Test for "Obvious" Patents Questioned 172
bulled writes "News.com is running a story about a case coming before the US Supreme Court on testing new patents for 'obviousness'. The decision has potential to significantly impact the High Tech industry." From the article: "Several Silicon Valley heavyweights, including Intel and Cisco Systems, have submitted supporting briefs that urge the Supreme Court to revise an earlier ruling. That ruling, they claim, has helped make it easier to obtain patents on seemingly 'obvious' combinations of pre-existing inventions."
Re:The issue is obviousness *before the fact* (Score:1, Insightful)
Hundreds of people submit patents that they know are not novel. Tell me the guy that patented the "Knork" [wikipedia.org] thought he was the first person to put a fork and knife together. Their genius is realizing that such stupid things can be patented.
Re:Why even allow any patents? (Score:2, Insightful)
That is exactly the point - a government enforced monopoly for a limited period of time. Without patents, any company could just come along and rip off your design, into which you poured time and money with R&D, and begin selling it, most likely undercutting you on the cost, since you are trying to make up your expenses.
The problem is not the idea of patents - in theory, at least to me, they seem like a decent and necessary idea. The problem is that not all industries are the same, and current patent law is outdated for the software industry. What we need is for legislators to wake up and realize that a one-law-fits-all approach does not work.
Test for "obvious" problem (Score:4, Insightful)
From the article: "Some say the lax rules have fueled the rise of patent speculators--disparagingly known as "patent trolls"--who make a living off predicting those incremental changes to existing high-tech inventions, landing patents and then going after companies for infringement."
This seems to be one of the real problems with the patent system: abuse. If you can predict the incremental changes to technology, then it suggests some kind of obviousness, no? Perhaps we need a "business reality check" test for patents: if you don't make a serious attempt to commercialize your patented idea with X number of years, then your patent dries up (or at least your potential damages are capped at Z number of dollars). The patent system should exist to protect ideas, not to line pockets with gold.
Re:The issue is obviousness *before the fact* (Score:3, Insightful)
Why not look at what patents are supposed to be? (Score:4, Insightful)
At the end of the day the real test of whether something should be patentable or not should be related to the reason patents were instituted in the first place...to incent investment in R&D by rewarding that investment in innovation. The reward, in the form of artificial protection from competition for a limited time, is enough to ensure the investor(s) profit from the investment. Obvious or not, if a company or individual has invested significant time/money in a program aimed at solving a problem and come up with a new and unique (even if obvious by hindsight) solution they should be rewarded not for the idea, but for the investment, thus incenting investment in innovation.
The fundamental problem with the patent system today is that it has been warped over the years into something it was not intended to be. Remember, the patent system is not something that has to exist; it is something that we as a society agree to have in order to incent individuals and companies to perform activities that are of benefit to society.
There appear to be two basic uses for the patent system that unfortunately are sometimes at odds with each other.
[Aside: When I worked for a large s/w company we were encouraged to regularly trawl through our developed code for potentially patentable algorithms, this is clearly a case of (2) not (1)]
Surely the only useful purpose for a patent system is to incent companies to make investments that would otherwise not have been made. If a company got a clear benefit from an investment and would continue to benefit whether granted a patent or not then there is no point in society (i.e. the rest of us) granting them a patent! What they have is a trade secret that should be protected by other laws (copyright?); it should not be a patentable innovation. Other companies should have the right to make a similar investment to develop a similar solution (or license the technology from the original company if that is agreeable and makes more economic sense)
Today, if a company has a trade secret that they feel they could make money off they typically have to patent the trade secret (even if only defensively) and then license it. This behaviour (licensing developed solutions) should be incented but not using the same system as that which incents investment in innovation.
So here is my strawman proposal...
Patent rewards (Score:2, Insightful)
The ultimate goal of a patent system is to benefit the society by encouraging invention. It does this by stimulating creative individuals. It seems that the individuals can now reap rewards, which are not proportionate to their inventions.
Let the potential reward for a patent should be, for example, at the maximum ten times the investment costs for the invention; after the inventor gets this amount of money, his patent becomes public domain.
So both for companies which invest in R&D, equipment, scientist salaries, etc, and the guy who thought of his knife+fork arrangement in his basement, their time and money are repaid tenfold - not a bad ROI, now?
The is (so far) mostly a US problem (Score:5, Insightful)
About 10 years ago I was asked to do patent reviews on a group of 10 patents which company A would like to use to sue company B:
Of those valid US patents, 4 were really, really obvious, i.e. more or less the only reasonable way to solve a particular problem. AFAIK this means that the patent is automatically invalid, right?
