Patent Office Admits Truth — Things Are a Disaster 278
An anonymous reader writes "For years the US Patent and Trademark Office has published data to show how well it and the patent system were running. Under new leadership, the USPTO has begun to publish a dashboard of information, including a new look at questions like how long does it really take to get a final answer on whether you will receive a patent or not? The pat answer was, on the average, about 3 years. But with the new figures, it's obvious that the real number, when you don't play games with how you define a patent application, is six years. The backlog of patents is almost 730K. And the Commerce Department under the Obama administration wants the average down to 20 months. How does this happen? Only if everyone closes their eyes and pretends. It's time to take drastic action, like ending software patents. As it is, by the time companies get a software patent, there's little value to them because, after six years, the industry has already moved on."
Big Software Corps (Score:2, Insightful)
Re: (Score:3, Interesting)
I haven't heard any allegations of this before. What leads you to think this problem exists at the USPTO?
Re: (Score:3, Interesting)
The only applications which will skip forwards are accellerated cases and continuations/divisonals. There has been a big push within the office to have each examiner work on their OLDEST cases to reduce pendency figures, in fact examiner's ratings depend on it.
Re: (Score:2)
Sounds like they'll be hiring a lot of engineers soon, to process that backlog of patents. Time to send your resume, if you don't mind living in the VERY expensive DC area.
Re: (Score:3, Interesting)
The question is also if the pay is enough to get good engineers or they only can get fresh engineers from education.
Re:Big Software Corps (Score:5, Insightful)
Re: (Score:3, Informative)
While there was a case a few years back where someone was dipping into customer deposit accounts [doc.gov], I've never heard any reports of examiners being on-the-take to process an application in a certain way. If you've heard something different, feel free to enlighten us.
There is something called a "petition to make special" [uspto.gov], which in some cases requires a fee, but this is specifically authorized by regulations.
In fact, there are various mechanisms (performance metrics and docketing, both for examiners and their
Re: (Score:2)
This was your big opportunity to throw FIFO out there and you blew it.
Re: (Score:2, Insightful)
This is sickening. No, not your allegations. The fact that people think like you do is sickening. You know absolutely nothing at all about the patent system, and yet you attribute this mobster mentality to it. You are simply the lowest of the low. I won't even post this anonymously.
There are mechanisms to expedite patent prosecution which are beyond your understanding, because you will never bother to research them. These are given, for example, in cases of advanced age of one of the inventors (the on
Re:Big Software Corps (Score:5, Interesting)
So, extending this distrust to all government agencies is a natural thing to do, whether it is true or not. Try bribing a policeman - a large percentage of the time, you'll end up in jail. Try bribing a politician... oh, wait.
The patent system is made up of scientists and engineers, and the attorneys all have these backgrounds as well.
If that is the case, then why do they mess some patents up by not seeing prior art? Yes, mistakes happen and I suppose there is a process to work it all out. But while that process is rolling, the patent holder is out there drying up the coffers in attorneys fees of all potentially infringing users.
Re: (Score:3, Interesting)
oh please. I was a police reporter in a 100K city for several years and got to know cops. I once sat around in the station and heard these guys trading stories about getting sexual favors from females to get out of speeding tickets (they didn't know I was in the next room, obviously). I guarantee you, policemen are bribed every day around the country with no repercussions.
Re: (Score:3, Interesting)
Yeah, and I heard the same stories in my high school gym locker room. And they're probably just as accurate. Wishful thinking does no
Re:Big Software Corps (Score:4, Insightful)
The problem with your argument is that in many cases the government has given us a multitude of opportunity to be suspicious of it. There has always been a distrust of government in the US.
So, extending this distrust to all government agencies is a natural thing to do, whether it is true or not. Try bribing a policeman - a large percentage of the time, you'll end up in jail. Try bribing a politician... oh, wait.
I appreciate a healthy distrust in government. I in no way advocate trust in government, or in anyone or anything in particular. But there's a big difference between being skeptical and inflammatory without any reasonable basis. It's an issue I take to heart in the legal profession, when I see baseless accusations of fraud (or inequitable conduct in patent law, fortunately not first-hand) made without consideration of the damage it does.
And if the assumption is that everything the government does is tainted with fraud, then there's no hope you could ever do anything to fix it. Nor will the government ever be able to prove clean hands.
If that is the case, then why do they mess some patents up by not seeing prior art? Yes, mistakes happen and I suppose there is a process to work it all out. But while that process is rolling, the patent holder is out there drying up the coffers in attorneys fees of all potentially infringing users.
Well, first, there's no obligation to search prior art by anyone other than the examiner. Some very diligent clients do ask for a search, and the patents that emerge from that practice are usually downright bulletproof. But it's expensive, and with no other obligation not many people are willing to pony up. A start-up would rarely want to spend several extra thousand dollars to do a search.
Second, as a patent practitioner, it should be obvious that not being in the trenches day-to-day in the precise technical area of the inventors I work with (and the technology space is *vast*), I personally won't know off-hand if there's something else out there. Generally, the inventors would have the best idea of what's going on with the competition. And while there's no obligation to search, there is an ongoing obligation to the duty of disclosure, which means if anyone involved with prosecution of the patent (inventors, in-house counsel, myself, etc.) is aware of something relevant, it must be cited.
Third, there is a resolution process, and it's called reexamination. You don't have to litigate a patent to invalidate it, you can pay a fair fee, file your paperwork, and tell the PTO what they screwed up. This procedure has been available forever, and is vastly underused.
The patent office is working diligently on the quality problem, with pilot programs to obtain input from the general public, experts, and so on. Measures have been proposed to require searches. It's all on the table.
