Congress Tackles Patent Reform 261
nadamsieee writes "Wired's Luke O'Brian recently reported about Congress' latest attempt to reform the patent system. In the article O'Brian tells of how 'witnesses at Thursday's hearing painted a bleak picture of that system. Adam Jaffe, a Brandeis University professor and author of a book on the subject, described the system as 'out of whack.' Instead of 'the engine of innovation,' the patent has become 'the sand in the gears,' he said, citing widespread fears of litigation. The House Oversight Committee website has more details. How would you fix the patent system?"
If congress is getting into it... (Score:5, Insightful)
"Fixing" the Patent System? (Score:4, Insightful)
This issue, along with IP, Copyrighting, and DRM should ideally be tackled all at once. However, given that both Republicans and Democrats regularly side with big business, I would expect no change whatsoever to open up competition and innovation.
How would you fix the patent system? (Score:1, Insightful)
Where to start.. (Score:5, Insightful)
Along with better criteria for awarding patents, there should be penalties for people who flood the PO with lots of stuff, hoping that something will stick. Make there be a sizeable penalty for submitting patents that gets rejected. Give a person/corporation a few freebies, a couple per year that can get rejected with no penalty, just to protect the little guys who aren't quite aware of what they're getting themselves into.
And don't make the patent office earn their budget through the number patents they grant. That's like funding a police department purely on how many crimes they solve per year, when we'd rather they find ways to prevent the crimes in the first place.
Re:How would you fix the patent system? (Score:3, Insightful)
Re:slashdot feedback (Score:5, Insightful)
Things are easy to understand or figure an answer for some types of patents, but others present a much larger issue(s) with regard to patents. Does anyone remember how the recent cancer treatment was treated in the news because it couldn't be patented? Patents are driving businesses in directions that are not in the interest of the community. Peer review might well stop the onslaught of stupid patents leaving more room in the business roster for developing things that can't be patented in order to simply make some money and take bragging rights.
The current patent system has 'frozen' the business community into a position where many won't invent or improve if it can't be protected by patents. This destroys the value of patents rather than protects them. Company A may have patented an invention... fine. Now if company B wants to innovate on their products, they will have to fight company A's patent or take their chances in court. This is due to company A being given a stupid patent on obvious technological furtherance of prior technology.
Peer review would help to bring sense to this situation, even if at first it brings confusion IMO.
My quick fix... (Score:5, Insightful)
Prohibit people from suing private citizens for patent infringement - or at least limit the damages/legal costs for them.
Make with-holding prior-art from the examiner an offense; have the people sign an affidavit or something, and enforce it.
Have a higher burden of proof for the non-obviousness. Have the people that apply show to the examiner how their idea is different from what's out there.
No patents on business methods, algorithms, living organisms and such. This is ridiculous and got out of whack due to some messed up court ruling ("anything useful under the sun [] should be patentable"). Make a law to reserse said court ruling.
Maybe a public review period where prior art can be submitted to the examiner?
More examiners. I read somewhere that they have only about an hour or so to search for prior art, due to the small number of examiners the USPTO has.
Limit what can be patented (Score:3, Insightful)
Engine of innovation...my ass (Score:5, Insightful)
The moment you work for a company that develops inventions and you meet their IP lawyer they tell you "if we knowingly violate someone else's patent then we're fined three times as much as if we didn't know. So under no circumstances read anyone else's patents.". So the whole thing is a complete scam and everyone involved is complicit. How come it needs a professor to say what everyone who works in IP has always known?
Re:How would you fix the patent system? (Score:4, Insightful)
Re:How would you fix the patent system? (Score:4, Insightful)
Re:How would you fix the patent system? (Score:2, Insightful)
Abolish the penalty for looking (Score:5, Insightful)
Related, allow a patent search that meets some reasonable criteria (e.g. done via the patent office) to be a defense against infringement.
Allow economic damages only. If you're not trying to get money out of your patent then you shouldn't get money out of infringers.
