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Patents United States

Patent Office Head Lays Out Reform Strategy 253

Posted by ScuttleMonkey
from the long-overdue dept.
jeevesbond writes to tell us that Jon Dudas, the Under Secretary of Commerce for Intellectual Property and Director of the US Patent and Trademark Office has laid out a plan for patent reform. "Speaking at the Tech Policy Summit in San Jose, Dudas said that characterizing the patent system as hurting innovation is a 'fundamentally wrong' way to frame the debate. 'I have traveled around the world, and every nation is thinking how it can model [intellectual property governance] after the U.S,' Dudas said. 'It's a proven system, over 200 years old. The Supreme Court, Congress and policy makers are involved [in cases and legal reforms] not because the system is broken. It's not perfect, and we should be having the debate on how to improve.'"
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Patent Office Head Lays Out Reform Strategy

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  • Just a few things (Score:5, Insightful)

    by fyngyrz (762201) * on Wednesday February 28, 2007 @04:03PM (#18186164) Homepage Journal
    See any serious problems with this story?

    Other than the fact that this guy is out of his bloody mind?

    Software patents: totally ridiculous, and putting a huge hurt on an area that should be boiling with creativity. Creatively speaking, this time in our history offers more creative ground and lower barriers to entry than ever before in our history. The primary barrier, aside from your own intellectual resources, is the patent system. It is a barrier to creativity, and furthermore, it is a barrier to progress.

    Hardware patents: First guy with the money into the patent system and with the wherewithal to defend the patent wins. Nothing to do with the actual inventor; totally centered about money. Anything wrong with that? Only that it suppresses any inventor without corporate backing, which ought to be a crime in and of itself.

    And oh yeah, the other inventor(s) who worked on this? A second late to file, and they are well and truly locked out. Is that fair? Is that even slightly fair?

    The US patent system is a well of misery, corporate bootlicking, and "let's crush the little guy" methodologies. Sure, everyone else looks to the US system, because it is a system designed to turn over money, not encourage innovation. The fact that it manages to encourage at least corporations to innovate can be considered a side effect. It certainly isn't the main goal of the system, which is to feed the legal profession a regular set of juicy, meaty bones.

    I'll tell you what is "fundamentally wrong"; The US patent system is fundamentally wrong. Why? Because it is a system that guarantees that anyone but the 1st to the gate is hammered; because it is a system that guarantees that anyone without deep pockets cannot actually be protected (read, encouraged) by the system; because it discourages innovation. The number of devices/programs you can actually create without running smack into someone's fool patent is very near zero. So much for encouraging innovation. Now lawyers... they are encouraged. Oh yes. Very much so.

    The copyright system isn't doing a lot better, but that's a different issue, somewhat.

    • by iplayfast (166447)
      Yes...
      But how do you really feel? :)
    • by gardyloo (512791)

      The primary barrier, aside from your own intellectual resources, is the patent system. It is a barrier to creativity, and furthermore, it is a barrier to progress.
      So you're saying that it's basically the real world's "-10^9: Redundant" mod?
    • by AndersOSU (873247) on Wednesday February 28, 2007 @04:14PM (#18186324)
      I don't think software patents are a good thing, so I'm not going to argue with you there. But hardware should be patentable - it is a real physical devise, and provided it does something novel and non-obvious, the R&D investment should be protected. In the rare case that individuals independently discover something - tough luck if you didn't think of it first - that is the way it works.

      You seem to be mistaken as to how the US patent system works. The US operates under a first-inventor principle, which means that it isn't the guy who makes it to the office with the money first that gets the rights. Not that first-inventor isn't without problems, but the race to the patent office isn't one of them.

      The US system is most certainly broken, but clearly not in the ways you think it is. I'm looking forward to reading the article, but it appears slashdotted. IMHO the biggest problem with the current state of the patent office is the rubber stamping of obvious and trivial inventions.
      • Re: (Score:3, Insightful)

        by CmdrGravy (645153)
        I agree, I think hardware patents seem to work quite well the problem is when you simply try and transfer that model onto something which is inherently different like software.
        • by Chandon Seldon (43083) on Wednesday February 28, 2007 @04:30PM (#18186554) Homepage

          I think hardware patents seem to work quite well

          Do you have any reason for this belief?

          Patent law is an economic tweak that is intended to "promote innovation". It's possible to see if it's really doing that, and if it isn't then it obviously should go away. Even if it does promote innovation, that still doesn't mean it's a good idea - like any economic choice it has a benifit and a cost, and the cost should be looked at closely and frequently for any country-wide economic policy decision.

          • by CmdrGravy (645153)

            Do you have any reason for this belief?
            The amount of new hardware constantly being developed might be some indication that they are working well, you could obviously argue that without a comparison to what would have been developed if patents did not exist it's hard to measure that but equally you'd have to back up your argument that no patents are better for innovation than patents with some evidence.
          • Re: (Score:3, Interesting)

            by AndersOSU (873247)
            I don't know how hardware patents are working, but I think that patents in general are necessary to support R&D overheads.

            This is where some laissez faire guy usually touts the first-mover advantage. Frankly, first-mover advantage is vastly over-rated. Sure it works for the iPod, but if the patent system were about to collapse I'd put my life-saving on the line that big-pharma would close their R&D facilities within a year. Big pharma, for all their massive short-comings, spends tons of money on
            • by tambo (310170)
              Frankly, first-mover advantage is vastly over-rated. Sure it works for the iPod...

              Actually, it didn't work for the iPod, because Apple didn't rely on first-mover advantage. It patented [uspto.gov] the iPod interface.

