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?"
Require source code as enablement (Score:5, Interesting)
This gives us several benefits: 1) it's more analogous to a physical invention where all the parts have to be described in detail; 2) the source code to enable an invention would be free and public knowledge at the expiration of the patent; and 3) it's useful for others to understand exactly what the inventor is trying to claim as part of his patent. The public would benefit from a better description of the invention, competitors could determine exactly what a patent is supposed to do, and the patentor would not have to face the specter of business method or software patents being eliminated in their entirety (which I'm sure more than a few people will call for).
Two changes (Score:5, Interesting)
But courts still defer to the patent office unless the case is unambiguously bogus.
Move to something more like the copyright system, where having a copyright issued only proves that you had a claim as of a certain date and that your paperwork was in order.
The burden of proof would then be shifted to the patent holder to prove that their patent was valid as part of an infringement lawsuit, back where it belongs.
2. Get rid of or at least weaken submarine patents. The obvious way to do this is to make it so that no damages can be collected for actions before the patent holder files an infringement lawsuit.
Ideas (Score:5, Interesting)
FOSS and Four Rules (Score:3, Interesting)
For commercial interes patents, this is what I'd do:
1) Patent gives grantee a monopoly for three years, then it expires and becomes public domain. You've got three years to make your killing, then you have to compete on a level field.
2) Be stricter about giving them out - patent really has to be for something professionals of the field hadn't already thought of.
3) Make it easier to challenge patents; if a challenger can produce prior art, patent is immediately voided, and grantee is barred from applying for new patents for ten years. If grantee had won any civil judgments regarding the patent while it was in force, any monetary judgments must be completely refunded, along with losers' legal fees.
4) No patents may be granted that could prevent other entities from implementing official industry (IEEE, IETF, ASME, NIST,
Re:How would you fix the patent system? (Score:2, Interesting)
Aren't we all judging the state of the patent system by reference to its treatment in the press?
Here on slashdot, the anti-establishment anti-government anti-Capitalism anti-big-anything memes are perilously strong. And so we aren't going to hear much about the other half of the story -- namely, the ways in which the patent system does in fact enable investment and innovation.
I personally have no clue whether the patent system is broken, or whether it is simply coughing and sputtering a bit under the deluge of so many brand new areas of research. Maybe the latter is why Congress should indeed pass some new rules.
Patent Reform Made Simple (Score:4, Interesting)
Disallow patenting an idea of how to do something. Proof of concept must exist. Limit software parents to 10 years and require that the source code and all source code for updates and/or patches be given to the USPO. After the 10 years expires the source code becomes public domain to be used by startups, students, and competitors.
Deny all patenting of genetic and biological technology.
If a company cannot make a profit off an idea that they have sole access to for a decade, then that idea or company is faulty to begin with anyways. Let somebody else have a chance to make the idea work.
You obviously do not work in patents in a small .. (Score:5, Interesting)
My ideal patent reform (Score:5, Interesting)
(1) Every year, a patent recipient names the price of an unencumbered license, $X.
(2) Every year, to renew the patent, the patentor pays $X*(2^r) for r being the number of previous renewals.
(3) As soon as a patent is not renewed for a year, it ends.
What this means:
(a) It is not practical in the long term to use a patent to prevent something from being built -- a high $X means a high renewal fee.
(b) Patents that are genuinely useful get renewed; patents that are just so much legal cow-dung will not be profitable to renew for as long.
Problems with this scheme: The exponent constant might need to vary by field; the scheme would have to be revised for design patents and plant patents; might conflict with various treaties; might be preferable to restrict the ability to use a small X one year and a larger one the next year (require X to be non-increasing?).
Re:First to invent, First to file... (Score:2, Interesting)
Re:Require source code as enablement (Score:4, Interesting)
Litle will happen, but... (Score:5, Interesting)
My first item is simple common sense, at least to anyone on /..
Second item would restore patents to individuals. The concept of patents was not designed or intended to foster large portfolios wielded by legal entities with mountains of cash and armies of lawyers. It was not even designed with Edison in mind. Restore patent holding to the actual living, breathing inventors, and let their employers have first refusal on any patentable item developed with company funds.
Third, business moves a lot faster than it did 50, 100, 200 years ago. Allowing patents to last 20 years is absurd in today's market.
Public Universities should not be allowed to be complicit with large corporations in holding patents hostage, especially in the science and medical fields. Actually, this could be made irrelevant by #2.
In general, reform the entire system to be oriented toward individual inventors, rather than Corporate innovation squatters.