Patent office should keep some engineers, or maybe 10-year-olds, on staff. When an application comes in, these people are asked "how would you solve the underlying problem?" If they come up with the same answer as the patent application within a day, the application is thrown out for obviousness.
Not gonna happen (Score:4, Insightful)
How to fix it? Easy. Patent THINGS. (Score:5, Insightful)
Easy. Stop allowing patents for concepts, knowledge, ideas, methods, algorithms, etc.; and allow them only for things. Ideas are easy; it's implementation, marketable products, that are hard, and worthy of economic protections.
Patents are founded upon the concept that we all benefit as a society when those who develop products that make our lives better and/or easier are given a chance to benefit financially from those products, and hence have an incentive to undertake the often difficult development and production of them in the first place. Allowing patents on ideas, etc. has no such benefit, other than for the patent holder.
Hey, if I was a smart guy, I could sit around in my underwear, simply thinking up ideas and filing patents on those ideas, and possibly end up very rich someday; but what have I provided society as a whole? Squat. Less than squat, in fact, if I use my patent to club someone who decides to actually bring my idea to fruition, preventing, deterring or delaying that idea from implementation.
Which is exactly what's happening under the current system: anyone who actually wants to create a product, whether it's a next-generation power source, a ginchy playtoy, or a cure for cancer, first has to evaluate the risk of some "submarine patent" held by some patent troll robbing them of the fruits of their work -- the real work, that of actual implementation.
-- Thomas Edison
Quit letting lawyers and speculators control the 1%, and set the 99% free.
Eliminate patents on... (Score:3, Insightful)
Barring that: Consider "doing X with a computer" - where doing X without a computer is a well-known process and the computerization is a straghtforward analog - to automatically be "obvious to a practitioner of the art", and unpatentable in it own right. (If "doing X without a computer" is patented, of course, "doing X on a computer" would similarly be "doing X" and
Software doesn't need patent protection.
- Copyright (even absent the crazy extensions in the last few decades) is adequate to avoid direct copying.
- The the time needed for the competition to recognize a profitable product, reverse-engineer it, write a replacement, and bring it to marketability is adequate to let innovators recover their investment plus profit and establish themselves in the market niche they create.
Most "business methods" have similar characteristics regarding payback of development costs. Further: Patenting them is so fundamentally anti-competitive that it makes no economic sense.
Keep patents restricted to things like physical inventions, manufacturing processes, drugs, and the like, which do have a big development cost that needs a significant time to recover.
Limit total # of patents (Score:2, Insightful)
Once you've got a strict limit on total # of patents valid (making them a fairly rare resource), then you can use a competitive process to play off the merits of each potential patent against each other, and to leave only the best ones valid. An obvious way to do that is to hold an auction: allow anyone to submit patent applications for each patent "slot" which becomes available, and allow everyone to bid on all of the patent applications. Whoever has the highest bid will have the patent application that they were bidding on become valid, and they will get all the rights that a patent owner usually gets.
Patent "slots" will become available either due to expiration, or being thrown out due to the usual obviousness or prior art criteria. This means that each bidder will have to perform extensive due diligence on anything they bid on, since they can potentially waste a lot of money if they buy ownership of a patent & then have it thrown out.
To make things a lot more interesting for the "small" innovators, all of the money that was paid by a bidder to win ownership of a patent, should go to the submitter of that patent. It's a big win-win for society: small innovators can win a big jackpot (and have a big incentive to contribute a steady stream of new ideas), and the people who end up purchasing ownership of the ideas are exactly the kind of people who have the resources to take fully exploit them. (You just have to make sure that bidder & the submitter aren't the same people, otherwise the auction idea breaks down).
Re:How would you fix the patent system? (Score:4, Insightful)
Re:How would you fix the patent system? (Score:3, Insightful)
Unfortunately, most people aren't wealthy enough to take this option. For most independent inventors, the choice comes down to
1. Spend a year developing an invention, while rapidly going into debt, and hope that at the end of the year it will possible to patent the invention and pay off the year's expenses, or
2. Forget about building a better mousetrap, and get a normal job instead.
Aside from a very small subset of the population (tenured professors and the independently wealthy), financial imperatives limit the ability of people to innovate unless there is some form of payoff available at the end.