              In reality, the iPod's success owes little to both the first-mover advantage and the patent system. The iPod has succeeded for three other reasons:

              • Excellent design - it is still one of the best user-interface experiences on the market.
              • Network effects - leveraging iTunes and tight integration with th
      • by EmbeddedJanitor (597831) on Wednesday February 28, 2007 @04:49PM (#18186808)
        Why is hardware really different? These days so much hardware is designed in a very similar way to how software is designed.... You get an idea, sit at a work station, pull up part specs etc and draw schematics. You then run suimulations -- pretty much like how you'd test code. Then once you have a design that appears to work, send it off for a trial build. No real stuff "hard stuff" involved so far.

        Sure, when you get the hard stuff back, you have something tangible.

        Here's the kicker though. If you get a patent, then you're protecting the **idea**, not a physical board. At the stage in the process when the ideas emerged (ie. design), there was no "hard stuff" involved. I don't really think that there is a case to treat sw and hw patents differently.

        The biggest problem with software patents is that they are examined badly. Being able to spot really novel software is very difficult, but the same applies to, say, a hardware motor driver circuit.

        And, for the record, I design both hardware and software.

        • Re: (Score:3, Insightful)

          by AndersOSU (873247)
          I think that hardware patents should be allowed because if I invent the op-amp I want to get paid for it. Without a hardware patent I'm SOL. There is no copyright protecting hardware (which should be the major IP protector for software), and reverse engineering and reproducing my hardware design would be trivial once I sold the first one.
          • There is no copyright protecting hardware (which should be the major IP protector for software) ...
            You do realize you're posting this on Slashdot? Anyway, reverse engineering software isn't any harder and in fact, it's usually easier.
            • by AndersOSU (873247)
              I'm not saying that software has to be copyrighted, nor am I saying that inventions have to be patented. All I'm saying is that if I were to invent the op-amp or write OSX on my own time I'd exercise my patent or copyright respectively. It doesn't matter which is harder to reverse engineer they both have IP protections. If someone else were to do the work and release it for free more power to 'em.

          • by tambo (310170)
            I think that hardware patents should be allowed because if I invent the op-amp I want to get paid for it. Without a hardware patent I'm SOL. There is no copyright protecting hardware (which should be the major IP protector for software)...

            Copyrights and patents are very different concepts. You can't equate them.

            Let's say you invent a new method of compressing data, and you write a codec that does it. Now, you can patent that, and the patent will cover the overall method of compressing data in the way that

        • by PitaBred (632671) <slashdot@pitabre ... org minus distro> on Wednesday February 28, 2007 @05:38PM (#18187452) Homepage
          But hardware requires much more of an upfront materials investment. They both require time, but only one is infinitely easy to replicate.
        • by ScrewMaster (602015) on Wednesday February 28, 2007 @05:49PM (#18187598)
          If you get a patent, then you're protecting the **idea**, not a physical board.

          Nope. That absolutely is not how the Founders intended the patent system work. You're confusing concept and implementation. Put it this way, there was a damned good reason why the Patent Office used to require a working prototype of any device that for which a patent application had been made.

          In the past, you could have an idea, but you could only patent a particular realization of that idea. Others could take the exact same idea, implement it in a sufficiently different or novel way, and receive an equally-valid patent. That worked very well (for a bloody long time) and it encouraged inventors to look beyond the obvious and find other (often better!) ways of realizing the same fundamental ideas.

          The key to that, however, is specificity, narrowness. It was never, ever intended that anyone or any company could control every possible realization of a single idea. That, unfortunately, is exactly what the U.S. patence office allows, if it is true that other countries are modelling their IP laws after our present system, well, that's good. They'll be just as screwed up as we are.
      • Re:Just a few things (Score:4, Interesting)

        by tambo (310170) on Wednesday February 28, 2007 @05:01PM (#18186994)
        IMHO the biggest problem with the current state of the patent office is the rubber stamping of obvious and trivial inventions.

        Your opinion is well-founded. I wouldn't exactly call it rubber-stamping, though. The problem is that examiners aren't being given enough resources to do their jobs. In particular, examiners are being hugely pressured with productivity metrics: they have to turn around (x) applications per year, or they get reprimanded or even fired. And one of the key proponents of this system is the very same Jon Dudas. The result is that patent examiners are demoralized and overburdened, so examination suffers - which hurts everyone (including the patentee.)

        A better patent examination system will help everyone. This requires giving examiners more resources so that they can do their jobs better... and, perhaps, some more respect, so that their morale remains high.

        - David Stein

        • by Mr2cents (323101)
          Something I've never quite understood is how it is determined that an invention is "innovative". If it's just an interpretation, then an idiot would consider a tri-state checkbox innovative, while a genius might consider a fusion reactor trivial (slightly exagerated). Is it voted upon? Or is it a single guy, following some guidelines?
          • Re:Just a few things (Score:5, Informative)

            by tambo (310170) on Wednesday February 28, 2007 @05:52PM (#18187628)
            Something I've never quite understood is how it is determined that an invention is "innovative". ... Is it voted upon? Or is it a single guy, following some guidelines?

            It's guidelines-based - but those guidelines go back to the first patent act, passed in 1790. (This was a short three years after the adoption of the Constitution, so IP obviously held a very high priority for our first federal government.)

