How to Fix U.S. Patents 471
Frisky070802 writes "IEEE Spectrum has an interesting article on how to fix the U.S. patent system. It starts with an example of how broken the system is, with Smuckers suing a small company for crustless PB&J. It has a great overview of how the system has evolved and how much it favors the big patent holders, and suggests 3 specific fixes: 'create incentives and opportunities for parties to challenge the novelty and nonobviousness of an invention before the PTO grants a patent,' examine the important patents meticulously; don't waste effort on the unimportant ones that can be ousted early, and for examining prior art, use judges and special masters rather than uninformed juries."
And the chances... (Score:5, Insightful)
Europe has the same problem (Score:2, Insightful)
Re:And the chances... (Score:5, Insightful)
This only works for a short time, once a country sees it is getting screwed by the process, it just ignores patent law. It's in everybody's interest to have a system that is ligitimate and encourages inovation, and not blocking patents.
Interesting ideas (Score:4, Insightful)
First, create incentives and opportunities for parties to challenge the novelty and nonobviousness of an invention before the PTO grants a patent.
Prior art 'bounty hunters' and adding some common sense to the patent process sound like great ideas. Too bad they'll never be implemented, due to expensive lobbying efforts by those who stand to lose the most (i.e. the megacorps).
~Philly
Do something about it... (Score:4, Insightful)
Get a job at the USPTO as a patent master. [uspto.gov]
Re:Another idea (Score:5, Insightful)
Never change (Score:5, Insightful)
Re:Another idea (Score:1, Insightful)
Seriously, they are anticompetitive and aid MONOPOLY. If we want monopolies, do it the right way and institute Communism already.
Governement-endorsed monopolies in a free-market system are bad. That's why Linux beats 'doze.
How insightful.
Twice as insightful would be the realization that "doing away with patents" is equivalent to embarking on the road to corporate fascism, where the individual is powerless and the capitalist pigs own your life. Gone are the days when a person can start a small company and bring something new to the marketplace. Gone are the days when a company can lower its prices by developing a more efficient process and retain that advantage. Gone are the days when innovation is rewarded.
Take, for example, your typical Soviet boot factory. You get 100,000 monies to produce 10,000 boots per month. Your dumb ass innovates a new process which produces 10,000 boots for 80,000 moneys - you just proved you have been wasting 20,000 monies every month since you were given your job, you inefficient exploitative bastard. Now your process will be snatched up by all your competitors because you can't legally protect and you end up with no economic advantage - but you DO have tighter profit margins. Congratulations, you clever communist, you have been penalized by your own innovation.
So if you really ENJOY being a powerless cog in a fascist machine who is rewarded for keeping his head down and penalized for independent thought, by all means move your dumb ass to NW China and don't fuck it up for me
Re:And the chances... (Score:2, Insightful)
That's more of a problem with the Corporate/NeoCon climate: everything for me, right now, damn the future and damn the consequences. Boot the NeoCons, and hell, you might see environmental reform too. Most Americans, SUVs and Atkins aside, wouldn't wilfully screw other countries, and would like to see our domestic businesses thrive on its own accord so that somebody can eat besides Joe Millionaire. They've just fallen for the NeoCon's trap of hiding behind God.
Correction (Score:5, Insightful)
In fact, it's been proven that patents hinder competition, but they don't hinder innovation.
Re:Aha! (Score:1, Insightful)
Re:Aha! (Score:2, Insightful)
Yeah, put down the pipe, and embrace alcohol! It's legal, so it must be better.
Re:Another idea (Score:4, Insightful)
Without patents, company C will never disclose what is in drug D, hence stopping future research down related veins. (And thus preventing improvements down that avenue.) Furthermore, other companies will find out what drug D is made out of and then sell it generically. Company C is screwed because it had spent all the money doing the research; it can't compete on marketing, etc., against the companies that are free-loading. Future drug companies will do no research.
People say that we should make all research government-funded. Right. Government-regulation has been such a boon, right?
Not all monopolies are bad.
Re:Pocket Judges (Score:1, Insightful)
One judge can be held responsible if he sells an obviously bad decision. How do you revoke a city from providing jurors?