Re:Where to start.. (Score:1, Insightful)
Eliminate all patents on what, instead of how. This includes business patents, and patents on discoveries (like genes and naturally occurring compounds) rather than inventions (like processes to artificially manufacture naturally occurring compounds).
Require all patents to be available for license under RAND (reasonable and non-discriminatory) terms. Of course, RAND would vary by sector/product, and would have to be determined in court, but this would allow companies to recoup the cost of their investments without using patents for blatantly anti-competitive means.
Decrease the term of patents to 10 years. The exception being drug patents, where an extension of 5 years from the date of FDA approval is given to the company who funded the approval process. This is necessary as our regulations make drug approval a time-consuming process (not an entirely bad thing). This 5 year patent would also be available for drugs where there the original patent expired or there was never an original patent. This is to create an incentive for companies to go through the approval process for non-patentable cures.
If you decrease the patent term and, it is too expensive and time-consuming to approve all patents up front, eliminate the concept of granting a patent, and instead just register the patent claims after a minimal check against the existing patent registry. Then have a mandatory in-depth patent review for the small number of patents that actually go to court, which includes an open comment period to solicit prior art and arguments about novelty from industry and academia. Also allow people (in particular publicly-funded researchers) to file non-patent claims, which are registered just like patent claims.
Do something about publicly funded research becoming patented. I know this is not an easy issue, and will never be completely solvable without killing the vital exchange between industry and academia, but there has to be a better balance then what we have now.
Patents are inherently powerful in that they give the holder control over not just the fruits of their own labor, as with copyright, but over everyone else who might have similar independent ideas. As such it is very important that the ideas granted protection be clearly novel, however I know of no objective way of determining this. For that reason, I don't know if it is even possible to have a "good" patent system. However, these are some ideas that might be worth considering.
Darn, I wish I could remember my slashdot password right now.
Re:How would you fix the patent system? (Score:3, Insightful)
Exactly, and having no patents will just make it even more of an arms race. Companies will
be forced to innovate constantly to survive. Getting rid of patents would be a huge win
for innovation and advances in technology.
Re:My quick fix... (Score:3, Insightful)
But then if I can't afford to produce the product, I'm not going to be offered what it is worth, because anyone can copy the product and I cannot retaliate.
Of course, the corollary is that I can sell my prototype, then I can claim that the other business has taken over the market for my patented invention so even if I wanted to I couldn't run a business that produced the products based on it.
So basically this is just silly.
Re:How would you fix the patent system? (Score:3, Insightful)
Well, I don't know if it would be that much better. I suspect that the total effect of patents on innovation is very small. A mind experiment, if you will: AMD vs. Intel, no patents. What are they going to do? Agree to stop innovating and dismantle their R&D departments? The very next day all researchers will be re-hired in China to design a better, cheaper CPU.
If you let researchers go, you cannot really catch up to your new rival, because you do not have anyone who understands the technology anymore. But if you keep your R&D staffed, you could as well make them innovate!
Re:"Fixing" the Patent System? (Score:3, Insightful)
These people have spent most of their adult lives, in the pursuit of power. The concept of: "the best thing they can do to help, is get out of the way." is near impossible for them to understand. We don't need legistators to make more laws, we need them to clean out the bloatware that is our legal system. 50% of the time congress is in session, the focus should be on removing old defunct laws/programs/bureaus.
How to make the patent system self-regulating (Score:4, Insightful)
The following addresses the US patent system, which for all its myriad faults, is in many ways the best in the world (at least as far as creating incentives for progress.) I don't address foreign patent systems here because, 1) I don't know them well, and 2) the ones that I do know a bit about all too often serve only the interests of large corporations with deep pockets.