            The guidelines are, essentially, three:

            1. The invention has to be one of the statutory classes - according to the first patent act, an "art, manufacture, engine, machine, or device." This summary has stood virtually intact for 217 years: today's version (35 USC 101) reads: "process, machine, manufacture, or composition of matter." If it's not one of those, then it's not useful and not patentable.
            2. The invention has to be new - it has to be novel and non-obvious. If it's just a rehash of known technology, then it's not "useful" enough to warrant a patent.
            3. The invention has to be complete, to the point where the description can teach others how to apply it. The used here is that it must be "described in sufficient detail to permit a person having ordinary skill in the art to which the invention pertains to make and use the invention without undue experimentation." (Long-winded, yes, but it's a good concept.)
            So that's a pretty good level of guidance as to what's "useful." The only tweak on all of this is that, according to the Supreme Court (Diamond v. Chakrabarty) [wikipedia.org], these limitations are to be read expansively; i.e., the patent system should err on the side of breadth. In their (unusually eloquent) rhetoric, the Court held that the system is intended to include "anything under the sun that is made by man" in its scope. So you should be able to get a patent on anything that meets, at least basically, these requirements.

            That's the theory. The practice is even more rigorous, because the patent process is onerous: expensive, protracted, somewhat uncertain. The pragmatic answer is that "useful" is partially determined by the inventor's subjective assessment of its value. The inventor makes a value judgment: is the invention sufficiently "useful" to warrant the hassle and cost?

            - David Stein

      • by nmos (25822)
        But hardware should be patentable - it is a real physical devise, and provided it does something novel and non-obvious, the R&D investment should be protected. In the rare case that individuals independently discover something - tough luck if you didn't think of it first - that is the way it works.

        Well, you say that but you're not actually supporting it with any reason why it should be that way.

        The conventional wisdom is that giving a temporary monopoly to an inventor encourages them to invent more and
        • by AndersOSU (873247)
          I'm with you, all the problems you described are most certainly real, and I have no problem saying the patent system is broken. However, I'm not sure that it is doing more harm than good, and think that it should be fixed rather than scrapped.
    • by acidrain (35064)

      The US patent system is fundamentally wrong.

      I think everyone here feels your pain.

      Here is the thing I can't quite figure out. Software patents, and your particularly atrocious "business method" patents clearly don't help innovation. Hardware patents are too easily a form of software patent and protect things that aren't innovation. But it isn't clear to me that all classes of patents are flawed. For example, pharmaceutical patents, as odious as a concept as they are, seem to be the thing that pays t

      • Re:Just a few things (Score:5, Interesting)

        by dgatwood (11270) on Wednesday February 28, 2007 @05:24PM (#18187296) Journal

        What clear standard would you suggest they apply to the system to weed out the good from the bad?

        I've said it before, and I'll say it again. It's really simple. You test for obviousness in a way that avoids false "non-obvious" rulings due to obscurity of the problem. To test for good patents, you send out a description of the patent to a dozen people in the field. If any of them comes up with a solution that is basically comparable to your solution within a reasonable period of time, the patent should be rejected with no possibility for appeal.

        In the case of software patents, outside certain complex algorithmic areas like digital signal processing, almost everything is inherently obvious if the problem is stated clearly. The only thing non-obvious is usually the problem itself. A patent should never be granted based solely on spotting the problem first. It should be granted based on finding a unique solution to the problem that isn't obvious. More to the point, there should be at least one other way to solve the problem. If none of the examiners come up with another way to solve the problem, then they are not sufficiently skilled in the subject area to have solved the problem, and thus are not qualified to evaluate the patent. If there truly is only one way to solve a problem, then it should not be patentable.

        For example, it's a hundred years ago. The problem is that you don't have an eraser around when you have a pencil. Two possible solutions might come to mind: a pencil box with an eraser area and a pencil with an eraser built in. Your typical person skilled in woodworking and making pencils probably won't think of the second one even if you present them with the problem because the alternative solutions are more obvious, though less desirable. There's a third way. Make the outside of the pencil out of rubber. This avoids the eraser-on-the-end patent. So there is provably another solution. As such, the pencil with eraser on the end should be patentable.

        As for patents on algorithmic stuff like DSP, that's really all applied mathematics, and should not be patentable. The law says that algorithms cannot be patented, but these corporations skirt around the law by claiming that it is a "process" for implementing the algorithm rather than an algorithm. Since there is usually only one way to implement the algorithm, however, it becomes effectively a patent on the algorithm. As far as I'm concerned, such blatant abuse of this poorly written law should be abolished outright. The only way to do that is to abolish software patents.

        The biggest problem with the patent system, though, is duration. If you do not abolish software patents, the patent should have a very short expiration date because the field of software is a rapidly growing field which is quite clearly being stifled by patents. A two or three year duration is the absolute maximum reasonable time for a software patent. Twenty years is laughable. Outside of obscure specialty software like banking systems, twenty years from now, no piece of software that is currently in use will still be in use in any identifiable way. Twenty years ago, we had Windows 2.0, MS-DOS, Mac OS System 2, the Apple IIgs was popular, Atari made computers, the Commodore 128D, and the Amiga 2000. Out of all of those, only two are in some small way the ancient ancestors of something we still use, and even those share no real code in common and show only the barest hint of UI similarity to their successors.

        Even in computer hardware, there may be some advantage to shorter patent durations because of the speed at which the industry is changing. However, at the same time, there is little opportunity for new companies or individuals in fields like microprocessor design anyway due to the huge startup costs. In software, where the cost of development is strictly the time consumed, the constant influx of new blood is what keeps the industry innovating, and when you have people saying, "I'd wrote a free app that d

        • by AndersOSU (873247)
          In general I like your idea, but I think you underestimate the importance of recognizing the problem. The innovation around pencils and erasers (speculating) wasn't that we put rubber on the end of the pencil, but rather that it would be useful to be able erase things that we wrote on paper. If you know about graphite and rubber maybe it is obvious once someone asks you how to erase something, but if no one has ever thought to ask the question that is notable in and of itself.
      • by fyngyrz (762201) *

        For example, pharmaceutical patents, as odious as a concept as they are, seem to be the thing that pays the bills for the research, and without them there would be a lot less medicine being developed.