The next group of 4 all consisted of taking a standard textbook algorith, without _any_ additional tweaks, and implement it as a VLSI chip.
The final 2 patents actually covered somewhat neat ideas.
Terje
Re:The issue is obviousness *before the fact* (Score:3, Insightful)
Or maybe the first 10-100 people to think of it either thought it was so obvious that it wasn't worth trying to patent it or they wern't in the "patent everything" frame of mind. The problem with the issue of "obvious" is that it tends to be poorly documented...
Re:The issue is obviousness *before the fact* (Score:2, Insightful)
There's also the inverse procedure: everyone thinks something is obvious then comes One that says "it is not!" then patents it, despite the fact that he did not invent it and it is common practice or technology.
Am I the only one who remembers an attemp to patent the wheel [slashdot.org]?
Or Microsoft patenting desktop pager [slashdot.org] and XML [slashdot.org]?Most patents do not even come from the guy that invented the technology, funded research, or at least used it!
Re:The issue is obviousness *before the fact* (Score:3, Insightful)
Re:How about reforming patents all together... (Score:5, Insightful)
Actually, that's never been the stated purpose of patents. The government is not supposed to be in the business of enriching individual people or corporations, and they are well aware of it. The rationale for patents, as for any regulation, is to attempt to optimize the entire system. In the case of patents, by encouraging innovation. That's the party line, and pretty much every party around the world toes it.
There's a bit of a problem with it though. There is actually little to no real evidence of patents being beneficial to the economical system. For any technological discipline. On the contrary, there is plenty of evidence of it actually inhibiting progress in a number of areas, the most blatant case being software patents. Patents have become a tool for the large companies that are on top to stay on top, and not to have to actually compete on the merits of their products. The basic tenet in the belief of the beneficial nature of patents is the belief that progress moves along in giant leaps of imagination, or immensely costly research, that is so rare that it needs protecting. For the most part this is just not true. Progress is slow and gradual and constantly builds on existing solutions. Patents are not beneficial in such a system.
The most popular poster child argument for patent proponents is pharmaceutical companies. "If there were no patents, no drugs would be developed due to the great cost, and where would we be then?" they ask. This doesn't hold up under scrutiny though. Analysis of the higher cost of patent encumbered drugs and the research budget of drug companies will show you in no uncertain terms that the state could spend several times the amount of money that the pharmaceutical companies spend on research, and our society would still save money because the price gouging is so brutal on patent encumbered drugs. The state funding drug research itself would also bring with it the not inconsequential benefit of the ability to concentrate on beneficial drugs, rather than drugs that will make a profit.
There are actually few rational arguments for any sort of patents, and very substantial arguments against them. Overwhelming arguments in the case of software patents. However, the companies that profit the most from the oligopoly maintaining power of patents are among the most powerful legal entities, and lobbying groups, in the world. Just about everyone except for patent attorneys and mega-corporations with huge patent portfolios oppose software patents. In spite of this they almost got legalized in the EU, and the proponents of them are trying again from a different angle now. Frustrating to say the least.
Re:The issue is obviousness *before the fact* (Score:5, Insightful)
Patents are not about encouraging "innovative" ideas. They are not about rewarding research. They are about granting monopolies to people who grease enough palms. That was their original purpose, and that, beneath all the layers of bullshit, is still their purpose now. To grant monopoly; unrestricted, pure and total.
If you believe otherwise, then the marketo-psychic dominator troop have earned their pay today.
Re:How about getting rid of patents all together.. (Score:5, Insightful)
I would think that such patents should be reserved for seriously massive innovations, not navigating a menu or button placement ffs. As an example had Gary Kildall patented some of his (at the time) massive innovations, he might have been able to get a truly fair due, instead of being ripped off and left in the wake of vast corporations taking his work and making billions.
We're all very familiar with his work now, but back then he was pretty much the only guy doing a lot of the work.
Software patents are here to stay, but they're screwed up royally.
Re:The issue is obviousness *before the fact* (Score:2, Insightful)
1. A simple (or complicated) way that works in solving some problem or is useful in some way, e.g. Metal wrapping for batteries.
2. An obvious amalgam of earlier inventions, that does not really solve any problems, e.g. knork (which is just a modified http://en.wikipedia.org/wiki/Pastry_fork [wikipedia.org] anyway )
3. A relatively simple idea (often a rip-off of earlier ideas) wrapped in obscurity just to make it open enough to make everyone cough up some money for using it. E.g. "Click to buy"
4. etc...