How to Fix Patents Easily ("Dub Dublin's Proposal for Patent Reform"):
Part One: Instead of the current fixed length term of patents (20 years, in the US), make the term of patents adjustable on a sliding scale that is inversely proportional to the number of patents *issued* in that category in the trailing twelve months.
Part Two: Keep the reasonable cost of patent filings, but after a relatively low threshold of filings (say, 50 or so), make subsequent filing fees rapidly accelerate with the number of patent applications filed (also figured over the trailing twelve months). This has many benefits:
Re:slashdot feedback (Score:4, Insightful)
The first concern is time. A peer review period will increase the time it takes to get a patent. The USPTO already has a huge backlog of applications, and the average time to get a patent is two years. Increasing the wait time further would both increase the backlog and delays, which in turn would disincentivize people from applying for patents.
The second concern I have is ensuring fair peer review. The main problem with peer review is the significant risk that peers will abuse the nonobviousness requirement when judging a patent application.
First there is the problem of hindsight. Many improvements seem obvious with the benefit of hindsight. For example its very easy to sit back now and say that pipelined architecture CPU's were an obvious evolution from single instruction execution architectures, but that would be ignoring all of the time and effort put into designing and building one. An invention has two parts, the conception of the idea, and its reduction to a working model. A patent should reward both and the effort put into the latter is often lost in hindsight.
The second big issue I have is in the potential for peers to abuse the review process to deny patents specifically for commercial gain. If IBM, AMD, and Intel were in an arms race to invent some new processor technology and AMD built it first, should IBM and Intel be able to protest the nonobviousness of the invention merely because they were also developing it, but failed to come up with a working model? Or for that matter, would a company be willing to risk publicizing their invention through the patent process if it were likely to be struck down on peer review? They would be better off keeping it secret (if possible) and trying to utilize it secretly in order to recoup their investment. Part of the benefit of patent laws is that society gets the benefit of knowledge entering the public domain after the patent period expires. I'm not sure a system that potentially encourages secrecy of knowledge is in the best interest of society.
kill the whole patent shenannigans (Score:3, Insightful)
The whole patent farce has long since past its use-by date so let's just terminate it by repealling these unjust laws and treaties.
It was created to boost invention and innovation, by giving a defined monopoly for a set period in exchange for the publication of pretty precise specifications of the invention. It did what it was supposed to do for quite a few years, while the things patented were relatively simple manufactured objects. That was then, now the patent system gives the inventor an absolute monopoly for a set - imho excessively long - duration in return for the publication of totally obfuscated plans. Thus, in effect, depriving society as a whole from full exploitation of the ideas behind the patent for 20 years. Two items which come to mind immediately are the cavity magnetron, as used in microwave ovens, and xerographic copying. Neither of these really flourished until the original patents ran out. I'm sure there are 'hundreds', i.e. millions, of similar examples. I believe that commercial success from the implementation of ideas should stand on on its own. In my not so humble opinion it's morally wrong for the State to prevent improvement of manufactured things by competitors, but that is what is happening now-a-days. In practice patents make it impossible to make a better mousetrap. While that's merely wrong, using trade treaties to impose the whole crooked and corrupt mess on other societies, well that's just Satanic. But that's what is happening today and is the root reason why the US is seemingly loathed by the second and third tiers of the world's population. To put it simply, that's what caused 9/11. Now, USA: Please fix it and rejoin the Family of Nations.
Re:slashdot feedback (Score:3, Insightful)
And above all, no "one click" business process patents.
If you're one of those people who're on the fence about software patents and think they should kept, then drop the term to seven years or so. Considering how fast the computer and software field move, seven years is a lifetime.
Re:slashdot feedback (Score:2, Insightful)
How about if a company can't get a working product out in a decent amount of time (either by themselves or through a partnership with another company which pays licensing), then the patent is terminated.
However, if there is actually a product on the market, they are allowed to keep the patent longer. You could even add incentives for competition by allowing patent lengths to grow proportionally to the number of different companies with products using the patent.