        Well, you need to look at why it is so expensive to develop pharmaceuticals. Where are the costs? First, there are the government hoops to jump through, the approvals that need to be gotten. The presumption there is that the pharma companies can't operate without big brother watching over them. I disagree

        • by AndersOSU (873247)

          Third; like everyone else, they have to allow for patent fights. Get rid of that. Want to make a drug? Go ahead and make it. Design the system so that there is more of a percentage in sharing the idea than hiding it. There are several ways to go about that I can think of (pooling risk, pooling R&D and results, pooling or staging manufacturing capabilities), I'm sure others, far more clever than I am, could do better.

          I don't think there is an easy solution, the problem that patents solve isn't Merck vs.

    • Re:Just a few things (Score:4, Interesting)

      by tambo (310170) on Wednesday February 28, 2007 @04:53PM (#18186862)
      Other than the fact that this guy is out of his bloody mind?

      This guy does have some issues. Some of his reform ideas are universally and vociferously panned. For instance, he wants applicants to "designate" a few patent claims that will be examined - and the rest of the claims aren't, so that the patent issues with completely unexamined claims. Very bad idea.

      Then there's this comment: "It's a proven system, over 200 years old..." - Anyone even tangentially involved in the patent system should know, off the top of their head, that the current system really goes back only to either 1836, which re-introduced the idea of patent examination, and that the modern system of peripheral patent claiming (probably the defining element of patent prosecution) only dates to somewhere between the patent acts of 1870 and 1952. What we had before 1836 was patent registration, which was a hideous mess. No one involved in the patent system should be making such mistaken characterizations... let alone the head of the USPTO.

      But the rest of your comments are spurious. For instance: Software patents: totally ridiculous, and putting a huge hurt on an area that should be boiling with creativity.

      Are you seriously suggesting that software isn't boiling with creativity? Look at everything Google is doing, and all of the Linux distros, and all of the stuff on SourceForge. Look at the rapid development of Web 2.0 apps in the last two years. Look at the rate of deployment of software across a huge range of devices, from 64-bit super-pipelined machines to UMPCs to dinky cellphone processors. What part of this is "crippled?" Software development is limited only by the rate of our collective imagination. Patents aren't hampering anything.

      First guy with the money into the patent system and with the wherewithal to defend the patent wins. Nothing to do with the actual inventor; totally centered about money. Anything wrong with that? Only that it suppresses any inventor without corporate backing, which ought to be a crime in and of itself.

      You are misinformed.

      Sole inventors have the power to defend their inventions - all they have to do is to publish them. If they were truly the first inventors, their publications will trump any second inventor's attempt to patent it! Any such patents will be invalidated by their publication - see 35 USC 102(a). True, they will not have the benefit of a patent monopoly - but they didn't pay for that privilege.

      And oh yeah, the other inventor(s) who worked on this? A second late to file, and they are well and truly locked out. Is that fair? Is that even slightly fair?

      Thomas Jefferson certainly thought so. In fact, he thought it was important enough to include in the U.S. Constitution. You are welcome to take it up with him in the afterlife.

      The US patent system is a well of misery, corporate bootlicking, and "let's crush the little guy" methodologies.

      Again, you are misinformed. Patents are too expensive to assert against "little guys." Patents are almost solely used by large corporations against other large corporations. In practice, the "little guys" - sole inventors - are almost never accused with patent infringement. Why bother? It's too expensive, and there's no benefit for the corporation.

      The copyright system, on the other hand, is deeply diseased and deeply in need of reform. The RIAA's antics are proof positive of that.

      - David Stein

      • by dgatwood (11270) on Wednesday February 28, 2007 @05:46PM (#18187560) Journal

        Are you seriously suggesting that software isn't boiling with creativity? Look at everything Google is doing, and all of the Linux distros, and all of the stuff on SourceForge. Look at the rapid development of Web 2.0 apps in the last two years. Look at the rate of deployment of software across a huge range of devices, from 64-bit super-pipelined machines to UMPCs to dinky cellphone processors. What part of this is "crippled?" Software development is limited only by the rate of our collective imagination. Patents aren't hampering anything.

        So by your logic, because innovation still occurs, innovation is not being stifled. By that same logic, because I and all of my coworkers successfully drove to work this morning, I can conclude that there were no traffic accidents in the Bay Area, and that driving is completely safe. Am I understanding correctly? I'm sure there's a name for this logical fallacy. Ah. Here it is.argumentum ad ignorantiam [wikipedia.org]. So I'll attack that logical fallacy by simply providing the needed proof.

        Google is a corporation. They are inherently somewhat shielded from patents by virtue of their own portfolio and their ability to defend themselves. Web 2.0 apps are only happening because nobody has started suing in that area. If another Amazon one-click patent bit users of AJAX, we'd see a major chilling effect outside of the corporate space.

        Linux distros? IBM defending themselves from SCO. Microsoft claiming that Linux infringes on their patents. Though they haven't sued, that doesn't mean people aren't getting uncomfortable.

        And then, there are the lawsuits over MP3. Bets on whether either of those impact Ogg Vorbis, anyone? They're pretty broad.... And how many extra years did Vorbis take because they were trying to dodge the patent minefield? How much other software that you use every day either costs more because the company had to license some BS patent or defend against it? How much other software that you use every day took longer to release because they had to spend extra effort to avoid some BS patent?