We all know what is and isn't broken. And even as a patent practitioner: I hear you guys and feel your pain. But, as with everything, there's a right and wrong way to go about fixing problems, and so it's frustrating to me to see the problem dismissed as *fraud* with a +5 vote on what should be a website for technical thinkers and problem solvers.
Re:Big Software Corps (Score:5, Insightful)
You mentioned earlier that the you are puzzled as to why so many people within the software industry itself want to do away with software patents followed by an unsupported dig at those obviously uninventive and uncreative people.
how the answer isn't obvious to you boggles the mind but lets assume you've never made the slightest effort to understand the culture in the software industry nor made the slightest effort to understand the nature of writing software.
the culture was shaped in decades past by hordes of the kinds of people who are willing to sit on their own reading manuals all night long, this leads to a certain bias towards the little guy
1:
Anyone can do it, that's one of the best things about software.
if you have a working brain you can create useful software.
Most of the time no factories are needed, no massive capital, just enough for a cheap laptop and cost of living for a few months.
Patents being stupidly expensive to obtain are as such nothing but a barrier to entry to the small time programmer.
I could live for a year on the cost of pushing through a handful of patents.
2:
It's utterly impossible to avoid infringing on at least some patents if writing any large piece of software and unless you happen to have a legal department and millions of dollars there's no way to be sure.
And I can never know for sure, if I create something useful and give it away free out of the goodness of my heart or sell it I could wake up to a lawsuit that could cost me everything I own.
And there is absolutely nothing I can do to protect myself other than to not create useful things and not sell them or give them away.
Does the patent office offer any system where for a fee that wouldn't cripple a normal person working a normal job I can submit my code to be compared to existing patents and receive a list of all patents I'm infringing and also receive complete immunity from any claims from the owners of patents not listed?
If it does I'll happily remove this complaint.
If it does not why am I expected to be able to do what the patent office cannot do itself?
3:
Programming attracts maths geeks to whom programming is merely an extension of mathematics, the mere idea that you can patent doing a certain type of calculation is absurd to them.
4:
At the other end of the scale programming attracts artists (who can oddly overlap with the above) who view a piece of software like a piece of music, to them patenting a particular algorithm is as absurd as patenting writing a piece of music in 4½/4 time.
5:
The software industry is distributed.
In a centralized industry like auto-mobile manufacture where there's a handful of really big companies, expecting each one to have a legal department which can wade through the recent patents in related areas is somewhat reasonable.
Expecting every developer in the world to keep track of every patent is absurd.
Especially when they can get fined triple the amount for trying to do that kind of research themselves and failing.
which effectively forces you to work for someone else if you're poor or hire a legal department if you're not.(which also fosters feelings that it's just corruption and lawyers making utterly useless and wasteful jobs for other lawyers)
and many many other reasons which other slash-doters will berate me for not including.
Your snide and insulting remark that the programmers who complain about software patents are the uninventive ones only displays your complete and utter ignorance of the issue.
Some of the best and brightest minds in the industry including Knuth http://www.pluto.it/files/meeting1999/atti/no-patents/brevetti/docs/knuth_letter_en.html [pluto.it] (who quite literally wrote the book on algorithms) and John Carmack( Ask a gamer if you don't recognise the name, recently moved into rocket science after reaching the top of the field in graphics engine programming and getting bored) are opposed to patenting algorithms and software.
Re:Big Software Corps (Score:5, Insightful)
Are you saying software simply can't be inventive?
Not at all; software can be marvelously non-obvious, novel, inventive, useful, etc.
The problem isn't software per se, it is the software industry, and frankly, it's not really a problem, either.
Patents are intended to promote the progress of the useful arts. This is accomplished by encouraging inventors to invent, disclose, and bring to market, inventions which are useful, novel, and non-obvious, when they would otherwise not have done so, for the least cost in terms of restrictions upon the public. However, we know from history that some inventive activity will occur even in the absence of patents as an enticement. That, then, is our baseline. Whether or not any particular patent system is efficacious can only be measured by whether or not it encourages more invention, disclosure, and bringing to market than would occur if it did not exist (and remembering to take into account that in the absence of a patent, it needn't be the same person to do all three of those things), where the benefit of those things is not outweighed by the cost to society of burdensome monopolies. Likewise, alternative patent systems and reforms to the law may be compared by weighing them against each other in the same manner: the best is the one that produces the most public benefit for the least public cost.
This more or less works fine for many inventive industries. But software is an odd duck.
It seems very likely that the amount of invention, disclosure, and bringing to market that would happen in the field of software in the absence of patents is just as great, or perhaps even greater, than under the current patent system. That is to say, granting patents in this field may actually be harming the progress of this useful art. That's directly contrary to the purpose of patents. After all, there are great incentives to, and low barriers for, the invention of new software, and for bringing them to market. And often the interesting part of software is easy for those skilled in the art to discern without the disclosure requirement. The infamous One-Click patent tells you everything you need to know in the name, for example. Everything beyond that core idea are just implementation details that any PHOSITA can manage.
So why are people -- especially those in the industry -- opposed to software patents? It's not because they don't think software is inventive. It's because they think that the patents are a drag on the industry. That they're pointless at best, and actively harmful at worse. And comparing us to our foreign rivals who lack these patents seems to confirm this.
It isn't inevitable that this has to be so; perhaps someday in the future, natural incentives to inventors in the software field may decrease, and the added artificial incentive of patents may be very useful in keeping things going. But until that happens, we really ought to abolish patents in this field, since they are apparently not able to do their job.
Re: (Score:3, Interesting)
The infamous One-Click patent tells you everything you need to know in the name, for example. Everything beyond that core idea are just implementation details that any PHOSITA can manage.
