Patent Office Head Lays Out Reform Strategy 253
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.'"
Try recent evidence maybe? (Score:5, Interesting)
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?
Gamasutra and per-patent fees (Score:5, Interesting)
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.
Re:Gamasutra and per-patent fees (Score:4, Interesting)
Re:Just a few things (Score:1, Interesting)
(jeeli nie wiadomo o co chodzi, to chodzi o pienidze) - if you don't know what it's about; it's about money. Wise old Polish saying. If a bit cynical.
Drug Patents (Score:4, Interesting)
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.
Re:Just a few things (Score:4, Interesting)
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
Re:Try recent evidence maybe? (Score:4, Interesting)
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.
Misleading Summary (Score:3, Interesting)
From reading the article there are many benificial changes that are being looked at. The most important IMHO is more open review:
This dude just doesn't get it. (Score:2, Interesting)
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 those companies around today (let's see, Microsoft is one).
How many are happening now? Darned near 0. That's because anybody who comes up with a successful product is guaranteed to be sued as soon as they get some money in their pocket. Or if they look like they are remotely a threat to an existing big company. Unless, maybe, you get Venture Capital; but even if you do, you're going to have to spend a good chunk of that money on lawyers, and not developers.
This is not how to encourage innovation. This is how to discourage it. Heck, I doubt you could even build the Internet again today, because instead of the open RFC process you'd have to worry about some clowns promoting things based upon submarine patents (ala Rambus).
The head of the Patent Office just doesn't understand reality. He's completely out of touch with what's going on. We need help if we're ever going to restore innovation to the marketplace, and because this dude thinks things are OK, we're just not going to see innovation restored to the software field any time soon. And probably not even in our lifetimes.
Let me tell you what I know... (Score:5, Interesting)
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?
Re:Just a few things (Score:4, Interesting)
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
Re:Just a few things (Score:5, Interesting)
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
Re:Hardware is't really that different (Score:4, Interesting)
Re:Just a few things (Score:3, Interesting)
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 R&D. Generally speaking I think people agree that having new and better drugs is a good thing.
Now, today pharma tells us what their molecule (and their process) is and the minute it comes off patent a generic is there to supply it for cheap. This is also a good thing, (putting the limited in limited monopoly) but the reason that generics can make the drug cheaper than big pharma is that they don't have to pay for R&D. Even if pharma kept the molecule a secret it would take a chemist specializing in structure elucidation, a process chemist, and a process engineer maybe a year to figure out how to make it. So big pharma spends 7-10 years employing hundreds of people finding developing and testing hundreds of analogs and tens of millions of dollars on animal and clinical trials only to be under-cut in a year by less than a dozen people doing reverse engineering.
I would say that drugs, engine parts, and hardware are similar as far as patents go in that it is far easier to figure out someone else's idea than come up with your own - which would cause R&D departments across the country to shut down if there were no patent protection.
I think patents are a good idea, but also that the patent system is broken.
Re:Just a few things (Score:5, Interesting)
Really? I was under the impression that patent law was intended to protect intellectual property. In the same way that real estate law is intended to protect greographical property.
Patent law may be this way or it may not be, however patents themself are meant to encourage progress:
USA Constitution:
Section 8 - Powers of Congress [usconstitution.net]
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
Thomas Jefferson [wired.com] was originally against patents but then his friend James Madison [kuro5hin.org] convinced him patents could encourage progress. Once convinced Jefferson sat down with an actuary table and calculated a patent term of 14 year with one 14 year extension possible was the optimum length they should last.
FalconPrior Art Consultation (Score:2, Interesting)