EFF, PubPat Each Seeking Some Patent Sanity 201
AbstracTus writes "According to Wired, The Electronic Frontier Foundation is trying to get the U.S. Patent and Trademark Office to re-examine 10 patents that were selected from public submissions. We slashdotters often curse patents that should have been rejected, but are not. Do you think that the EFF can have any influence on the U.S. Patent Office? Are there other actions that are more likely to work?" And sharkb8 writes "The Public Patent Foundation is searching for
people with experience in all technical fields to help examine patents. This is the perfect chance for attorneys, law students, and geeks in general to do some pro bono work. PubPat is the group that recently
challenged one of Microsoft's FAT patents."
Influencing the PTO (Score:5, Insightful)
The best way to influence the PTO is probably through Congress.
Good (Score:5, Insightful)
Re:Influencing the PTO (Score:3, Insightful)
Patents should be examined... (Score:2, Insightful)
Don't Forget About... (Score:5, Insightful)
lawyers 1, techies 0 (Score:2, Insightful)
Great onefor the lawyers: they earn a lump in prosecuting the patents, then leave the s**t hanging around for the chump techies to do free patent busting work.
If this is going to happen, it should be based on an _actively_ votable (i.e. "polling booth") list of patents (or, at least, patent areas) corresponding to important open source projects, e.g. "patents relating to scheduling improvements in operating systems". I think these are more important than "1-cluck shapping".
Re:Hmm (Score:5, Insightful)
FYI
Giving the benefit of the doubt to the inventor is not "pro-business", it's because (and the same principle is followed in the EPO, and probably elsewhere) when the examiner can't tell one way or another, it should lean towards granting the patent: and if the patent is dodgy, then it will be resolved later.
The real problem is just that: in the EPO and elsewhere, there is a decent opposition system, where anyone can file and participate in opposing the patent. In the USPTO, the "re-examination" procedure is very limited and very poor.
I mean, just think of the scientist that comes up with an amazingly new novel way of doing something, but the examiner (who, you have to admit, could never be as on top of the field as a star scientist) isn't "quite" sure: denying the patent would be outrageous. By definition, inventions are novel and non-obvious: and that means "they go where no man has gone before", thus it's not surprising that figuring them out can sometimes be a problem.
Re:Influencing the PTO (Score:5, Insightful)
Most congress-critters are lawyers, have
friends who are lawyers, and/or are indebted
to lawyers.
Who profits the most from silly patents?
Lawyers.
What makes you think they are ever going to
do anything to change that situation?
Headline: "Old Man Yells At Cloud" (Score:3, Insightful)
No.
Re:Hmm (Score:5, Insightful)
No, it should be pro-*citizen*, not pro-business. USPTO being pro-business is the reason we're in the situation we're in. Patents and the patentability of ideas should reflect the good of the citizenry, not the business merits of the idea in question.
Look and feel... (Score:5, Insightful)
Where the process has become abused is when the Patent Office began taking patent applications that didn't require a manifestation of some sort to "prove" your effort is unique or uniquely yours. There's nothing tangible in many of these contentious patents. They're just "ideas" and "descriptions". There's no "proof" or "gadget" that you can gin up to bolster what you're trying to protect. There's no math or engineering involved, such as programmatic effort or time in a machine shop.
That is where the demarcation should begin. When Xerox sued Apple and lost over the use of graphic icons on a 2D screen and similarly, when Apple sued Microsoft over "look and feel" and lost; That should have established the ground rules and in my opinion, neither Xerox nor Apple had a case. Instead, people have been testing the upper limits of what patents protections ever since based on nothing more than the motto, "You might get lucky.".
The golden rule (Score:5, Insightful)
Pro is to Con like Progress is to Congress.
Unless you're a CEO of a large corporation or otherwise are a Man Of Means, there's no chance in hell to influence congress. And not only do you have to influence congress, but you have to influence a majority, and influence it *more* than your opponents. Which are the big companies holding the patents.
Yes, we have the best government money can buy.
Regards,
--
*Art
Did anyone here actually read the article? (Score:4, Insightful)
They make no mention of the plethora of inane patents that have been granted (double-click patent, spam filter patent, swinging sideways patent).