Re:Aha! (Score:2, Insightful)
Drug dealers are the scum of the earth. Prison is too good for them. MHO of course.
Yes. Most of the drug dealers I have met are nice people who take great personal risks to provide people with freedom of choice. They make a nice profit at it, but still, if it weren't for them our freedom to alter our minds would be lost forever. There are some nasty violent characters in the business, but if they commit assault, they should be tried for assault, not some other bullshit charge. And think about it, how many times do you see turf wars between liquor store owners?
Re:Fixing it... (Score:3, Insightful)
That is called "invalidating a patent" and it is the first thing your lawyers do when you are sued for infringement.
Guess what a patent is worth outside of a courtroom? $0. Guess what a flimsy patent is worth inside a courtroom? $0. The only patent that's worth anything is that which can withstand a validity attack. It's offensive how poorly this idea is understood in the media and the public at large.
Re:Another idea (Score:3, Insightful)
So how is that different from what's already happening in the US?
Re:Fixing it... (Score:1, Insightful)
Welcome to the current system ... find a patent that someone didn't invent, gather proof, and have the patent invalidated.
What is an important patent? (Score:3, Insightful)
Re:Do something about it... (Score:3, Insightful)
"I am going to make a difference...from the inside! I will be different to all the other patent people - I will care!"
*time passes*
"What do you mean I am under my patent acceptance quota? I take time and issue them properly..."
*time passes*
"...but I really don't think we should be...yes sir..."
*time passes*
"[beep] Accepted [beep] Aceepted [beep] Accepted"
Sorry, I had to. You sounded like the plot from a bad 80's movie. You must have missed the bit where they said the reason they did not do a good job was not because they were staffed with evil midgets who used to work for Burger King(TM), but because they had no cash.
Signing up will just make you one of the frustrated masses...
Re:Aha! (Score:2, Insightful)
Why are they the scum of the earth? They are people that see a high-risk, high reward market. Why is it high-risk/high reward? Because it's illegal to sell drugs. They choose to sell drugs because they perceive the reward to be worth the risk.
If you let people make their own decisions about what they can and can't ingest (especially those things that occur in nature, as opposed to some of the current things our wonderful pharma-corps are peddling), and make it *their* responsibility as to the outcome of said behavior, you have immediately introduced incentive for responsible marketing of said substance.
It has been proven ad nauseum that marijuana has far less detrimental (if any) effect on the human system than your average cigarette...but those are legal.
And why are drugs illegal? Hmm?
I suggest you do some googling for the 'marijuana gin', and popular mechanics. You may want to also research the "king's acre" among other things.
clear and convincing evidence (Score:5, Insightful)
Simply reversing this standard might be good: someone who wants to obtain a 20-year monopoly should have to present clear and convincing evidence that the idea he is seeking protection for is novel, useful, and can be reproducibly implemented based on the patent application. If he can't make a clear and convincing argument, then the patent should be found invalid by default.
Furthermore, patents should be found valid and invalid not claim-by-claim, but all-or-nothing. That way, applicants for patents have themselves a strong incentive only to claim what is actually novel and useful. Right now, almost every patent has claims in it that are ridiculously broad, that create unwarranted uncertainty and risk for competitors, and that courts need to spend enormous amounts of resources whittling down.
I think those two changes alone would do wonders for the patent system. But the IEEE suggestions are also welcome.
Re:And the chances... (Score:3, Insightful)
Re:Aha! (Score:5, Insightful)
Some may argue about non-violent drug users being dangerous on some level. But honestly: which do you think is more dangerous: a pot smoking hippie or anyone who just came out of maximum security prison? In general, being gang raped and subject to chronic violence tends to make a man more dangerous. Why would we want to apply a "solution" like that to someone who isn't violent in the first place?
I am strongly for the legalization of marijuana. I donate to NORML regularly. I've never smoked pot in my life.
Cheers.
PS - Another point nobody seems to like is that our prisons have become torture chambers. Sure, it's not our guards doing the torturing (usually) but they turn a blind eye. I don't have much sympathy for violent criminals, but again, we're processing these people to likely become more violent. This is stupid.