While I disagree that One-Click is a proper example, even if it were, your follow up only agrees with what I'm saying. You feel software patents are acting to our detriment because of examples like these where any PHOSITA ("person having ordinary skill in the art," for those of you just joining us) could come up with the details. That anyone faced with the problem of constructing a system to quickly place an order would have the solution just smack them upside the head.
If that really is the case, then the
Re: (Score:3, Interesting)
``the flaw is again not with software patents per se, but with the obviousness standard used to evaluate them''
I can accept that. If the standard of obviousness is such that the bright minds in the industry can read the patent and go "Wow! Brilliant! I would never have come up with that!", then it would seem the patent system is serving its purpose of furthering innovation. On the other hand, perhaps that makes it a losing preposition to the patent holder: they paid for a patent on something that nobody els
Re:Big Software Corps (Score:5, Insightful)
Well, setting aside the goal of disclosure, I think that if no software patents were granted, you'd see just as much, if not more, inventive activity and bringing to market. The natural incentives in this field are so great that there's no need for the artificial incentive of a patent, especially given that the negative effects of patents would probably harm the software field, no longer being outweighed by their positive effects.
Disclosure is desirable, but I suspect that in most cases, software is easy enough for a PHOSITA to inspect and reverse engineer that the benefits of disclosure by the inventor would be fairly minimal. (Especially if we were to make much-needed copyright reforms that mandated putting complete and well-documented source code and other supplementary information in the Library of Congress as part of a revitalized deposit requirement) The one-click patent wasn't obvious except in hindsight, IMO; I raised it because it is a good example of disclosure not being enough of a reason by itself to continue to have software patents.
So if you'd have invention, and bringing to market anyway, and disclosure largely takes care of itself (along with some copyright reforms), what benefits are we getting from software patents that we couldn't have otherwise? Likewise business method patents. I realize that this might reduce 'breathing room' for small inventors in the software field, but I think that the advantage of being first to market, combined with trade secrets, NDAs, etc. to protect against unscrupulous business partners, is probably adequate. In any event, I'm prepared to take a chance on it.
Re:Big Software Corps (Score:5, Insightful)
I'm not going to criticize your knowledge of the patent system and process, because obviously, as a practitioner, you are obviously more knowledgeable than I.
What I will criticize is your bias as a legal professional.
What I find most interesting is that its biggest proponents [of getting rid of software patents] are people within the software industry itself
What I find interesting is that the biggest proponents of the current patent system are not industry professionals, but patent attorneys. I consider that damning evidence of who truly benefits from the patent process.
I think you're missing the perspective of industry practitioners, but not the ones you tend to meet in your career--the relatively small group who were told by their company to apply for patents on anything and everything they can think of. The vast majority (I claim) of software developers are not interested in "protecting" their toolbox of clever little three-line inventions, and just want to get on with be inventive without worrying about walking through a mine field.
The flaw is with a lack of a rigorous model for determining what is and isn't obvious; the difficulty of truly understanding, without hindsight bias, what the level of ordinary skill in the art is.
I definitely agree with this assessment, however you left out "conducting an honest and thorough search for prior art". Perhaps you can educate me about how rigorously companies search for prior art that, if discovered, would ruin their chances of profiting from their patent submission. Or how rigorously attorneys conduct these searches, that if successful, would cut short the process (along with their hourly fees). Or how thoroughly and carefully the patent office conducts these searches, with 3-6 year backlogs and pressure to cut those backlogs drastically.
I submit that we have the mess we do because there is no force anywhere along the process that would motivate any of the involved parties to deny a patent.
Re:Big Software Corps (Score:5, Insightful)
Self-interest is natural. It's totally understandable to want to protect one's profession. It makes total sense that by and large, the only vocal supporters of our patent system are attorneys and large firms that hold war chests of patents.
As a software professional, patents are detrimental to my livelihood. I oppose them pretty much across the board (including non-software patents). It's a self-interest-based position as much as it's a moral position. People should be allowed to innovate and invent without fear of walking through a mine field. You don't deserve exclusive right to make something just because you happened to file some paperwork first. These are opinions based on my morals and based on my desire to be able to go to work every day.
If patents disappeared tomorrow, people won't all of a sudden stop inventing things. The motivation is always there. There's so much profit in bringing to market novel inventions--with or without patents. As evidence look at the number of profitable companies that hold no patents. What WOULD stop overnight is companies using their war chests and lawyers (rather than their smarts) to bully other companies out of the market. And before you suggest it, I believe the societal "disclosure" benefit of the patent process is overblown in this day and age. Society no longer needs a government patent list to figure out what the latest advances in science and technology are and build upon them.
Re:Big Software Corps (Score:5, Insightful)
The patent system is made up of scientists and engineers,
I have seen patents which would call that into serious doubt.
What I find most interesting is that its biggest proponents are people within the software industry itself, but usually not the real innovators.
And how do you judge whether or not they're "real innovators"? Let me guess, by how many patents they've filed?
Are you saying software simply can't be inventive?
Hardly. In fact, the problem seems to be largely that patents are holding back inventions. From the patents which currently exist, there is simply no way for me to avoid infringing on someone's patent and also write any software at all, without an army of patent lawyers to dig through all those patents and tell me what not to write -- a process which would significantly slow innovation, if indeed I could write anything new at all.
As it is, the way large corporations seem to handle this is to file their own patents as fast as they can, so that when (not if) they infringe on someone, there's hopefully enough mutual infringement that they can work out a licensing arrangement. It is, in other words, a sort of software MAD.