The approach they are taking seems less likely to cause a big stir, because they are going to be hard fought with little gains in patent approval procedures
It seems to me that the easier way to get things to change (for the better) would be to gather up a list of 100 patents and systematically prove that every single one of them was extremely foolish to grant. Embarass the USPTO in the media with obvious claims of prior art.
Basically what we are looking for here isn't a few patents to be overturned, which is what the EFF is trying to do (its a nice start, don't get me wrong), but rather we need a change to the system, and unfortunately it appears it can only be done through an act of congress or through repeated abuses of the USPTO in the court system...
Re:Hmm (Score:2, Insightful)
Overly simplified, but its a matter of reallocating your resources more efficiently.
Weeding out 10 insane patents (Score:5, Insightful)
Re:Influencing the PTO (Score:5, Insightful)
Candidates want money so they can spend it on TV ads which they hope will create votes. Given a hypothetical choice, politicians would rather have votes than money.
Look at the most effective pressure groups in this country. What they have in common is large memberships full of people who log off from their computer and vote.
Re:Hmm (Score:3, Insightful)
Not over-simplified. Business managers do the same thing every day.
Oh, and all your cost savings from laying off the factory workers is going to be more or less eaten by paying for their unemployment, and then paying for their replacements to be trained when you go to ramp up for production again.
Patent squatting should be illegal (Score:5, Insightful)
It's not just stupid patents that are bad though. Patent squatting (just sitting on patents) should be 100% illegal, as it just impedes the use of certain ideas by making them more costly than others.
Patents were intended as a means of helping inventors get novel products to market by creating a brief and artificial "honeymoon" period. Patent squatting is a complete corruption of that idea.
If you are not bringing product to market, you have no moral right to sit on an idea in the hope that someone else will do the hard work of developing a raw concept into a working reality. Companies with teams of lawyers that merely patent squat and actually create nothing are simply scum.
Patents should expire by default within 3 years unless you confirm in writing to the patent office that you are actively working on something that uses the patented idea as a central component or feature. And *all* patents should expire within 10 years, regardless, because skewing the market this way should only be a temporary condition.
Increasing the cost of ideas is not in the interest of humanity at all.
Re:Patents should be examined... (Score:5, Insightful)
The following reasoning is also heard from time to time: if an invention is new (another requirement for patentability), this means it is consequently not "obvious", since otherwise it would have been invented already! Patent law is only a hair away from allowing one to say that it very clearly and literally allows trivial patents!
As the Deputy Director of the UK Patent Office once said:
And the fact that until now few people complained about this in the field, and that those trivial patents cause a lot more problems in the software field than in other fields (and that there seem to be even more trivial patents in the software field than in other fields), once more shows that software indeed is different. Patent law is simply completely and utterly unfit to judge advances in pure logic with.
Re:Look and feel... (Score:2, Insightful)
The USPTO has never required actual manifestations of inventions. The USPTO has always required "conception" and "reduction to practice", which is evidenced by a written description which is sufficient when it enables one "skilled in the art" to build / create the invention. Only in the rarest occasions (i.e. the Wright Brothers "flying machine") has the USPTO requested actual and physical manifestation of invention. The patent application itself, along with its specification and figures, is the "proof" the the inveniton is novel and non-obvious.
To require actual physical demonstration of inventions before the USPTO would ensure that only the richest and most powerful inventors (i.e. corporations) are able to receive patents, as only the rich and large would be able to afford the cost of sending attorneys (or other agents) for in-person arguments.
On a side note, IMHO all the problems continually articulated here on /. regarding patents can be solved by a better re-examination process. Currently, the fees for ex parte reexamination (where you pay the fee, and the USPTO reexamines someone else's patent) and inter parties reexamination (where you pay the fee and get to argue against the patent owner) are excessive, and thus are not used widely. If the fee for inter-parties examination was less, say a few hundred dollars, i would personally challenge many of the patents, as it would be cost effective. However, the fee is over $1,000 for inter parties reexam, and that doesnt include my time, which is why so many of these patents go unchallenged, and why so many companies simply pay royalties.
Re:Hmm (Score:3, Insightful)
I can't say I find denying someone who has a (legal) right to a patent worse than giving one to someone who doesn't have the right. In the former case, one person's business/investment is hurt (with a small chance that he won't be able to do other research thus hurting society/innovation as a whole, but how many "lone-inventor-turned-super-innovating-company-tha nks-to-patents" stories do you know?). In the latter case, all other businesses and society as a whole are hurt. Keep in mind that there is no moral right to a monopoly on an invention.