Re:Aha! (Score:4, Insightful)
Re:Aha! (Score:5, Insightful)
without offence,
e
Re:Aha! (Score:5, Insightful)
Drug dealers barely even mention a nod, particular those truly "non-violent" ones.
The problem with most of these... (Score:2, Insightful)
Private individuals inventing things in their basements need the patent system (much more than corporations who have vast resources) in order to profit from their hard work. Generally speaking, these guys can't make and market their inventions themselves and instead rely on selling patent rights to larger companies that can make and market them. But usually they need the actual patent awarded to them in order to sell those rights. If it takes 5 years to get the patent, it will take 5 years before they can finally start to sell their product. Imagine if it took you five years before you could get a paycheck. And by then their invention may well already be obsolete. If it takes too long for patents to be processed, you will only end up killing off private inventors.
Re:Patent opposition procedures are no silver bull (Score:3, Insightful)
Even if it does have an effect, all it does is give the patenter an opportunity to craft their claims to carefully avoid the prior art while still being annoying.
For this reason, patent lawyers will often tell you *not* to challenge a patent application until after it's granted.
Personally, I think (Score:2, Insightful)
Patents assigned only to Individuals (Score:4, Insightful)
1) Since inventors are people, how about restricting the assignee to people only.
2) Make all payments to the assignee and or inventor a matter of public record.
3) Make it illegal to withhold license of patents to individuals or corporations willing to pay more than the current maximum amount stated in public record.
(Wordy example):
So Joe Inventor creates a widget for Company Z. Joe would be the inventor and some other person is (maybe even Joe) will be the assignee. Z Company will license the ability to make widgets by paying $1000 to the assignee. The $1000 is posted as a mater of public record. Now anyone or any company can pay $1001 to the assignee and have a license to produce the widgets.
A market effect of an open auction etc..
Reduce patent lengths (Score:3, Insightful)
Patent system gone awry! (Score:3, Insightful)
Re:Correction (Score:4, Insightful)
Yes. Scrap the patent system entirely. A couple of centuries ago, the way to produce a gold or purple coloured ink was a valuable secret. People could be wealthy by keeping such a secret. The patent system was a useful method of getting them to reveal their secrets. Nowadays, we have gas chromatographs, scanning electron microscopes and lots of clever hackers. Reverse engineering is possible in a way that was not feasible in Newton's time. We no longer need to grant patents to learn secrets. It is time that we abandoned this farce.
Re:adult consent (Score:2, Insightful)
Re:Aha! (Score:1, Insightful)
Re:Aha! (Score:2, Insightful)
As much as I agree that people can do whatever the hell they want with their lives (to the extent that it doesn't bother other people AND it doesn't cost the tax payers money through public rehab programs, etc), I still find your statement there pretty funny. No legitimate study would ever say marijuana doesn't hurt your body. Even if you just consider the fact that you are breathing in smoke and depriving yourself of oxygen, it still hurts. Anybody who says otherwise is either a complete moron or a pothead.
Short Expiration w/ Expensive Renewal (Score:4, Insightful)
No mention of triple damages (Score:3, Insightful)
But it completely left out the biggest, IMHO, problem with the patent system: triple damage for "knowingly infringing." This one policy (not sure if it's in the law, or a court precedent) simply has to go before any reform based on competitors will work.
As it is, every IP lawyer tells every engineer to go out of their way not to learn about competitors patents. And certainly don't write down that you know. And abso-friggin-lutely don't let the patent lawyer know that you know. Because if there's proof, boom! triple damages. Regardless of whether you also "knew" that there was prior art, that your company already had a patent that covered the same thing, that the patent was invalid, or that it was obvious to a skilled practitioner of the art.
Overturning this one aspect of the patent system would let tech companies actively monitor their competitors patents, get valuable technical details out of them, and challenge the patents *before* infringement suits are brought by the holders. It would curb the worst of the submarine patents because companies would *know* when someone patents a standard (esp one being developed) without being forced to turn a blind eye to avoid tripling their liability later.
Re:Aha! (Score:3, Insightful)
Nicotine is the most deadly drug (LD50/ED50); the LD50 of smoking pot is so incredibly high it has not been reliably established.