There are thousands of ways to improve the patent system, some of them more unnecessarily complicated than others. The REAL trick is finding one that the large patent holding corporations will actually support (or at least let pass through congress).
YES! Fix it by killing it (Score:3, Insightful)
Thank you, and thank God somebody said that. The patent system has never worked, not even in the age of steam engines, where better designs were held back over a decade. Not even in the industrial era where patents became such a mess, they had to make "interface" patents illegal to keep the whole factory system from falling apart. Not even with Edison, the later years of his life wasting away on patent lawsuits. One of the engineers who created CDMA nearly quit electronics in disgust because of patents (even though they made him a millionaire). Not even when they last reformed them by creating a patent court, which made the problem worse because now they gained legitimacy by empowering patents. Patents with AIDS drugs are murderous, it is outrageous that African nations were sued in the world court not to use Indian made generics while over a million people died. It is outrageous that air-bags and anti-lock breaks were held back 20 years. HEY! 40,000 people die per year in auto accidents in the US alone. Patents are probably responsible for the murder of more US citizens than WWI, WWII, Vietnam, and the war on terror combined. Clinging to patents like this is not rational behavior, it's like those people who saw all the evil of the slave plantation system and said "well, it only needs reform". Another fradulent property right - how ironic.
Just how many people are we willing to murder for the sake of patents anyhow. Don't answer that question lightly, because it will probably come true.
Abolish it (Score:4, Insightful)
Or, more succinctly, all solutions are obvious in the context of the problem.
Re:slashdot feedback (Score:3, Insightful)
Personally, I think the whole system has to be scrapped and replaced with a mediated non-monopoly system. Give the patent office a budget. Have them pay out the incentives, and gather statistics on patents used (ie, instead of the current system where you pay the patent holder, you merely report your product is using the patent, and the patent office pays out to the holder). The whole litigation and conflict issue is removed in one strike. There is no longer any reason to _not_ use patented inventions, nor is there any reason to fail to report your use (and any failure can be assumed to be an honest mistake as it doesnt actually cost you anything).
This would in turn would result in the patenting outfits being more geared towards being pure R&D outfits; they would no longer have to carry the weight of litigation, and organizations that are actually _good_ at the business of business (ie, producing, marketing and distributing) could pick and choose the most useful end products.
Next benefit, as the system is budgeted and has to be fully finananced, the patent holders have a much more obvious interest in not having an unbalanced amount of patents granted; each holders payout would have to be scaled down the more (widely used) patents are granted. Further, the system could (not that it would have to) be tuned to pay out more useful levels of incentives, to keep _more_ people gainfully paid for R&D, (especially since it would no longer have to finance legal, administrative and marketing organization). It would also suddenly fall within the realm of researchable and analysable economics; this amount of budget gives this amount of research, and doesnt actually hinder other research, ie, no more making up numbers of the top of patent lobbyists heads.
Such a restructuring also carries a huge further benefit; new and supposedly improved products would no longer carry a further innovation cost and the improvements would be adopted in the economy much, much faster (see, for example, the benefits of having new drugs or more environmentally friendly energy systems be cheaper than their older counterparts).
The most difficult part of such a reform is deciding how to finance it. The fundamental key to solving that issue is by realizing we're already paying for it, so the economy is already taxed by the system, even tho it's hidden. Some costs are less hidden like high costs we're paying for medicines, but we're also paying through other products being more expensive, which in turn makes local industry and labour more costly. We're paying through expensive litigation which makes us less competetive.
Once you realize we're already paying for the current system it's just a question of choosing a better method of paying for it, and selecting a level of financing more in line with a justifiable budget. Personally, I'd tend to be partial to a generalized innovation VAT of a percent or two, as that's closest to where we see the costs today. Preferably modulated in a way to put disincentives on products we _dont_ want and incentives on products we _do_ want (ie, you might even give newer more efficient items an exemption (as per their use of newer patented methods) for a year or two to even further incentivize their adoption in the economy, thus speeding up development).