Patents of Business Destruction 171
SnapShot writes "Over on Slate there's an opinion article on the Blackberry patent case. Here's a quote: 'It's easy to bash trolls as evil extortionists, to do so may be to miss an important lesson: Patent trolls aren't evil, but rational and predictable, akin to the mold that eventually grows on rotten meat. They're useful for understanding how the world of software patent got to where it is and what might be done to fix it.' "
Re:I wonder how the trolls think, reading this. :) (Score:3, Insightful)
However out of control mold can reek havoc and can turn your house into a toxic zone. Patent holding companies may infact make it so it is risky to do any kind of technology and to get licenses to do so will make startups much more expensive. If you look at google, if the kids there had to pay license fee to some patent company to take their search engine to the public, would they be here today. Probably not.
Re:How to fix it? (Score:5, Insightful)
Almost there (Score:5, Insightful)
Re:Expect the worst (Score:5, Insightful)
This (IMHO) is a downfall of capitalism - businesses no longer compete by making a better product, they compete by leveraging laws and other details against any existing and would-be competitors. If you can manipulate the rules, you do not have to play as hard.
Fix it? (Score:4, Insightful)
Stop handing out "business method" patents (Score:4, Insightful)
"For most of U.S. history, patents had traditionally been issued in tangible objects, like monkey wrenches. For years, the courts and the PTO took a hard line against granting patents on intangibles like software or "business methods," based perhaps on the instinct that such inventions are too abstract and might cause economic damage.
All that changed in the 1980s and '90s, when Congress concentrated patent's appellate duties in a single court--the Court of Appeals for the Federal Circuit. Over time, that court changed course on software and other questionable areas of patent, transforming the system from one that was highly conservative to one that's much more liberal."
I sincerely think we must abolish all patents on "ideas" and "methods". The whole notion of a corporation patenting a way to do business seems absurd and completely against the notion of free market competition. At the rate that we're going, pretty soon we'll have a stage where any person wanting to start a new business will need to purchase a set of licenses from corporations, not counties/states!
Another thought would be about how to resolve the multiple patent regimes around the world. As the Internet and globalization break down geographical barriers, we need a patent system(if at all) that will serve the entire world. What happens if a person in China or Brazil originally comes up with an idea for a new business? Will he need to check with the USPTO to see if it has been registered in the US? In Europe? Why? Does the USPTO check patent histories in other countries?
Everything is potentially 'Useful' (Score:4, Insightful)
Just like Viruses, Worms & Malware are useful for Anti-Virus/Spyware companies to analyze how they got to where they are, and what might be done to fix them.
Guns don't kill people... (Score:2, Insightful)
Nope. Blame here isn't mutually exclusive or singularly exhaustive. They're all crap.
Just like ISPs, CAN-SPAM and spammers themselves are all to blame for the 50+ messages I have to clear out of my inbox every morning.
A case study in business, law, and government... (Score:2, Insightful)
Throw into this mix patent squatters (think of it this way: some folks buy internet domain names (that are company/product/identifiable names) not for themselves or for their own uses, but to hope that someday, some company will pay large sums for the privilege of having the given domain name - now apply that idea to patents). In addition to patent squatters, there are true trolls - the folks that patent ideas that they can't even hope to produce or innovate.
What's the solution? I don't know that there is a simple solution at all. Market forces, billions (trillions?) in investments and in speculation are at stake, as well as jobs, ideas, and growth of economies. The one thing I do know for sure is that reform often hurts, but is usually worth it. Perhaps concentrated analysis from all interested parties and establishment of simplified patent rules? I wish I had the answer.
Too many shyster opportunists (Score:5, Insightful)
I know a guy that has made a fortune taking trademarks and copyrights filed locally only in Canada or the US and filing them in his name globally. If that local, Canadian or US company wants to go global, they have to pay this guy royalties for using their own name.
It may be sneaky and underhanded but its totally within the law.
Same goes for patent trolls or squatters. Come up with our buy some idea that today might seem far-fetched, keep the language ambiguous and generalized, and as soon as some other company actually makes a product with similar function or purpose a reality, jump on them and sue the pants off of them.
There are entire companies set up that buy and hold patents. Buying them off individuals and small companies and simply sitting on them, with a large team of shysters paid scouring patent applications and product releases hoping that some company might make a product that infringes on the patents they hold. These companies (contrary to what they might have you believe) are not think tanks nor do any research and development nor have any interest in making the ideas a reality. They simply sit on paper. It's entirely legal for a company to do nothing, let another company do all the work, and expect royalties or licensing fees to sell a product they actually spent time and money developing, or sue the pants off these companies. Its like corporate slavery.
Patents have been twisted and corrupted from something to protect innovators from having their ideas ripped off to one that penalizes innovators for having good ideas and spending the time and money and effort to make an idea a reality.
Patents have become a dirty word.
There needs to be changes imposed, period. Patent law needs to be rewritten, not just for software, but in all cases. This isn't happening fast enough.
Missed the point as usual (Score:3, Insightful)
Re:Expect the worst (Score:2, Insightful)
The thing to keep in mind is to focus on minimizing the downside. If, after lots of trying, you can't make for a reasonable downside and still make patents attractive to use, then perhaps pantents aren't the right tool for the problems we're trying to solve.
Working in Pharma? (Score:3, Insightful)
Drug companies launch ad campaigns where they try to justify their high prices (that lock people out) by stating that today's profits drive tomorrow's innovations. But if the high drug prices are simply to provide for tomorrow's R&D, then why do they show a $Billion in profit: By definition that money should either be a decrease in drug costs, or should have been spent on r&d
So there remains a very real question: Do patents really work in the drug business? I'm not sure that they don't promote innovation, but I'm sure that they generate monopoly profits. So, while that might be taken to mean that they're working, it can also be taken to mean that some reform might not be a bad idea there either...