        In practice, the "little guys" - sole inventors - are almost never accused with patent infringement. Why bother? It's too expensive, and there's no benefit for the corporation.

        While that is true, that doesn't mean that the little guys don't worry about it. And if the little guys are worrying about it, they are avoiding doing things out of fear of getting sued, and that is stifling innovation even if those fears are not justified.

        • by tambo (310170)
          So by your logic, because innovation still occurs, innovation is not being stifled.

          I guess by your logic, if you think innovation could be faster, it's obviously being stifled. Q.E.D.

          The evidence is on my side. Look around! Software is booming like no industry before it has! Innovation is everywhere. How deep is your cynicism that you can look at all of the awesome developments around us and say, "Well, it could be better?"

          Web 2.0 apps are only happening because nobody has started suing in that area.

      • by Eccles (932)
        Thomas Jefferson certainly thought so. In fact, he thought it was important enough to include in the U.S. Constitution.

        I doubt that, since Jefferson did not attend the Constitutional Convention (he was minister to France at the time) and was not involved in writing it.
        • by tambo (310170)

          From here [freesoftwaremagazine.com]:

          A reader contacted me to point out that Thomas Jefferson did not write the US Constitution, so he did not in fact write the langauge enabling copyrights and patents "for limited times". He was in France at the time, and James Madison is the one who is primarily credited with the language in the Constitution. Jefferson was, however, quite opinionated about this subject and several others embodied in the Constitution, and he wrote several commentaries on it. It's probably also safe to say that he

    • by OakLEE (91103)

      I'll tell you what is "fundamentally wrong"; The US patent system is fundamentally wrong.

      I am in total agreement that the patent system needs to be reformed, and issues such as obviousness, and the term length for subject matter like software and business method patents needs to be addressed. However, advocating for the abolishment of the patent system (as I suspect you are) would lead to a fundamentally worse situation then the current one.

      First, the patent system, regardless of its flaws, does encourage

      • by fyngyrz (762201) *

        First, the patent system, regardless of its flaws, does encourage disclosure of inventions and eventually makes them public domain. In 20 years, regardless of how the owner has used, not used, or abused the patent, the invention claimed in that patent will be public domain, and usable by all with no royalties or restrictions. And even during those 20 years, society can still use that knowledge for further experimentation, or improve on the original invention.

        Are you asserting here that the only way to

    • The number of devices/programs you can actually create without running smack into someone's fool patent is very near zero.

      And part of the reason for that are the large number of errors the USPTO makes. I believe 3.5% was quoted as the error rate when the USPTO performs internal reviews, however, the clown seems to dismiss the real world where "third-party requests for re-examination"..."are successful at having the subject patent either narrowed or completely revoked roughly 70 percent of the time. About 12

    • But what did you think a Bush appointed patent lawyer would come up with anyway? Tort law bad, patent lawsuits good maybe?
    • Undersecretary Dudas says "and every nation is thinking how it can model [intellectual property governance] after the U.S"? That's happening not because it's a good idea but because the US Commerce Department is lobbying very aggressively to get everybody else to do what the US Intellectual Property industry wants.

      He also asserts that "It's a proven system, over 200 years old.". But business model patents, which are probably the most abused and the most common violators of "obviousness", are only a few y

  • ...I'm afraid I have prior art claims to that plan.

    FP!
    • by spun (1352)
      I wonder, was there ever a leading official of a monastic order who was named Arthur? Seems likely, right? I wonder what Prior Art would have to say about all this...
  • by MemoryDragon (544441) on Wednesday February 28, 2007 @04:05PM (#18186200)
    But only because US companies push a lot of money into the political chains to push the broken patent system of gentech and software upon the rest of the world. It is a shame what is going on here in Europe, the affected polticians dont even try to hide on who's paylist they indirectly are.
  • by saskboy (600063) on Wednesday February 28, 2007 @04:07PM (#18186230) Homepage Journal
    "It's a proven system, over 200 years old."

    Using that logic, we should all be using horses as our primary mode of transportation. Just look how proven and older that locomotion model is!

    Why don't we use evidence from the world since the Internet was invented, and base our new system upon the modern world?
    • by pavon (30274) on Wednesday February 28, 2007 @04:24PM (#18186466)
      In addition, I am very sceptical of the claim that countries are modeling their laws after ours because it is a proven system. I'd wager that it has more to do with being required to have IP laws which are simular to the US and Old Europe in order to participate in various trade groups and treaties.
      • Re: (Score:3, Insightful)

        by Red Flayer (890720)

        I'd wager that it has more to do with being required to have IP laws which are simular to the US and Old Europe in order to participate in various trade groups and treaties.

        You hit the nail on the head with that one.

        I'd just add that it also has to do with getting corporations with major capital to invest in your country. Who is going to offshore research to a country where the fruits of the research might not pay off as well as if the research were done in the US?

        Draconian, big-capital-friendly IP laws

        • by Belial6 (794905)
          Moving research off shore to keep others from doing similar work is a delay tactic at best. The reason is that most of these products will be sold in the US, so they must enter the country eventually. Now, that argument might work for a small country that might never see the product anyway, but not the US.
          • Moving research off shore to keep others from doing similar work is a delay tactic at best.

            It's not to keep others from doing similar work, it's to keep costs down.

            If the company you're offshoring to has weak IP laws (and lack of an IP treaty with the US) then you don't want to offshore there. Countries want their IP laws to be similar to US law so that US firms (or multinationals with a big US presence) will consider them for product development/manufacturing, as well as a product market.

