all the expensive lawyers a big company uses for such matters will be higher.

If there's a loser pays system, what's to stop a big company, an Apple or a Samsung, for instance, from going out of their way to rack up big legal fees to scare little companies away from suing them at all? If some little company with a net worth of a couple million tried to sue one of them in a case that might go on for a while they can bring out their $500/hr lawyers and $1000/hr expert witnesses at trial and run up $2 million pretty easily.

The fear of that outcome is as likely to keep small companies from suing as the current situation makes the big companies more likely to settle.

I'm afraid there isn't a simple solution that's fair to both parties.

[NumptyScrub]

Re: Loser pays turn the tables 180* in favor of the big companies

quote: "If there's a loser pays system, what's to stop a big company, an Apple or a Samsung, for instance, from going out of their way to rack up big legal fees to scare little companies away from suing them at all?"

If you aren't confident of victory, then you probably shouldn't be going to court over it in the first place? Litigation with the expectation you'll likely lose is a tool of large corporations wanting to reach settlement; they aren't litigating to win, they are litigating as a bargaining tool to reach a licensing agreement. Little companies shouldn't be doing that in the first place, because as you point out, it will bite them on the arse.

If the small company are confident of victory, then they can go ahead and (over)spend on as many fancy lawyers as they like, because the megacorp will have to finance it for them. The whole point of loser-pays is that it attempts to discourage weak litigants from attempting to use "pay-to-win" tactics to bolster a weak legal position; if you lose, the amount spent fighting it in court becomes entirely your problem on top of any punitive damages you become liable for.

I'm thinking that it makes it more attractive for larger corporates to consider licensing the work of smaller companies, rather than rip them off and then have to fight them in court and possibly losing. IANAL though, so I'm probably making the mistake of applying logic to the situation rather than experience.

[Tom 35]

Wrong

"Of course there's nothing wrong with the idea of Patent Assertion Entities at all."

There is a big difference between a University or other inventor setting up or hiring someone to manage their patents, and selling the patent to a troll. If you could not sell a patent only license it that will kill the worst of the trolls dead.

But that has as much chance of happening as shorter copyright lengths in the US.

[Tom 13]

solution is to make the PAE liable for the costs of fighting for licensing fees

Except that won't work in worlds where cars aren't powered by unicorn farts.

It's based on the erroneous assumption that the PAEs will lose most or even a decent percentage of their suites. But they won't. They already target small companies without the resources to fight them. That won't change. What will change is that the PAEs will shake down the small companies for their lawyers fees in addition to the patent damages.

[Decade]

Abolish patents to create a clean slate

We have too many low-quality patents. Just improving the rules about new patents would still leave at least 20 years of bad patents for us to sort through. Patent reformers have tried making it easier to reexamine existing patents, but these efforts have been rebuffed by lobbying from Microsoft.

If we abolish the patent system, then we can cheaply abolish all bad patents. Then we can start patenting again with a clean slate.

[Feldegast]

What about Open Source??

"One [option] is simply abolish patents because they're the invention of the free marketeers. This woefully misunderstands the economics here: the patent exists because even we free marketeers agree that the public goods problem won't be solved without government sticking its oar in."

in FOSS development the incentive to innovate is to "solve problems" not "make money" so the idea that patents are even needed is flawed in this development model and even this software makes significant money without needing to rely on patents which for computers frankly are silly, after all, programming is math and this is explicitly excluded in patent law even if lawyers disagree so they get mega bucks

[Squeezer]

USA vs. rest of world patent system

A lot of the complaints coming from the USA don't apply so much in other places like Europe. In my experience the quality of patent filings and examination is a lot higher here -- I've very rarely had a patent application rejected in the USA but the EPO has very often found valid prior art, needing modification of the patent to either explain clearly why this is different, to narrow the claims, or sometimes to just withdraw the application.

We also don't have the same troll/PAE problem as the USA for the reasons stated earlier, software patents as such are not allowed, and the costs of patent lawsuits are not as stupidly high. So don't assume the system is as badly broken worldwide as it is in the USA, because it isn't.

It's still not perfect, patents get granted which shouldn't, and companies use them to stifle a market instead of energising one by leading it. But without patents there's no reward for innovation, you can spend years and millions developing something radical and new and then see it directly copied in a few months by somebody who then undercuts you (because they haven't spent loads doing the development) and takes the market away.

But the criteria of it being novel and non-obvious should be rigorously applied -- especially in the USA -- to prevent stupidities like patenting a rectangle with rounded corners and a screen on one face...

[tom dial]

Re: USA vs. rest of world patent system

This assumes implicitly that patents and copyrights exist to reward the inventor/author. In the US Constitution it is not put quite that way at all. Rather, the purpose is to "promote the progress of Science and useful Arts." A time-limited monopoly grant to the inventor or author is merely a means to that end, the implicit quid pro quo being, in the case of patents, disclosure so that others might build upon and extend the benefits of the invention.

Granting monopolies was not thought to be a good thing, to be tolerated for an offsetting public benefit.

[tom dial]

A couple more suggestions

A good many US patents are sought by academics or others working on grants or contracts paid by the government - i. e., the people. Accordingly, those patents, if granted based on the hopefully improved novelty and non-obviousness criteria, should be assigned to the public. Similarly, journal articles reporting on government funded research should be published, along with all of the relevant data, on a public facing server for download by anyone who wishes, and their copyright licensed to the public under a Creative Commons license.

If we paid for it, we should own it, and the inventor's reward should be the income received in exchange for the work done.

[Anonymous Coward]

Re: A couple more suggestions

Along this vein, I've never understood why a photographer who was paid to shoot a family portrait owns the photo. Freelance work, fine, but not work paid by someone. The person paying should own the photo.

And what about medical records. Why can't I get a complete copy of all of my medical records. I or my insurance have paid for them, why can't I have a complete copy?

[gazthejourno]

Re: Re: A couple more suggestions

Under UK copyright law, the person commissioning(i.e. paying for) the photo owns the copyright - the specific example most of the textbooks give is your one of family portraits.