Unlike copyright, patent law is a purely economical law, so unless you have proof that more patents = better economy under all circumstances, denying patents in case of doubt does not necessarily go against the concept of the patent system.
Re:Patent squatting should be illegal (Score:3, Insightful)
Not every inventor wants to be a marketer, too. Some want to sell their ideas and start work on the next thing. These inventors would be severely penalized under your scheme -- because their products would be worth less. Even twenty years is not that long to wait for some technologies...and if a business is faced with paying for a product or simply waiting three years for a patent to expire (knowing full well the inventor won't have the ability to market his own products), they're gonna wait.
Re:Look and feel... (Score:4, Insightful)
Patents for an idea makes sense, in part, when an inventor wanted to protect his or her ability to profit or control the result of their effort. Patents and intellectual property protections were designed to prevent people from using your idea or effort to their betterment at your expense.
You're putting the cart before the horse. Patents and Copyright were not introduced in order to protect the business interests of inventors or authors, this was only the means. The ends were to encourage more innovation, as outlined in Section 8 sentence 8 of the US Constitution:
The Congress shall have power (...) To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;
These rights (patents, copyright, trademarks and trade secrets, which are only contractual) are now being gathered under the collective, misleading name of intellectual property [wikipedia.org], in an effort to bypass the original justification of these rights, formerly referred to as exclusivity rights, in order to turn the means into the ends.
So first there were exclusivity rights, which were meant to serve the public, and whose benefits to the inventor/author (or rather, the patent or copyright owner) are merely incidental. Now justification and means are to be reversed. Intellectual property is meant to serve the rights holders, and benefits to society are merely incidental. More importantly, it does not even matter if society as a whole suffers from IP legislation. Logic patents and copyright are or are now intended to be perfect instruments of power for corporations. Large stashes of patents allow large software companies to lock out competition by smaller companies, and monopolize markets. Likewise, large music labels, which now are the copyright holders [recordinga...lition.com] to almost all songs they release, are successfully lobbying for ever more severe copyright laws in an effort to shut down alternative promotion channels like P2P and independent [powerpopradio.com] internet radio [kuro5hin.org] stations. The big labels are afraid that, while airwaves are scarce and can easily be controlled by payola [howstuffworks.com], Internet traffic is basically unlimited in range. You cannot have 500 national radio stations since the frequency bands are limited, but you can easily operate 5000 Internet radio stations without any bandwidth collisions. Incidentally, while the RIAA claims to have suffered massive losses due to Internet "piracy", many independent labels have experienced benefits [csmonitor.com] from increased promotion of their music via P2P and other channels such as (the former) mp3.com and independent internet radio.
I see the intellectual property movement as part of a general neoliberal self-referential justification of capitalism, where the original goal of improving living conditions for the population is increasingly irrelevant. Today's capitalism is intended to be implemented for capitalism's sake, not because it would make lives of men better as compared to marketplace economies with a stronger balance between public and private property. The manipulations of the Californian power market, or the privatization of water supplies into monopolists' hands in South America are just two examples of many.
Re:No reason not to patent (Score:3, Insightful)
On the other hand, you can keep something a trade secret. That means you can pofit from your invention for as long as you can keep other people from figuring out how to reproduce it. Trade secret law covers your employees selling the secrets, but your competitors may be able to legally reverse engineer your invention.
And you don't want to start fining poor patent examiners. These are usually recent grads with a tenuous grasp of the English language from crappy schools. Don't forget, they ARE government employees.
It's the process of getting patents granted that's the problem. Most patents get rejected the first time. However, an applicant can purchase an unlimited number of re-examinations, chagning the wording of the patent slightly every time. Patent examiners only get credit for examining a patent the first time, and when they finally close the patent. You bother them enough, and they'll eventually grant your patent, or part of it at least.
As for fining those with dodgy patents, if there's a real question of whether or not a patent is valid, it'll end up in court. And what happens when Microsoft starts threatening some Mom & Pop operation with having a patent overturned and massive fines? How easy would it be for Gates & Co. to say "We have thousands of lawyers, and if you try to stop us from infringing on your patent, we'll get your patent invalidated. If we do, you'll go bankrupt."