What I find truly disgusting is that software patents, unlike copyrights, can be vague enough that I could legitimately invent something, in a cleanroom, without being aware of the patent I'm infringing, and be hit with a patent lawsuit for some mathematical truth I end up using. That's right, it's not just invention, but underlying principles of the universe which are protected here.
And that's a worst-case scenario -- but what if I want to support something for the purposes of interoperability? Consider H.264, and tell me HTML5 video is not innovative. Tell me Firefox is not innovative. But because of the patent issues surrounding H.264, Firefox refuses to support it, and certainly, if they were to implement it themselves -- even if they wrote their own decoder from scratch, without looking at any of the code for the official H.264 decoders -- they'd still be in violation. It's not terribly hard to find similar examples where, only because there weren't sufficient patents (or because companies chose not to enforce them), we have interoperability -- would OpenOffice be where it is today if the Microsoft Office formats were patented?
Stop for a moment and consider what the world would look like if web standards were patented. If HTML, CSS, JavaScript, and so on could only be implemented by those willing to pay a licensing fee to a central authority. If any third-party re-implementation of TCP/IP would likely result in a lawsuit. Would you really want to live in such a world?
Well, you're a patent attorney, so don't answer that. But why should any sane person who is not a patent attorney want to see HTML patented?
So the inventors can be rewarded... really? Do you really think Tim Berners-Lee has received no rewards for his efforts?
That you can't possibly think of something in software that anyone else couldn't have thought of, even given the exact same problem set?
That's sometimes a good idea, but not always. Because Adobe either doesn't have patents on PDF, or doesn't use them, people can send me documents and expect me to be able to read them with any of a half-dozen PDF readers I have, and I can expect to be able to work with them -- chop them up, rearrange them, print them, and so on. Certainly, there are other ways of solving the same problem, such as PostScript, but that doesn't decrease the problem -- if some people can read and write PostScript, and others can read and write PDF, we can't communicate, no matter how "innovative" one of them might be.
Also: Why would you want to force people to reinvent the wheel? One of the largest problems in software today is NIH syndrome, and you want to increase that? Seriously?
The reality is that we d
Re: (Score:3, Insightful)
Dude, you are a patent attorney. That is as low as it goes.
And, regarding parent's comment, let me put it this way: Corruption is everywhere. Your job description is corrupt by definition. There is a simple service that should be granted to any citizen, but we put a shitload of complex bureaucracy in the middle so that you have to hire a guy that does nothing but understand that stupid system (a fucking lawyer). The more you spend in lawyers, the better they'll play the system to get what you want. No money
Re: (Score:3, Insightful)
I work in a profession that, when functioning correctly, fosters innovation. I have no qualms about it.
You are in it because it pays well. Just like every other lawyer. Don't pretend that you have principles. And it doesn't foster innovation. It stifles it. That's why so many of us are against patents. The system only protects large corporations from smaller companies without large patent portfolios to trade. I wonder if there has ever been a single inventor whose invention has been protected by getting a patent. Maybe there have been some cases, but nowadays it almost never happens. I would never bother to
Re:Big Software Corps (Score:4, Insightful)
Tim Berners Lee? John Carmack? DONALD FREAKING KNUTH? These people aren't innovators? REALLY?
Hell, if anything, software shouldn't be patentable because Knuth probably already published the damn algorithm 30 years ago!
No, what I'M saying is that math shouldn't be patentable. Anyone who says otherwise is probably a patent attorney or an MBA, not a Computer Scientist.
Stop expecting me to support a system that directly threatens my very livelihood. Carving up portions of a domain of math and saying that use of them without a license fee is illegal is disgusting. It's even gotten to the point now that MPEG-LA triumphantly claims that no one can create any video codec without infringing upon their patents. How is this encouraging and protecting innovation? It's actively preventing it!
Re: (Score:3, Insightful)
I ask these questions very seriously:
Do you really believe that a potential patent (and the potential stream of money said patent would supposedly generate) is actually a motivating factor for these innovators?
Do you really believe that it would be possible to - within a reasonable time frame - design and implement a mechanism for awarding these patents where the overhead of the process is so small that more innovati
Re: (Score:2)
That six year backlog doesn't seem to apply if you have enough money to grease the proper hands so that your patent magically seems to get processed faster.
What an absurd and baseless accusation. The patent process is an open book. You can see virtually every communication between examiners and applicants on Public PAIR [uspto.gov]. The USPTO is an extremely transparent organization. If there were any evidence for such corruption, there are no end of legal academics who would pounce on the opportunity to expose it
Not true (Score:5, Insightful)
The true value of a software patent isn't to protect an invention. It's to have a tool for extorting others. In that sense software patents have a shelf life much longer than six years.
Re: (Score:2)
harsh words - but true. Most companies that get software patents eventually make their money on licensing the patent and not necessarily bringing it to market themselves - but in all "fairness" if someone had the idea first then why shouldn't they get some benefit from it ?
Re:Not true (Score:5, Insightful)
Seriously, why should they? I've yet to see any sort of justification for why an idea (as opposed to a product or an implementation) should be rewarded.
The closest I've seen ran along the lines of "that's the way the system works now, so that makes it ok", which doesn't really help very much.
Re: (Score:2)
They DO benefit from it. If Adobe puts a new image processing trick in Photoshop, then Photoshop is the only software that has it. PS isn't open source, so if they don't want to disclose how they did it, the only way to understand how they did it is by being actively involved in image processing research areas of mathematics. By the time someone else comes up with the same or a similar trick in Gimp, or something, Adobe will have already benefited from their idea -- assuming that they were business-smart an
Re: (Score:2)
The idea behind patents is to protect & reward those individuals (or companies) that spend time researching and developing a product. Think about this scenario: Company A spends 10 million making a butt-scratcher that whitens your teeth and bathes the dog. They build a bunch and sell $5 million worth of the device. Company B sees this poochy-whitening-ass-scratcher and slaps their own together for 1 million. They turn around and sell $5 million worth too. The end result is that Company A, the "inventor"
Ideas are a dime a dozen (Score:4, Insightful)
Because phrases like
"Ideas are a dime a dozen. People who implement them are priceless" - Mary Kay Ash
"Invention is one per cent inspiration and ninety nine per cent perspiration" - Thomas Edison
sound better than "first come first served".