            Loose IP laws =

            • Perhaps I misunderstood your post: "Without them, the US would see even more off shoring of research jobs." How would a lack of IP laws in the US create even more off shoring?
              • Less of an incentive to keep your research in the US, where, due to IP laws, you have a greater assurance of being able to monetize your inventions.

                This is from the perspective of a huge company (the ones who write the laws), not a small one.
    • Re: (Score:2, Insightful)

      by skoaldipper (752281)
      > Why don't we use evidence from the world since the Internet was invented, and base our new system upon the modern world?

      What about our current Constitution? It's over 200 years old and a proven system. Would you replace it and start from scratch as well?

      I think Dudas' claim here is a valid one. Just like our own 200+ year old governing documents, the patent system has undergone changes over time as well as our own government. It adapts to the times.

      I think the problem is they have been severely swa
      • by Red Flayer (890720) on Wednesday February 28, 2007 @04:54PM (#18186864) Journal

        What about our current Constitution? It's over 200 years old and a proven system. Would you replace it and start from scratch as well?
        Yes, yes I would. The Constitution is no longer a living document, and it doesn't reflect the current (in)capacity of Americans to govern ourselves. It is designed for less than 30,000:1 federal governance ratio -- it's the lack of accountability due to massive accretion of power in a few hands that has destroyed any semblance of non-corporate control.

        What we need to do is rebuild the system from scratch, forcing the huge government bureaucracy and the corporate masters it serves to re-entrench itself whilst under REAL citizen oversight*.

        *I know, if wishes were horses, beggars would ride. But I still think that a ratio of 6.*10^5 people to 1 representative is phenomenally oversized. Let alone an average of 3*10^6 : 1 for the Senate.
      • by rubycodez (864176)
        oh, so a slave is worth three-fifths a normal human being? the constitution has undergone HUGE changes since it was first written. where is the corresponding self-improvement mechanism for the patent system? Admitting there are now new things that the patent system improperly addresses (like this newfangled computer software thang) is a first step to such an improvement.
      • by saskboy (600063)
        "What about our current Constitution? It's over 200 years old and a proven system. Would you replace it and start from scratch as well?"

        Perhaps, it does have a lot of ammendments. Plus, things Bush has done, and legislated into existence, violate the spirit and wording of the Constitution. Yet most Americans support Bush, right ;-)

        Seriously though, the Constitution is the supreme law in the land, and is a philosophy for all laws under it. The patent system is based on a philosophy that may not apply in a wo
      • Our current constitution really serves a very tiny power elite.

        You are allowed to pick one from column A or column B.

        Your choice of column A or B was chosen from a pool of people who sold out to corporations for money and agreed to work with the existing power structure.

        We haven't had a real democracy since the 1960's.

        But at least they don't torture to many of us even tho they do incarcerate us at a higher rate than any other country in the world.
    • The system isn't 200 years old. It has been fundamentally changed since it came into conception.

      I would be lying by omission if I said I have been driving the same car for the last 20 years.... and had the motor, transmission, hood, trunk, etcera changed until the only thing that is the same with the original car is the gas guage.

      Now, that is an exaggeration on the patent system. But if the Patent system hasn't swayed from it's original need to have a working model, we would not be in this debate. What t
  • by PIPBoy3000 (619296) on Wednesday February 28, 2007 @04:10PM (#18186276)
    Gamasutra [gamasutra.com] had a good article on this recently. The thing that caught my eye was that the patent office is supported by fees collected for each patent application. They had a signed framed that read Our Patent Mission: To Help Our Customers Get Patents.

    To me, that speaks volumes. Any system with an incentive to do crazy things, tends to do crazy things over time. In this case, the goal is to get as many patents issued as possible, so that more people patent odd things and more money flows into the patent office. Break that incentive and people might start behaving rationally again.
    • by AndersOSU (873247) on Wednesday February 28, 2007 @04:18PM (#18186382)
      Not a chance. The patent game is being played by major corporations firing volleys of offensive and defensive patents at each other. They are certainly not swayed by the fee structure of the patent office, they spend far far more money on their corporate lawyers. The way to break the cycle is to stop granting stupid patents.
      • by styrotech (136124)
        You missed his point.

        The way to break the cycle is to stop granting stupid patents.

        Yeah, but his point was that will never happen while the patent office is funded by the granting of patents. There is an incentive to grant stupid patents.
    • by Floritard (1058660) on Wednesday February 28, 2007 @04:22PM (#18186438)
      This was mentioned in a computers in modern society course I splept through in college. Something about the government shutting off funding to the patent office and telling it to fund itself. I believe this happened fairly recently, as in almost coincident with the widespread practice of patenting software. What timing...
      • Lots of systems "break" when the incentive for folks is to behave a certain way. In many cases, it's unexpected and unpleasant.

        For example, one could argue that lawyers have an incentive to not settle and to draw out a case as long as possible, assuming their client has the means to pay. Since they're paid by the hour, they want to "milk" their client as long as possible. Going to court is the way to do that.

        Another is doctors, who get paid per procedure they do, regardless of how necessary it is.
    • by Kadin2048 (468275) <[slashdot.kadin] [at] [xoxy.net]> on Wednesday February 28, 2007 @04:57PM (#18186940) Homepage Journal
      I know a guy who worked as an examiner at the patent office. It's basically like working on a factory assembling line. Everything is based off of how many applications you can process. I think that new examiners are expected to do 2 or 3 patents a week, if you want to stay ahead and get promoted. Don't do your quota, you don't get promoted, and maybe eventually you get fired (but it's a government operation so let's not get too ridiculous here).