If Congress does anything about this, it won't be caused by any domestic forces. The EU is gaining strength in these areas and pushing lots of reforms through. If the US wants to continue trading with Europe, many of America's draconian laws will have to be updated, including patents.
Make 'obfuscation' grounds for rejecting a patent (Score:4, Interesting)
A patent shall be rejected if it either
- fails to use standard terminology where appropriate, in a way that makes reading of the patent more difficult
- describes aspects of the invention which are minor or irrelevant but not novel in excessive and unnecessary detail, or
- is in any other obfuscated, in the opinion of the examiner.
The typical patent is a very long description using precise but completely non-standard terms. Patents spell out in detail things that a person in the field would use one or two words for, and as a result, patents are hard to read, hard to search and hard to judge. Bad patents slip through the cracks not because the patent examiners don't know what they're doing, but because the patents themselves are extremely difficult to read.
Re:Where to start.. (Score:1, Interesting)
Secondly, the rules are better understood there. Drugs are just drugs - you are patenting using compound x to treat disease y. No drugs company would try to patent 'using a drug to cure cancer', but we've seen 'using xml for e-commerce' patents.
Thirdly, network effects. Outside of computers, it's not that common that there are interoperatbility issues in the same scale. Sure, screw heads might be patented, but no particular type of screw head is that much better than another that you can just sidestep the patent and use a flat-head screw if the patents are too onerous. But in computers, if the file format used by everyone is convered by a patent, you have no option (good luck writing a DVD player program that doesn't decode AC3, for example). And once there's a network-effect standard, it's very hard to change (think how long it took PNG to replace GIF). There's a disproportiate level of control the patent gives compared to other industries.
Fourthly, it's much harder to judge innovation. Where a drug is innovative if it's sufficently different from other patented compounds, it's hard to say whether using xml for a webservice really is a revolutionary idea, or just the next step along.
Basically, I'm advocating for a better framework for patents. "Soft" patents (pure ideas) perhaps should have a much shorter life than "hard" patents, or something. Or scap patenting althorithms and business models. And scrap patenting genes - that's discovering something, not inventing anything.
Re:How would you fix the patent system? (Score:1, Interesting)
One of the main problems I see now is giving patents on things where nature has prior art, such as DNA sequences. Bad move on the part of whoever allowed this in the first place. I could see someone patenting a manufacturing method to reproduce a specific sequence under specific controlled conditions (but it has to be one that doesn't already exist in nature), but not granting a patent based 'toll authority' upon the sequence itself that's existed since who knows when.
Length or easy of obtaining? (Score:5, Interesting)
The problem has never been how long a patent lasts. The 20 year period is actually quite reasonable. The problem is how easy some really stupid shit can be patented, and how much of a pain it is to get a bad patent revoked.
Unfortunately, I'll bet money that Congress will do to patents what they did to copyright, make a bad situation worse. (bad for the little guy, wonderful for the megacorps).
Re:How would you fix the patent system? (Score:3, Interesting)
You're style of thinking is pre-internet. Knowledge travels fast, so do ideas. The money isn't in keeping secrets anymore, once one person knows them, it spreads too fast. So as the internet develops, and technology progresses DESPITE patents, we will see less and less of a need for laws to protect innovators. It's not a black and white, invent or work situation anymore. Granted, we may have to ween ourselves off this patent system as technology advances, but its coming!
Re:How would you fix the patent system? (Score:5, Interesting)
This is pure undiluted horse shit. Code is covered by copyright not patents. Method patents (of which software patents are a subset) should be abolished! If you have a patent on software, you should be required to relinquish any and all copyright claims to that code. Why should software methods be protected by both copyright and patents?
And that is how I would "fix" the patent system. Abolish all future method patents and give current holders the choice of continuing their current patents with no copyright protections after expiration or simply converting them to copyright where they belong. The choice would be theirs to make.
While I'm on a roll here, if you can also remove the assumption of validity of patents, that alone would go a long way to stopping the patent trolls.
B.
damn straight (Score:2, Interesting)
As to patents and reform, a good start is no more software patents or business process patents. witness: software is allegedly patentable, and they get granted, yet has *no warranty required*. Only "product" out there with such a deal. El wrong-o. If it is worthy of a patent and is called a product, it needs to come with a warranty. If anyone-you can't handle a warranty because it would be "impossible" to code that good, no probs, give up patents then because it is obviously not a workable product, it is a work of art, and stick to copyrights, as every other written *thing* is.