Re:Not true (Score:5, Insightful)
Again, patents should not _at all_ be awarded for having ideas. Ideas are cheap. Everyone has ideas. Its the concrete implementation of a idea what makes it valuable to other people, because its basically its showing them "HOW TO", so rewarding implementation-producers with patents is a net win for society.
It becomes a net loss, however, when you dont reward them for producing smething of value, but, as you suggest, for merely being the first in producing something everybody else also can easily come up with, but just hasn't. By rewarding people merely for "being first" and not for hard work, you basically encourage an patent run where people put more effort in searching for patenting possibilities than putting in the work inventing great but hard stuff. You encourage canny lawyers instead of tinkerers and engineers. Which then again makes it even harder for the tinkerers and engineers to produce real, tangible stuff, because they have to route around all the obvious, but legally "protected" patent hurdles.
By encouraging patent trolling, i.e. "i patented this shit first, now pay me, mwahaha!", you also make investments in patent trolling more valuable, so more and more people will invest in trolling and less ans less in actually doing the work inventing stuff because of the obvious lesser returns. Its a vicious circle.
But why though? What's the consequences? (Score:4, Insightful)
but in all "fairness" if someone had the idea first then why shouldn't they get some benefit from it ?
Because it isn't "fair", whatever that should mean? Neither is it supposed to be the reason for the patent system in the first place.
The test for non-obviousness was supposed to make patents innovative beyond mere ideas, ie. full documentation of implementations which otherwise would be lost in trade secrets and obfuscation. However, non-obviousness tests are seldom used for anything else than delay a certain application, until it is reworded enough to be granted. This makes sense to the patent office and state, which earns Big Money from granting a mind-numbing number of patents each year. It also makes sense for huge mega-corporations, because they get defensive and offensive patent portfolios to squash lesser competitors with. It even makes incredible sense for patent-trolls, as they can push/buy up patents from dying companies, and extort money, without risking anything themselves, as they are producing nothing of value themselves, only sue successful businesses through courts out of the remains of dying businesses..
This all works splendidly on the cost of everyone else: inventors who are restricted in arbitrary fashion and customers who are forced to buy inferior products at exessive prices. It makes any business a risky operation, because at any time, you can be sued into oblivion, despite otherwise successes in the marketplace. Thus, the state monopoly-granted patent system works against the free market.
If it was "fair", then if someone has an idea, they shouldn't be sued into oblivion when implementing their idea as a business or "free software", just because someone "thought of it first", which is not even proven beyond any reasonable doubt. If everyone gets the same idea, or if the patent is just a physical process translated into the world of computers and software, then it shouldn't be patentable at all, since it is an obvious invention, a natural evolution of software to scratch an obvious itch.
Of course, only big corporations have the money to build a huge patent portfolio, and then use it as a defense mechanism, or even aggressively attack GPL, BSD, open source and free software. You can bet your sorry ass, Mozilla Firefox, Linux and most complex software out there, already violates hundreds of patents. It's just because of bad PR, the dogs have been kept in leash, but we remember SCO, and it is not far-fetched some dying corporation with real ownership of patents, could go for licenses instead of competing in the marketplace.
Just because nobody has patented it yet, doesn't mean nobody has thought about it. Just because nobody has started doing business around it, doesn't mean there are 20 competitors working on it already. Patents usually just gets in the way and squash the little inventor trying to do business themselves. They then have no recourse but to find a huge corporation sugardaddy to implement their idea at all.
Patents were never supposed to cover ideas themselves, but certain implementations thereof. The problem with software, is that copyright already protects software, so there if you're going to cover something more, you need to rape your constitutional forefathers, as USA, land of the "free", is doing now.
Evolution, will sort itself out though. USA will go bankrupt into its own corruption, greed, war-mongering and neglect of the environment and its own citizens. Somewhere, in the free world, some country will ignore software patents, and through that gain competitive advantage.
Not just the PTO's fault (Score:5, Insightful)
You know, if people would claim only what they've fucking invented on patent applications, that backlog would be much smaller. Way to go, jerkoffs.
Re:Not just the PTO's fault (Score:5, Funny)
-A rock you put on your BBQ grill, then cook the steaks on your hot rock.
-Converting propane tanks into makeshift bomb shelters but cutting off one side and climbing inside
-A penny jar that had engraved markings on the side to tell you how much money you had (approx) if you only put pennies in it
-A cotton ball wrapped in string that you could light on fire with lighter fluid and 'play' with
And my personal favorite:
-A handshake machine, its just a mannequin arm that moves up and down on a small motor (the drawings made it look REALLY like a handjob machine)
Re: (Score:2)
Re:Not just the PTO's fault (Score:5, Informative)
On a side-note, I want to clarify that all of those items listed did not get formal paper-work submitted to the Patent Office. If they did they I would not be able to talk about them here or I would be in violation of my previous contract. There are a lot of ridiculous ones that went against my advice and filed anyways.
Re: (Score:2)
Only if they were stopped by someone like me, explaining to the person why they can't submit this patent. The PTO takes every application seriously which is both a wonderful and horrible thing, until it can be proven un-patentable or that it infringes on an earlier patent. This is done through a semi-long process of research that isn't always done correctly (because of the sheer magnitude of searching for similar patents or parts of similar patents).