      But basically, 2 or 3 patents need to cross your desk a week, and either be accepted or sent back. That means you can give each one maybe two days. That's two days to do all the research, and look for all the prior art, and make a judgment call. That's nothing on some of these patents, which can be hugely technical, particularly when the people filing them can take all the time they want to obfuscate their intentions and tweak the language to make them as broad as possible.

      And here's the best part: if an examiner rejects a patent and sends it back to the applicant, and then the applicant sends it back in with updates, that updated application doesn't count towards the examiner's quota. So there's an obvious advantage towards accepting applications, because that's the absolutely sure way of getting it off your desk and making sure that it's not going to come back to haunt you later.

      Anyone see anything wrong here?
  • Tiny correction... (Score:5, Insightful)

    by muecksteiner (102093) on Wednesday February 28, 2007 @04:10PM (#18186280)
    I have traveled around the world, and every nation is thinking how it can model [intellectual property governance] after the U.S.

    should probably read

    every nation that we can strong-arm into accepting our rules is modelling its IP governance after the U.S.

    If he were honest, that is.

    But not being a particularly honest person was probably a job requirement for his position, though.

    A.
    • by MadAhab (40080)
      Correct. And to the extent it's not about who we can strong-arm - I don't think we should be bragging that corrupt economies envy our patent system for its ability to restrain competition and provide opportunities to extort deep pockets.

      It's broken. Fucking stupid broke. 1-click shopping. QED.

      This guy is a dipshit. IP law has run amok, to the point that even the leaders of industry know it (major media companies excepted). To name just one example of hundreds, the vast majority of the pre-1936 movies are su
  • Yah, right (Score:5, Insightful)

    by pembo13 (770295) on Wednesday February 28, 2007 @04:10PM (#18186282) Homepage

    'I have traveled around the world, and every nation is thinking how it can model [intellectual property governance] after the U.S,' Dudas said.

    Nice spin. I think he means nations are afraid of not modeling their system after the US since the US has proven time and time again that whatever needs to be done to have their way will be done.

    • Re: (Score:3, Funny)

      by Anonymous Coward
      Have you ever considered the US may be right every single time. Its for the best. Wait till we get you off the metric system.
  • Well... (Score:5, Insightful)

    by C_Kode (102755) on Wednesday February 28, 2007 @04:11PM (#18186290) Journal
    'I have traveled around the world, and every nation is thinking how it can model [intellectual property governance] after the U.S,' Dudas said. 'It's a proven system, over 200 years old.

    Just because it's a proven system over 200 years old, doesn't mean it still functions today the way it was intended 200 years ago. Hell, I don't bank the way I did five years ago. Times change and a huge part of why it doesn't work is that almost everything has changed along with it.

    Life's parameters change. When that happens the algorithm that governs it sometimes must change too.
  • Anybody else spotted this ?
  • Bullshit! (Score:4, Insightful)

    by judd (3212) on Wednesday February 28, 2007 @04:16PM (#18186368) Homepage
    "every nation is thinking how it can model [intellectual property governance] after the U.S"

    Other nations are thinking about it because of heavy pressure from the US to comply with the US model. That pressure comes in turn from lobbying of US govt by US businesses. In no way are other countries spontaneously saying "Hey, what a neat model!" Absent US pressure for trade agreements etc we would keep the status quo, or even free up current regimes.
  • by CmdrGravy (645153) on Wednesday February 28, 2007 @04:18PM (#18186378) Homepage

    I have traveled around the world, and every nation is thinking how it can model [intellectual property governance] after the U.S
    Aparently he hasn't visited the UK or the EU lately then who, as read on ./ earlier this week, are moving to specifically prevent software patents.

    If I were a betting man, and I bet you I'm not, I'd say he's spoken to people throughout the world who already agree that much tighter intellectual property laws are required who may coincidentally talk a lot to large corporations, many of which may be US based, who would like to protect their profits and don't have any reason to consider the social side of intellectual property legislation.

    Also to say that the rest of the world is currently so awestruck with the benefits brought by US intellectual property legislation as it currently is wouldn't appear to be a good reason for suggesting changes to that legislation.
  • Correction (Score:3, Insightful)

    by organgtool (966989) on Wednesday February 28, 2007 @04:28PM (#18186508)

    'I have traveled around the world, and [every corporation in] every nation is thinking how it can model [intellectual property governance] after the U.S,' Dudas said. 'It's a proven system, over 200 years old.'
    There, I "truthified" what Dudas was trying to say. Regarding the part about the patent system being proven for the past 200 years, software has only been involved in that system for a few decades and it has hardly been "proven." Maybe by "proven" he meant flooding the courts with frivolous lawsuits over patents that should never have been granted in the first place.
  • by Jaywalk (94910) on Wednesday February 28, 2007 @04:30PM (#18186542) Homepage

    It's a proven system, over 200 years old.
    You might want to check up on your history [bitlaw.com]. Parts of the patent system may be a couple of centuries old, but software patents aren't in that class. Until 1980 the Patent Office didn't allow software patents at all until it was forced to do so by the Supreme Court. Even that wasn't really a "software patent" in the sense that Amazon's one-click patent [cnn.com] is; it was just a computer program that was part of a larger invention. Unfortunately this bone-headed decision has blurred the long-established principle that ideas can't be patented. Since computer code is basically just the instantiation of an idea, software patents make ideas patentable. That has led to further deterioration by allowing things like business methods to be patented. So now you even have these clowns [plotpatents.com] claiming that story plot lines can be patented.