Re:Litle will happen, but... (Score:3, Interesting)
A quick note, in the US only individual persons can hold a patent. That person can then assign the patent (giving the assignee the right to use/enforce the patent) by law to anyone (including corporations).
As for your idea, I think it is horrible. First, by restricting patents to individual inventors you are restricting development in industries where the economies of scale prohibit individuals from inventing. The easiest example of this is the biotech industry. It takes years, and hundreds of millions of dollars to develop a drug. Very few individuals (save the independently wealthy) have time to go out and develop cures to diseases by themselves on their own dime.
Second, Letting employees have rights of first refusal would basically discourage companies from funding inovation. What company is going to give their employees resources to invent, if that employee is then going to turn around and take the invention for himself or license it to a competitor for more money then the company can offer. That's just bad business.
Only in some industries. Look at the pharmaceutical industry as per above. As another post said, imagine the costs of new drugs if the drug companies only have 5 years to recoup their investment versus 20 years.
The European system is not oriented to help the individual inventor. Both Europe and Japan allow corporations to hold patents directly. Both of them also have a first-to-file system of granting patents. This means that priority for patents goes to the first person/company to file the application, the the first to actually invent the invention. The US has a first to invent rule. This benefits corporations a lot more than the individual, as they are the ones with time and money for lawyers, and already have internal mechanisms in place for filing more efficiently.
Re:slashdot feedback (Score:4, Interesting)
You're onto something there: Different terms for different fields. Software would probably work well at 7 years, but something like a song would be longer, say somewhere around 50 to a 100 years. Let completely different industries be treated differently.
Re:slashdot feedback (Score:3, Interesting)
Read my posting history.
Though, you must understand, I (and others, I am sure) will actively debate any statements you may make.
Read my posting history. The correctness of my opinion is not dependent upon my sunny disposition. To be perfectly blunt, I don't feel obliged to provide a cheerful, helpful crash course in a complicated topic when confronting people making statement analogous to "Linux sux becuz Windows invented the desktop!!1"
I personally know Patent Examiners... (Score:2, Interesting)
The hidden costs of bad patents is not readily apparent to the PTO examiners. And the incentives (bonuses, efficiency) in the PTO are designed for quick turnover of the backlog. When you add in the fact that a denied patent takes an incredible amount of extra time (3-10x) to process, it's bad for the examiner, it generates little for the PTO... it's easy to see why the PTO emphasizes a quick approval and a less than cursory examination.
In light of this internal incentive scheme, all the strange "obvious" patents that we actually see coming out of the PTO these days make sense.
To fix this, yes, deny business method patents, yes that software should be copyrighted but not be patented, and update patent validity time limits. But more importantly, I would change the the application fees to change the work incentives for an examiner. A denied patent costs a lot more work for the examiner than an approved one, so it should cost a lot more. Maybe 3-4x as much. These are the changes I'd ask for
Examination. Include a large deposit with each patent application, to be refunded if the patent application is approved. If approved, the examiner rates the approval as being "clear, insightful,easily read, ok, poorly written, etc.. This rating will go on the patent record, and if the patent is ever challenged, it would be court evidence that the PTO thinks it's a well-written patent (e.g. hopefully stronger and not as ambiguous). An approved patent would have an incentive to be well written, both to be get quicker approval and to be stronger in court.
To deny the patent, the examiner must outline how it is deficient (this is the extra examiner work) *and* the PTO keeps the deposit and the examiner gets a bonus. Since the examiner's reasoning has to be included as part of the patent denial, this would put at least some check on spurious patent denials.
Licensing. If the patent holder does not produce a product in a year, anyone may license the patent for a fixed fee/product without approval from the patent holder. This fixed fee might be high at first, but the fixed license fee would go down down the longer there is no product from the patent-holder. If the patent holder eventually produces a product, then all the prior product licenses are automatically grandfathered in.
The original idea of the patent system was to document ideas clearly for eventual release into the public domain. It would benefit everyone to search the patent archives for ideas that would be neat to use or to license. Unfortunately, this is not realized. There is little incentive to read the original patents for the ideas; patents are not intended to be well-written.
This will at least set up the incentives work towards clarity and innovation and better products.
Patents should only reward deliberate investment (Score:2, Interesting)
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. Patenting of business processes, software patents and incidental patents (my own personal winner for least deserving) are all the result of this move away from the original intention. Combine this shift with the allegations of overworked and wrongly incented employees and the patent system certainly looks broken
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/solution 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...