My opinion: The burden of proof ought to be on the applic
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I doubt that.. recall James Gosling talking about how he and colleagues at Sun had a competition to file the most ridiculous patent applications? He "invented" the light switch, and he says it was pretty dull in comparison to the others.
Re:Slapping machine (Score:3, Funny)
And my personal favorite:
-A handshake machine,
?? I prefer the slapping machine:
http://www.youtube.com/watch?v=8chY78oBcWM [youtube.com] (move to 3:50)
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-A handshake machine, its just a mannequin arm that moves up and down on a small motor (the drawings made it look REALLY like a handjob machine)
Did they happen to include a working prototype?
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Or the opposite, if you forget to empty it first.
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No determining if someone is being a jerkoff is part of the USPTO's mission.
Though their current admission strikes me similar to a guy coming out as gay to his parents years after his mother started introducing him to nice boys.
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Though their current admission strikes me similar to a guy coming out as gay to his parents years after his mother started introducing him to nice boys.
I'm trying to understand your analogy and failing. Is there something wrong with being gay, and/or can one be made gay?
I think a better analogy would be someone who has a house with a leaky roof. Initially, he figures the dripping water in the kitchen when it rains is just a minor inconvenience and nothing more. Then one day it hits him that it's also causing structural damage.
Software Patents (Score:2)
He had part of the answer in there: "drop technologies like software patents"
not my experience (Score:5, Informative)
I have 3 fairly recent patents (one hardware and two software) - none of them took over 3 years - and two of them took multiple rounds with the patent office
Nothing personal, but... (Score:2)
I have 3 fairly recent patents (one hardware and two software)
Do you have a reasonable expectation that the software patents will only be used for defensive purposes?
(If not, do you believe that software patents are a good idea?)
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We do actually build products that use the software process we have patented - but there are several other companies that also use techniques that could be considered infringement. I suspect that some day if it was tactically advantageous my company could seek licensing fees - The software patents that I am named on are incredibly well written and there are some big companies that we could take to task -
Re:Nothing personal, but... (Score:5, Insightful)
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what we patented was pretty ground breaking back before 2000 when we started working on the idea (out of need) it even seems "obvious" to me now :-)
http://www.google.com/patents?id=fQOZAAAAEBAJ&printsec=abstract&zoom=4#v=onepage&q&f=false [google.com]
I include the link to one of our patents(for some reason Google Patents still has it as an Application - but it has been awarded)
If you read it, the companies and applications doing this today are somewhat obvious
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I skimmed the patent, and it looks like a standard troll patent. I see "may", "various", "and the like", and the classic "display device". Lots of ideas, but no actual technology.
If this is a typical software patent, I see the problem is much worse than I feared.
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If you aren't bothering to defend your original idea (give the man a cookie!) then what was the point of applying for the protection in the first place? Just in case someone else stumbled onto the same obvious idea? Sorry, but I do think your idea was pretty obvious. Actually implementing it would certainly represent progress, but trying to prevent others from doing so? For some reason your company hasn't done that. What if patents were like trademarks, where you lose them if you don't defend them?
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You only think you could take them to task. If you actually tried they would point out the hundreds of _their_ patents that you were violating, by the end you'd likely be happy if they didn't shut you down.
This is how the current patent system fails in the software realm, patents have become a kind of offensive/defensive resource in a twisted RTS.
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I believe that software patents on algorithms are a good idea - I think that a lot of software patents are bogus in that they are generalized and obvious. Like single-click purchasing or whatever it was called - that is just silly. But a patent on a new type of sorting algorithm or image processing algorithm could represent significant time and effort and IR&D dollars and should be protected
Re:Nothing personal, but... (Score:5, Insightful)
Re:Nothing personal, but... (Score:5, Insightful)
If it was about rewarding hard work, or R&D then independent discovery would be a valid defense. Its not.
Re:Nothing personal, but... (Score:5, Insightful)
Would the creation of a novel sorting algorithm (presumably something significantly faster than a Quicksort) really help in terms of attracting attention to your product, or would it be better to either publish that algorithm with the ACM Journal (giving you guys prestige and helping with recruiting new employees to you're company.... saying "come work for us where we invent cool stuff") or simply keep it as a trade secret (giving you a competitive advantage).
The largest problem I have with software patents is the business of prior art, where algorithms are patented that have already been invented or are trivial constructs that almost any software developer would have created given the circumstance. The "1-click purchase" button is an example of that.
BTW, I find that it isn't just software patents that are overly generalized but nearly all patents. This is also by design. In theory, the proper role of a patent is to record knowledge for future generations that would otherwise be lost. There are several devices and processes that we know about from history that simply weren't recorded in terms of how they were put together... or in the case of a metallurgical process what the steps were for making the items. A Stradivarius Violin [wikipedia.org] is a prime example, and those are even still in use, as is something like a Damascus Steel [wikipedia.org]. The problem with this philosophy is that I fail to see how the information given in a patent application can ever possibly be used in most cases to recreate the process.... even for somebody "skilled in the technology". I've looked at several software patents over the years and for many I would be at a loss in terms of how to recreate the algorithm that is being described. At best the patent description would only cover a class of algorithms like sort algorithms in general, not something specific like a Quicksort or Bubblesort.
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I think that a lot of software patents are bogus in that they are generalized and obvious.
I agree that a lot of software patents do seem very obvious! Figuring out what should be patentable and what shouldn't be patentable can be a very difficult question for legislators (and then for the lawyers, patent office, and courts to interpret).
What kind of metric would you suggest that the patent office and courts use to separate the too-generalized and too-obvious patents from those that should be patent-eligible?