To me - only category 1 is "inventions", and to me, only "inventions" are patentable.
Most software patents mentioned on
Re:The issue is obviousness *before the fact* (Score:5, Insightful)
Re:How about reforming patents all together... (Score:2, Insightful)
Re:The issue is obviousness *before the fact* (Score:3, Insightful)
Copyright and patents don't offer the same type of protection, so saying algorithms are adequately protected by copyright isn't really accurate. For example, if someone copyrighted their MP3-encoding code, and I got my hands on it, I could implement the same algorithm in a totally different language, and it wouldn't be violating their copyright. Copyright protects a particular instance of a program, a patent protects the general principle. At the moment, there are implementational problems with both systems (insufficient obvious-testing for patents, infinite extensions for copyrights), but I don't see any fundamental reason why an algorithm should be treated differently from a physical invention, as long as it is sufficiently innovative, sufficiently non-obvious, and a working example is provided.
How about getting rid of IP altogether?. (Score:3, Insightful)
How rich is a person supposed to be able to get for having a good idea?
Same thing with copyright.
If you think that would hurt innovation, you are underestimating humanity to your own peril.
Re:How about reforming patents all together... (Score:5, Insightful)
If no patents existed, everything would become a "trade secret". Essentially, every factory would become a Willy Wonka factory, where no one knows how a product is created - it just pops out. Key technologies could be lost if a person dies or a factory burns down.
Second, maybe I'm too cynical, but I see zero evidence that a government body could do as good a job with drug development as the free market. There are many, many failed drug companies - they took a risk on a new technology and failed. Politicians would be under fire for "wasting" money if they went down this path, and so government drug development would proceed down the safest path, where the employees and politicians would be as concerned about covering their asses as anything else. Not to mention that government departments tend to be chronically underfunded, full of corruption and nepotism, and very slow to react.
I think that there needs to be an additional test for a patent: would it become a trade secret if it weren't disclosed in a patent? This would allow a novel manufacturing process to be patented (even the software controls!), but would prevent things like Amazon one-click. Presumably, Amazon would have done the one-click thing with or without a patent system... so why should they get the protection? How does society benefit? Many of these software patents are asinine because they are right out there in plain view, and there is ample incentive for the companies to do them without the patent system. Apple's "look and feel" is a prime example. Does anyone argue that Apple now spends less time on look and feel since Microsoft won that case?
Re:The issue is obviousness *before the fact* (Score:1, Insightful)
If you implemented it from scratch from a mathematical description of the procedure, it should be fair game, irregardless of language.
The mathematical algorithm can't be patented. That should imply that you can freely encode mp3 with a blackboard and a lot of spare time. Thus you should also be able to do the calculation with a straight-forward implementation on a computer.
Re:How about reforming patents all together... (Score:3, Insightful)
Once that first product 'pops out', reverse engineering kicks in. Take the 3M approach - they know their product will be copied so aim to be first and fasted to market to make their cash quickly by being innovative ahead of their competition. This gives the OEM a window in which to maximize their sales/profits, and promotes competition and technical innovation.
Re:How about reforming patents all together... (Score:5, Insightful)
Re:How about reforming patents all together... (Score:3, Insightful)
Actually, that's never been the stated purpose of patents.
Nor does it need to be for it to reflect how they work.
The government is not supposed to be in the business of enriching individual people or corporations, and they are well aware of it. The rationale for patents, as for any regulation, is to attempt to optimize the entire system. In the case of patents, by encouraging innovation. That's the party line, and pretty much every party around the world toes it.
The point of a patent is to impose artificial scarcity and hence increase an invention's value. Note that the "invention" is distinct from the ensuing "products".
As soon as you take money out of the equation, however, patents are pointless. Ie: it's all about the bottom line.
There are actually few rational arguments for any sort of patents, and very substantial arguments against them.
The rational argument for patents is the same as the one for copyright - that there is no (known) better way to create value where it would not otherwise exist (ie: in the face of infinite supply). Patents in the real world are much less of a problem, however, because they are opt-in. There _is_ the significant flaw in contemporary times that patenting things is *way* too easy, and that some things which should not be patentable, are (your example: software), but that largely a flaw in the execution, rather than the concept.
Re:The issue is obviousness *before the fact* (Score:3, Insightful)
The alternative to patents is not complete freedom of information, it's utter and complete secrecy. Companies would spend a fortune obfuscating their own code, and doing everything they could to prevent reverse engineering. You'd have to sign a hundred NDA's in order to get a contract to refill a soda machine at a big company.
Not exactly a desirable course of events.