Re:Hmm (Score:3, Insightful)
You can have 100 factory workers producing products that net you $500 profit.
or
You can have 100 researchers developing prodicts that net you $1000.
His question is: Why can't you have 100 factory workers and 100 researchers make a profit of $1500? Is it really less expensive/more attractive to destroy and rebuild an otherwise perfectly good infastructure and workforce than it is to add to it?
=Smidge=
Re:Influencing the PTO (Score:5, Insightful)
"We want the practice of live recordings being made available immediately after concerts to be in widespread use and welcome all legitimate and serious conversations with those interested in licensing our patent," Becker said in his statement. "But we will not conduct licensing conversations in public or via the media. Nor will we put artists in the middle of those business negotiations -- or try to hide behind them as we negotiate."
Broadcasters already love attacking Clear Channel's arrogance...here, Becker is acting like the patent issue is not a matter of public concern, but their private business. And if anybody wants to record and sell their own live concert -- well, they have to talk to CC. Incredible gall, very newsworthy, and I'm sure there's another news story in each of the ten.
Any good newswriter will be able to make lots of hay with this. Given the "Powers That Be," public awareness is needed more than anything else.
uhh... the PTO is the one that fears change... (Score:5, Insightful)
$770 to file the patent (assuming it comes in under the 20/4 total/indpendent claims allowed) + fee X + fee Y during prosecution. Application is allowed. Now pay issue fee + maintenance fee 1 + maintenance fee 2, etc.
Second scenario:
$770 to file the patent + fee X + fee Y during prosecution. Application is rejected. No issue fee. No maintenance fee.
See the problem? No real monetary incentive to reject a patent. The PTO isn't harmed by patent litigation, so let the holder/infringers battle it out in court. No skin off the PTO's back.
Re:Patent squatting should be illegal (Score:2, Insightful)
I agree. But none of these research houses (that I know of) specialize in software. New software ideas have come from universities (like quicksort) or come about while developing a software system that can be sold for a profit. I can't think of any software idea that is so unique that it would not be thought of by thousands of other people who were trying to solve the same problem. Software patents are a hindrance to software development not an aid to innovation.
Re:Patent squatting should be illegal (Score:3, Insightful)
Require a working example. Maybe not delivered to the patent office, but at the time of filing, it should be proven that your technique works, and that you've made it work.
Re:Patent squatting should be illegal (Score:5, Insightful)
(Rule 1) The purpose of patents is to encourage innovation.
(Rule 2) There is no Rule 2.
In other words, patents are not about maximizing or minimizing profits, helping inventors with their time management or life-style issues, solving social inequities, or any other subjective notion.
Yesterday we had a story about a bank that patented it's furniture arrangement (I'm oversimplifying, but the point is valid), and every day or two we here about another patent issued for things that we all take for granted.
At it's peek of usefullness the USPTO issued patents largely to manufacturing processes or for items that required a manufacturing process. It had nothing to do with inventors wanting or not wanting to be marketers. My experience is that most inventors LOVE being marketers. What they don't love is coming up with the funds to manufacture their inventions. They also don't like the risk of manufacturing 10,000 or something and then finding out that someone else can make the same thing for half the price. The patent process allows (or allowed, when it was being used properly) the inventor to separate the "cost" of coming up with the invention from the "cost" of producing, selling, marketing and a whole bunch of other risky activities. When most patents covered "things" this made a lot more sense. It makes much less sense when the "manufacturing" process consists of re-arranging furniture in a room, or typing 15 lines of code into an editor.
To me, things that require little or nothing in the way of manufacturing costs deserve very special scrutiny from the USPTO. That doesn't mean you can't patent software, or a cartoon mouse for that matter, but in such cases I think there needs to be a stricter burden of proof on the part of the applicant. They need to prove that the idea is "significant", and of course that the idea was not already "in the wild" before they had it.
One example that keeps showing up of course has to do with various techniques for selling things. A patent on clicking on an icon to buy something? Isn't that intuitively obvious once you accept the notion of clicking on things at all? Oh, but wait, you can't click on things without a mouse. Hmmm, there were pointing and clicking devices before the mouse however. The light pen depended on LEDs. So, should all e-bay sales generate a check for the inventor of the LED?