Like single-click purchasing or whatever it was called - that is just silly.
Right, that's Amazon/Bezos's "One click" patent.
But a patent on a new type of sorting algorithm or image processing algorithm could represent significant time and effort and IR&D dollars and should be protected
Do you think that software patents produc
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I think the supposed benefits are not worth the already visible costs to society.
Companies are just using them as anticompetitive barriers or as a way to parasite off other companies actually doing stuff.
Ideas really are a dime a dozen. I can think of lots of ideas.
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Software patents? (Score:5, Insightful)
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Because you're reading it on /. ?
Re:Software patents? (Score:5, Insightful)
I have yet to meet a single "garage tinkerer" who made an invention, went through the patent process, and made any money at all much less covered the fees necessary for a decent patent attorney and the filing fees to get the patent in the first place. To me, the whole patent process is simply a major scam that gives false hope to ordinary individuals who are thinking about an invention.
It also is important for anybody to realize that once you patent an idea, that the number of companies who are interested in your idea usually goes down after getting the patent. A typical company is more interested in something that their own employees have invented, as they control the clock in terms of when it gets to the USPTO and they don't typically need to pay a license to their own employee (that is usually covered in the employment contract).
For an established company, for defensive purposes only, I do understand why organizations will file for patents knowing full well that the patent process itself is broken. Microsoft for the longest time avoided patents for a whole bunch of reasons, but is flooding the USPTO now in part to cover their own behinds. That still doesn't explain why a private individual needs to file a patent.
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I agree. Patents are of no value to the small-time inventor. They are, however, invaluable to incumbent companies who wish to lock the up-and-comers out of the market, and of course patent trolls.
In other words, patents are a pure deficit for the public who have to pay for the bureaucracy, the unnecessary litigation and the lack of competition that results from this system. The empirical evidence is piling up against patents (like this article says), and unless someone steps up and shows some proof that thi
Re:Software patents? (Score:4, Informative)
I have yet to meet a single "garage tinkerer" who made an invention, went through the patent process, and made any money at all much less covered the fees necessary for a decent patent attorney and the filing fees to get the patent in the first place. To me, the whole patent process is simply a major scam that gives false hope to ordinary individuals who are thinking about an invention.
Here's an example: Jerome Lemelson [wikipedia.org]. Individual inventor who was granted over 600 patents and made millions from his inventions. The charitable foundation he created [wikipedia.org] has given over $140 million in funding to over 63,000 student and individual inventors.
Here's another one: Robert Kearns [wikipedia.org]. The individual inventor who invented the intermittent windshield wiper. Kearns eventually recovered several million dollars from the car companies that knowingly copied his invention (and yes, he received considerably more in damages than he spent in legal fees).
Is a patent a license to print money? No. Do all individual inventors with patents profit from their inventions? No. But this has far, far more to do with those inventors tending not to have a very good business plan or, frankly, the invention not being very valuable. For further evidence, see the thousands of largely useless patents that corporations file for every year. Filing for economically unimportant patents is not limited to individual inventors, and it's not an inherent problem with the patent system.
Anyway, do you really want the government saying "no, this doesn't look important enough" to patent applicants? Why should we trust a patent examiner to be the judge of what is and isn't a valuable invention, especially when market conditions can change dramatically over the course of the patent's term?
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Those are two examples where patents kind of worked as expected, and they are rare examples because I've also yet to meet any small-timers who benefited from patents.
At the end of the day, we need to ask, are those examples the exception or the rule? Can we really justify the millions of dead-weight patents that are there only to block possible avenues of innovation, and/or are abused by organisations like Intellectual Ventures? Are patents holding back rather than enabling innovation?
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I've never met a black lesbian either. But, unlike you, I'm neither conceited enough nor self centered enough to assume that just because there are none among the people I've met (a vanishingly small fraction of the entire population of the US) that none exist.
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And then there's the full disclosure you're supposed to make. You try to recreate the damn thing, and it DOES NOT BLOODY WORK. Obviously, I'm not "skilled in the art" enough...
The disclosure is supposed to be a working embodiment of your claims. In a sane system that should be grounds for dismissing all claims in their entirety, with no opportunity for refiling/amendment. The claims would be treated like those in an expired patent, in the even that there exists a working embodiment of them.
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Because, as is usual on Slashdot, the focus is on bias and politics - not on fixing the actual problem.
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I'm neutral on the subject of banning software patents, but I think they should start by banning business method or merchandising patents...Those never should be patentable, whether it involves software or not. The ban should be retroactive and they should start weeding those out.
Why are you so vehemently opposed to business-method patents and not to software patents? In both cases one is patenting the concept of an abstract process, whether it's an algorithm executed on a chunk of silicon or it's a process for pushing around people and merchandise.
What, in your mind, is so much worse about the business-method patents?
We have to narrow "patentable subject matter" (Score:5, Interesting)
They're under-resourced, but increasing their resources won't solve the social and economic problem caused by the patents they grant on software. A lot of big patent holders are saying that the solution is to increase review standards, but how would that happen? How do you put clear limits on whether something described is sufficiently innovative, or sufficiently useful?
The only simple way to reduce the workload of the patent office is to cut certain fields right out of consideration. Start with software. Making the USPTO more efficient isn't our goal, but it's a happy coincidence that there's a solution to our problem that just so happens to solve a major USPTO problem.
And it's not just the USPTO. The European Patent Office has the same problems.
under-resourced (Score:2, Offtopic)
I've got a sister in law who works at a patent office in Germany. She tells me they make obscene amounts of money.
If they're "under-resourced" it's because they can't build luxury office buildings fast enough to keep up with industry demand.