You are FAR more likely (percentage) to die from causes relating to smoking nicotine than smoking pot (in fact, more like then with ANY drug habit, including crack and heroin).
So yeah, pot contains carcinogens, probably as many in raw amounts as cigarettes, but the damage and addictiveness make it absolutely pale in comparison to smoking cigarettes.
Re:adult consent (Score:3, Insightful)
Since most people think that option (a) is unacceptable, we are left with (b) -- and so our money goes to bail out the drug addicts. Therefore, it is our business, and we have the prerogative to do what we can to discourage people from getting addicted to drugs.
(Not that I think throwing them in jail is a very effective way to discourage them, mind you)
Re:Aha! (Score:2, Insightful)
I agree 100%, and don't believe that this is a troll comment at all.
I do make a distinction between 'mind-altering substances' (DMT, MDMA, various shrooms) and the few highly addictive 'hard' drugs that really do fuck people up (ice and heroin come to mind), but that can come up for debate after we finally admit that people have the right to do alter their own minds and bodies at will. You get people who sell harmful products, get people addicted to them, and milk them for all they're worth, and yes these people are scum. Some of those people are drug dealers, but sugarcane farmers, tobacco companies, pharmaceutical corporations, McDonalds and American Express also spring to mind.
"If the words "life, liberty and the pursuit of happiness" don't include the right to experiment with your own consciousness, then the Declaration of Independence isn't worth the hemp it was written on."
-- Terence McKenna
but this is a lie! (Score:1, Insightful)
Scientific studies have been done, and we know that pot is less harmful than tabacco.
To say otherwise without scientific backing of any kind, is mere noise.
Re:adult consent (Score:4, Insightful)
Lack of education about effects of mixing things. - Because we're too busy trying to convince our kids of all the evils that we don't bother teaching real facts. Abstinence-only does not work in sex ed, and it doesn't work in drug ed. People are doing it no matter what, so the best approach is to reduce the harm that may come. And when you lie to people so much about drugs, they stop believing it when you're telling the truth.
Contaminated doses and/or doses in unknown amounts. - When you buy something on the street, you have no idea how much of what is in it unless you take your stuff to a lab before doing it. This causes a very large percent of overdoses. If people inject a solution they KNOW is 10mg/ml, they're not going to accidently inject around 150mg that's required to OD. Not to mention the much lower safety margin and wildly inaccurate dosing of fentanyls that make up for shortages in actual heroin supplies.
and I think it's quite obvious prohibition does a piss poor job of accomplishing real results in harm reduction.
Not just small companies which have a problem... (Score:1, Insightful)
I have to strongly disagree with this as a universal truth (that is, I'm not saying that it isn't true sometimes). It simply isn't the case that the current patent system necessarily favors large companies.
I work for one of those "large companies" (I won't tell you which, but it's one of those referenced regularly in these pages...).
In the case of a large company, patents can act as protection from lawsuits from other large companies (and small ones) through a kind of mutually-assured-destruction type of argument. However, they provide no protection whatever from lawsuits (even though they may be frivolous) from "intellectual property" outfits that ship no products themselves, but file a few patents and wave them at an entire industry demanding money. Even if the threat is entirely without merit, it can tie up a huge amount of engineering effort to defend, especially when there are so many of them (and there are - unless you have been subjected to this, you really wouldn't believe just how frequently this happens).
The important factor which isn't considered in the spectrum article is exposure. A large company is always going to have a much larger exposure to being sued for alledged infringement than a small company that doesn't ship as many products, and is completely defenceless against a company that doesn't ship anything. Your only option is to pay up (if you actually think the patent is valid) or spend a ridiculous amount of money on attorneys.
What should a large company do when somebody shows up at its door every week waving an obviously invalid patent at them and claiming that it owes them a dollar for every of the gazillion products it's ever shipped?
The patent system is broken alright. But I don't honestly think the prescription in the article is the right one. All it's saying is that large companies will be authorized to spend even more money on attorneys earlier in the process. What we really need is much stricter definitions of what constitutes "novelty" to make it easier to toss out obviously unworthy patents whenever it does make it into the hands of the lawyers.
Just the 2c of a weary engineer who spends a hell of a lot of time talking with his employer's attorneys...