Anyway, I think the recent examples we have seen of USPTO activity should make us worry that they are doing more to DISCOURAGE innovation than to encourage it. If you sit down to figure out a better way to code a common activity, sell something on the internet, or wipe your ass, there is a good chance that the USPTO has already issues a patent to cover it. If the world of ideas can be likened to an airplane, the USPTO has overbooked the airplane 10 times over. It is no longer the cost of manufacturing, or even marketeering that should discourage the new inventor, but rather the legal process involved in enforcing your claim. Because so many ideas these days don't involve a manufacturing step at all, and in fact the invention process may have teaken all of 15 seconds, one has to ask at some point, why is this dog chasing it's own tail?
Re:Patent squatting should be illegal (Score:3, Insightful)
That makes no sense: if those non-research companies would have had to dump millions into research to replicate the novel idea for themselves, then this implies that the research house that got the patent spent millions on the research too. If they spent millions (or a lot anyway), how come that now they're willing to let that investment go to waste by leaving the patent dormant and the concept unimplemented? It would make no sense.
Of course, it makes no sense because in most cases that's not what actually happened --- with very few exceptions, the research house didn't spend millions researching an idea, otherwise they wouldn't be willing to let all that money go to waste. And yet, despite not spending much money at all on it, they expect to be earning millions from it anyway on the backs of other people's efforts? That's severely wrong, and not what patents were designed for. They weren't created as a free lunch for speculators. They certainly weren't created for carving out a profitable market niche in some distant future, just because one happened to get the concept on paper long before the market would make it implementable.
Ideas are two a penny --- I should know since I've been in research for 30 years, both academic and commercial. I come up with new ideas every working day since that's my job, and if I were an unprincipled patent whore I could come up with a pile of potentially patentable concepts each year easy, of which I'd expect at least 10% to survive the prior art checks. Do I? Of course not, the patent situation is bad enough already without feeding it more fuel. Instead, the better ideas are woven into products or infrastructure, and the less good ones are fed back into the global sea of ideas just by talking to people. For the most part, that's what research is about --- exchanging ideas with the world, not grabbing them out of the pool and claiming exclusive rights.
If the research house doesn't want to get involved in any sort of manufacturing arrangement whatsoever after taking out a patent, not even by licensing or partnership or subcontracting (which is very common for REAL research labs that do spend real money on research), and instead they just sit on the patent, then they're patent squatters too, nearly as bad as the corporate squatters made up of purely parasitic lawyers. They sure as hell have no special attachment to their wonderful new idea if they make no moves to get it implemented commercially, which is MUCH harder than thinking it up. Under those circumstances, once a certain (quite short) period has elapsed, the idea should be freed from further restraint. Product cycles are becoming ever shorter, and 5 years is now an eternity.
Let me say it again, slightly differently. Impeding the takeup of ideas into products is not what patents are for, and that's exactly what you're doing if you sit on a patent for more than a typical product cycle. If it wasn't licensed from you in the first few years after your patent was published then the idea is not worth enough in the market to cover the royalty payments, in which case you are simply denying the world from having the corresponding products and nobody is gaining anything. That serves no purpose.
Inherent in the system (Score:3, Insightful)
When you assert the right to punish people who copy and immitate for any reason, innocent people are going to get hurt no matter how nice you try to be.
Re:Hmm (Score:3, Insightful)
Um... If your factory makes a profit of $500 a year, and you sell it, then you make $500 less each year than you would have if you had kept the factory and hired 100 more people to be researchers.
Remember, profit = earnings - expenses. The wages of the 100 people working there have already been paid by the time you get the $500 in your hand.
Having both a factory that makes a profit of $500 a year and a research lab that makes a profit of $10000 a year gives you a total profit of $10500 a year. Having only the research lab makes a total profit of $10000 a year. In other words, it doesn't make sense selling any profitable operation, unless of course you can make some sucker pay more than it's actual worth, and then get another sucker to sell you another factory for less than it's actual worth.
Problem is, this means that there's at least one sucker per every financia genius, and everyone thinks they're the genius and not the sucker ;)...
No, in this example it's more like throwing away a chicken that laids silver eggs because they're not golden. Nothing stops one from having both the gold and the silver chicken...
Impatience is the problem; people rather kill the golden chicken to get the few eggs currently developing inside of it than wait patiently for it to lay them and then the ones after them. Short-term profits over long term ones, that's the problem.