Re:Expect the worst (Score:4, Insightful)
patents were a result of trying to protect innovators and exploration of progress
Not exactly. And it's worth understanding the purpose of patents when trying to think about how the system can be fixed.
The purpose of patents was to promote progress by encouraging inventors to publish the details of their inventions. In a world without patents, inventors had a strong motivation to keep the workings of their inventions (which were physical devices) as secret as possible, so that others couldn't duplicate them. The notion of patents was introduced to open up (the word 'patent' derives from the latin 'patere', which means "to be open", and scientific and medical communities still use the term to mean "open", or "free of obstruction") the details of inventions so that others could learn from and build on the ideas. Inventors recieve a temporary monopoly on their idea in exchange for publishing the details. The bottom line, though is that patents are supposed to primarily benefit the public, not patent holders. Any patent regime that fails that test is broken. The ideal patent structure is that which generates the greatest flow of ideas to the public, and it should be obvious that this optimization problem is one that requires constant retuning as the structure of society and the nature of research changes.
The same is true of copyright, by the way. Copyrights should primarily benefit the public, in the form of increased flow of materials into the public domain. Any benefits that accrue to copyright holders are mere byproducts of the primary goal. Like patents, copyrights require constant tuning to ensure that they're providing the maximum benefit to society. Like patents, the current copyright system does nothing of the sort.
Re:How to fix it? (Score:2, Insightful)
Ok, I'm down with that. Even a mostly funcitonal prototype that implements the core claims of the patent. The prototype should even be kept for the duration of the patent so that subsequent court challenges have something to compare to.
Annul any unworked patents after two years
Doesn't the functional prototype kind of invalidate this? If they must demonstarte a prototype, the patent has therefore been worked? Or is this an alternative to the functional prototype - have a working model available within 2 years?
Pay a bounty for evidence of prior art
What is this Slashdot obsession with bounties? Haven't we learned yet that these idiotic financial incentives are what get us into trouble in the first place? How about we get the courts to be more open minded about what constitutes prior art as well as applying the proper standard for obviousness.
No patents on mathematics
Why do you hate math so? Someone spends months or years finding a really good way to factor very large numbers, doesn't that deserve a reward of some sort? It's bad enough that the Nobels don't reward math. I think we can keep an open mind about what constitutes an invention. That said, I really wouldn't expect to see much pure math come about that was patentable, however, a lot of inventions are based upon mathematical insights that most people wouldn't see.
Re:How to fix it? (Score:4, Insightful)
along with that is the problem that it's not really appropriate any more to enforce one length for all patents. even just in "computers", for example, 5 years sounds about right for new technologies in chip manufacture, but is an eternity in software design.
separate from this but related on several points is the fact that the current patent process is not transparent. that is, i can submit a patent that you have no way of knowing about - and thus knowing you're infringing - for up to a few years. that's plenty of time to build an entire business today. ideally, patents should be visible from date of filing.
i'd also agree with the common complaint on patents on mathematics, on the principle that they are naturally occurring phenomenon, not true inventions. this eliminates a good number of software patents but still leaves room for truly novel activities. having to choose all or none, i'd back the "no software patents" position, because doing real evaluations of that class of patents is hard and costly, and it's worse for innovation - at least today, if not always - to grant too many than too few.
the most important thing people need to remember, and most of the involved government seems to have forgotten, is what the point of patents are. the constitution is often silent on intent; this is one of the few cases where it actually tells us why it's doing what it's doing. patents exist explicitly to "to promote the progress of science and useful arts".
honestly, i think we need somebody with lots of free time and discretionary income to make a big fuss about this. i believe the current PTO policies are unconstitutional and violate existing Supreme Court findings (see, for example, Diamond v. Diehr, 450 U.S. 175, which excluded patents on "laws of nature, physical phenomena, and abstract ideas").
for point of reference, one of my current responsibilities is working on our company's IP portfolio. i'm quite familiar with the current rules. they're stupid, but in order to remain competitive companies are often forced (by the market, not legally) to play by them. it's unrealistic to expect companies (or individual filers) to simply "do the right thing" with regard to what they're filing, or even to have any idea how to evaluate that.
dual perspectives (Score:2, Insightful)
The whole concept of creativity has been crushed by this red tape jungle. I think that if a company makes a product on their own, and its kick ass, let it ride. However, if a company steals an idea intentionally (note the intentionally) then they should be beat with a copper pipe, baseball bat, and motorcyle chain.
I just do not believe the government should ever be able to regulate creativity.
-dan
http://www.ChooseDan.com [choosedan.com]
Re:There is nothing wrong with the 'patent troll' (Score:3, Insightful)
There is a reason Microsoft and Ebay didnt license the patents, and then just payed out on them when challenged. Its because this is just the way you have to deal with the patent system with its millions of potential infringements waiting for your lawyers attention.
You cannot build a non-trivial peice of software without falling foul of a load of something obvious - on a computer patents like one-click or the infinite subtle variations on LZ compression. So the only way to actually get anything built at all is to ignore the whole thing and let the lawyers sort it out later.
The only difference between these two (Microsoft and Ebay) and smaller companies is that they can afford to pay up, whereas a smaller company will end up going bust. Someone like RIM is probably on the threshold of being big enough to survive the patent shark pool and will splash about a bit before getting eaten.
Re:Funny definition of useful (Score:3, Insightful)
But they are good for that, in the most dramatic and cruel way possible. It's just that society, in general, tends to ignore the education drunk drivers give us. We treat the symptom (drunk folks killing innocents on the highway) but we ignore the causes. (pervasive availability of alcohol, inherent danger of controlling a mass of metal at high velocities.)
And we also tacitly accept the risk and sacrifice...until it happens to us personally.