    The "200 year old" system he's bragging about worked fine. It's the recent introduction of changes to that system which have caused the problems.

    • by autophile (640621)

      Since computer code is basically just the instantiation of an idea, software patents make ideas patentable.

      Whoops, you just handed the IP gnomes a weapon. The proper statement is, computer code is just one of many descriptions of an idea. Descriptions are trademarkable. Instantiations are patentable.

      --Rob

    • "The "200 year old" system he's bragging about worked fine. It's the recent introduction of changes to that system which have caused the problems."

      That's essentially what he's saying. Parts of the system are imperfect, but as a whole it's working fine, so let's not throw it all away just because you have a problem with software patents.
  • Was it the part about doubling their staff?

    Was it the part about "more and better information"...

    "We have to get more and better information and make sure the examiners have the right tools and information to make the best decisions."

    ...where the "more and better information" consists of assertions by applicants?

  • Favorite Quote FTA (Score:5, Informative)

    by paladinwannabe2 (889776) on Wednesday February 28, 2007 @04:39PM (#18186664)

    With the more open environment, companies and individuals could more easily game system, loading up examiners with more and more information from friendly or unfriendly parties. "We certainly can't allow having more information come in and harrassing the applicant, and we can't hold up the timing of application processing," Dudas said.

    Because when you're trying to get a patent approved, the last thing you need is people pointing out the prior art, or people double checking your 'facts'- those things are harrassment and hold up the timing of application processing!
  • On July 31, 1790 Samuel Hopkins was issued the first patent for a process of making potash, an ingredient used in fertilizer.

    It was all about bullshit then, and it still is.

  • Drug Patents (Score:4, Interesting)

    by TheWoozle (984500) on Wednesday February 28, 2007 @04:45PM (#18186750)
    While we're at it, maybe we can also deal with one area where patents work *too* well: drug patents.

    The problem with drug patents isn't that they stifle innovation: it's that they encourage the *wrong sort* of innovation. After the patent on a useful and effective drug expires, it is quickly manufactured as a generic and profitability drops (which is exactly what the point of a patent is in the first place). Great.

    The problem comes in when drug companies spend their R&D on creating new drugs that treat the exact same conditions as already existing drugs - just because they'll have another patent and therefore another (however short-lived) monopoly on the drug, which equals large profits.
  • The fact that the Triad and Yakuza are modelling themselves on our proven practices shows that we just need to be having a debate about how we can better... "protect"... our "customers".
  • Misleading Summary (Score:3, Interesting)

    by servognome (738846) on Wednesday February 28, 2007 @04:55PM (#18186892)
    The summary implies maintaining status quo, when really what is being stated is maintaining the framework, with tweaks to improve the process. Patents are not broken, the system for issuing them is.
    From reading the article there are many benificial changes that are being looked at. The most important IMHO is more open review:

    Allowing third-party information to be contributed to patent cases is another of the area of improvement at the front end. "We want to give third parties the opportunity to give information to the USPTO," Dudas said, "so the examiner has information from their own research, the applicant and from third parties. When examiners have all information, they almost always make the right choice."

    • by QuantumG (50515) *
      Patents are government issued monopolies... that's more than "broken", that's wrong.
      • Re: (Score:3, Insightful)

        by servognome (738846)

        Patents are government issued monopolies... that's more than "broken", that's wrong.

        Why? Just because it's a monopoly that equals evil? Government issued monopolies can have a place. They reduce risk to encourage investment. Profit motive spurs investment, and investment accelerates development. The key idea of patents is allow an inventor reasonable time to be profitable so they will invest.

        The patent system is hurting innovation now because it hasn't adjusted to take into account faster development

  • by Anonymous Coward
    What is it about the word "broken" that the head of the Patent Office doesn't understand?

    The patent system is broken. Consequently, the numbers that he's using to justify the existing system are totally bogus. You can't measure the stifling of innovation by using a broken system. You need a completely different approach.

    Software used to be a highly innovative field back in the 1980s. Anybody could develop a new software system out of their house and become millionares. In fact, many people did, and we have
  • Instead of trying to fix it in the patent office (which would be near impossible, although it would certainly help) I think the system would be better fixed in the courts. Just pass legislation that says "If a patent holder sues an alleged infringer for $X and loses, the winner is entitled to an award of $X from the loser."

    This would automatically place a reality check on the award amounts, and even reduce the number of patent cases brought into court in the first place. It'd be like betting on your odds of
  • I have traveled around the world, and every nation is thinking how it can model [intellectual property governance] after the U.S,
    Well, yes. One might take into consideration, though, that the USA has promised to hurt them badly if they don't.

  • He's wrong... (Score:3, Insightful)

    by Eric Damron (553630) on Wednesday February 28, 2007 @06:08PM (#18187856)
    The fact that patents on software hurt innovation is EXACTLY right and should be the way to frame the discussion.

    "It's a proven system, over 200 years old."

    Unfortunately wide spread computers and their programs are a relatively new phenomenon. The fact that the patent system is 200 years old should be your first clue that it may not work for such a radically new and different set of circumstances!

    You sir are a moron... Oops... Strike that last sentence... (Damn and I was doing so well too!)
  • The US patent office is, for all extents and purposes, a free enterprise one that decidedly wants to nuture a market for patents and increase patentability across all areas, including absurd contexts like ideas (software, musical forms, literature forms). A software patent isn't a monopoly on a design, it's a monopoly on an idea, you don't even need to implement the 'invention' in the US patent system; Legal shops are incrasingly responsible for software patents, they probably don't even need a programmer o

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