How to fix US patents (Score:5, Insightful)
The reason to have a patent system is to encourage the inventors to promote and freely disclose their inventions, rather than keeping them to themselves. Not to protect inventors rights, or anything like that.
So why abstain from guns? (Score:2, Insightful)
Pee tests (Score:2, Insightful)
but it's hard to tell because regular dope smokers often fail at education and end up unemployed
That's true only if "education" is the word for a pee test in your language.
Re:Aha! (Score:3, Insightful)
1 - Fines/Fees/Suspension of specific rights/privilages: This is what we allready use for the enforcement of traffic violations etc. This can be used to deal with people who make stupid decisions but aren't a real threat to anyone. Consuming a drug that society terms "illegal" would be well covered by this.
2 - Community Service/More severe suspension of rights/privilages: Essentialy a method of dealing with people who've clearly done something wrong but who don't represent a physical threat to anyone. This would include the "white collar punks" you refer to. Penalties could range from the most simplistic and easiest forms of community service (helping out with an inner city school) to more distastefull and unpleasent work. Similarly options up to and including a form of house arrest and seizure of assets would be possible. It's key to avoid putting these people in prison, but what's to say that we can't restrict the kind of work they can seek, restrict their freedom of motion, and seize assets?
3 - Prison/Execution: An option reserved only for violent criminals who represent a clear and present danger to society at large. These are individuals we simply can not afford to have on the streets.
The trick to this system is making sure that the teir two section is well executed and well administered. If people get the idea that it's a cakewalk it won't be effective. If utilized properly it can be just as effective as a minimum securiyt prison without any of the disadvantages. Moreover, it can allow retribution in kind for those white collar criminals that hurt so many people. Riches to Rags in the rap of gavel.
Re:Aha! (Score:2, Insightful)
And I bet if you looked at those 19 cases, you'd find that those kids had willingly and intentionally done some sick shit. 18 years is a guide, IMHO. If a 17 year old has the balls and brains to hack his Aunt Millie up and feed her into a wood chipper, well, he should get the same treatment as a 19 year old that did the same thing, don't you think?
That's one of my main problems with amnesty.org, they really don't seem to have a whole lot of common sense. They also seem to cling to the idea that criminals have more rights than their victims did.
Re:Aha! (Score:3, Insightful)
popping a tire
Not one but four, and it's not a big deal to you because you're the one who has to pay for it.
they probably became homeless when the developers paid off the city and took away their homes to build your condos.
Nice try, but these condos we built in 1986 on a vacant lot. And, BTW, this isn't some girl, but a 37 year old WHITE woman, so don't even try to play the race card.
Obviously this woman needed help, nice to know her neighbors that live in the same building would rather lock her up and take away her HOME instead of *gasp* trying to help her.
Several residents did talk to her, and the condo board repeatedly warned her before taking police and legal action.
Addiction of any sort is a sickness, not a crime, ask any doctor in the world if your too high and mighty to take an anonymous cowards word for it.
It may be an illness, but it was HER choice, not mine, for her to start using drugs, and therefore she is responsible for her own condition. HER choice. SHE chose to use the drugs. That's like saying I should pay for someone's lung cancer treatment because they chose to destroy their lungs by smoking for 40 years, or I should have to pay to keep someone plugged in who chose not to wear a helmet and smashed their brains out against a bridge pier and is now a vegetable. It's fucking ridiculous and, even if there are some who think that, yes, I should have to pay for the actions of idiots, just because you brought a medical condition upon yourself, it doesn't give you the right to commit crimes against other people. I don't even think you guys in Europe (or Canada, or wherever) are allowed to do that.
And BTW, I would be more than happy that some of my tax dollars went towards her cell because since she's gone there is NO CRIME HERE. Not a single incident.
I don't see you see the big picture... (Score:3, Insightful)
And what about that warm, fuzzy feeling feeling mercenaries call killing? I'm a pacifist, but I recognize the value in snuffing out an addict's existence. It's a good investment and our species' success is a testament to that survival strategy called killing off the weak.
More seriously, it does seem somewhat illogical to write-off the costs of treating millions of addicts as cheap while viewing the costs of treating thousands of criminal violence survivors as expensive.