Re:under-resourced (Score:4, Interesting)
That's in Germany. There are no software patents in Europe, and Germans are (traditionally) much less interested in lawsuits than US citizens and corporations. I'd also expect German patent grants to actually be valid, rather than relying on lengthy court processes to refute patents that never should have been granted due to prior art or attempting to patent laws of nature.
None of these conditions apply in the USA. It is actually to the advantage of some large companies and their lobbying organizations to keep the patent office overwhelmed and confused: they can assemble portolios of defensive patents to protect their interests, and apply those portfolios at whim against smaller, more creative, developers or businesses that haven't already invested in manufacturing or development or sales of an older product line.
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The only simple way to reduce the workload of the patent office is to cut certain fields right out of consideration.
The only long term way to reduce the workload and balance the system is for the patent office to actually pay the cost of the patents. With a fixed budget limit on how much the system is allowed to cost the economy, the system would automatically balance itself; grant too many patents and each patent would pay out a pittance to the holder, grant too few and the payout per patent would be large
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For innovation, start by relaxing the standards for prior art. At the very minimum, if a piece of prior art would infringe the patent if it were to have been invented later, the patent should be denied. None if this "if it differs from the prior art in some minor way, the prior art doesn't count".
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You're still left with the problem of distinguishing between "minor" and "major" differences from prior art.
Dealing with something physical like a breaking system, you can make a certain quality of comparison. Not at all 100% reliable, but you can see if they look similar and if they have similar results.
Dealing with software, you're bunched. How do you decide if my method for transmitting objects between stateless compiler units is different from your method for exchanging stored values among non-volatil
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The only simple way to reduce the workload of the patent office is to cut certain fields right out of consideration.
This is plainly false. For example, another simple way would be to substantially increase application fees, particularly for large corporations.
Furthermore, no one has yet put forward a legally workable definition of a 'software patent.' Any attempt to cut out software patents will likely lead to more litigation as applicants argue that their inventions don't qualify. The end result is a sy
Software patents? (Score:5, Insightful)
Re:Software patents? (Score:5, Insightful)
Don't get me wrong, I'm completely against software patents, but I'm way more offended by "business method" patents. And patents on something that someone did a hundred years ago, only now someone adds the line "on a computer" and suddenly that's a new patentable event.
those and patent on genes. Plah-ease! No one invented anything there - it was just discovered.
Re: (Score:3, Interesting)
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Everything is just 'discovered' - it's just that some things have more layers of ideas than others.
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those and patent on genes. Plah-ease! No one invented anything there - it was just discovered.
35 USC 100(a) [cornell.edu], "The term "invention" means invention or discovery."
35 USC 103(a) [cornell.edu], "Patentability shall not be negatived by the manner in which the invention was made."
Your argument was considered and rejected by the drafters of the Patent Act.
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And patents on something that someone did a hundred years ago, only now someone adds the line "on a computer" and suddenly that's a new patentable event.
It took a while for the courts to catch up to that, but they have. In Muniauction, Inc. v. Thomson Corp., 532 F. 3d 1318 (Fed.Cir. 2008) [google.com], the Federal Circuit held that, where the only difference between the claimed invention and the prior art was the use of a web browser, the addition of the web browser was obvious, especially since the patentee did not pro
Either whack software patents or force disclosure (Score:2)
If I had my way, software patents would be simply disallowed. If they're not going to be disallowed, then the number needs to be reduced AND they need to start showing some benefit to society. Right now, you can patent things that aren't even close to being implemented, and if you patent something that has been implemented you get to keep the copyright on the code as well.
Software patents should require full disclosure of the source code AND that code should not be eligible for copyright. That should slo
Apple patent blows my mind (Score:3, Interesting)
Here's why the patent system is broken.
Apple has a patent application for arranging music information (read: any information) into different shapes. http://www.patentlyapple.com/patently-apple/2010/09/apple-provides-us-with-a-peek-at-spirals-a-new-itunes-ui-feature.html [patentlyapple.com]. They describe spirals, squares, rectangles, a helix from the side. Even a map of the USA. But why stop there? You might as well just patent information and pictures arranged into any pleasing geometric or recognizable form! Abstract goastee arrangment? Sure! Lady Gaga's face? Why not! Patented granted!
People can take things that are completely abstract and patent the whole net of ideas. Not only are patents too abstract, they usually aren't novel. Like this Apple one. It's sick.
Here's an idea. Cut the patents and rely on copyright after the fact. Or would that require that people actually do work before getting a reward?
Little value? (Score:5, Informative)
As messed up as it is, the current system creates more value for patent trolls. If it takes six years to get my patent approved, that's six years "infringing" technology getting baked into competing products.
"Industry has moved on" (Score:2)
To the contrary: After six years, there is a good chance that what you are patenting has become so painfully obvious and commonplace that every software uses it. You just need to file claims against every software company in existence and then rake in the money.
I see a solution to the employment problem here (Score:3, Interesting)
Seriously. Start hiring, teachers and "readers" alike. Set an appropriate threshold for level of English language proficiency, both written and spoken. Train. Nothing stimulates the economy like jobs, and this could help speed things upa bit and bring down the backlog.
That and knocking it off with the filing/approval of ridiculous patents.
Won't work (Score:2)
State will then lose money on patents. Now its an increasing chunk of dough to grease the state machinery. Doing it properly, not screwing society over, is not profitable. If the budget changes, so will the state's priorities regarding the patent system have to change..
http://www.uspto.gov/about/stratplan/ar/2006/30605_stmntnetcost.jsp [uspto.gov]
Crowd Sourcing (Score:2)
The solution is simple. (Score:2, Troll)
you can't remove software patents because .... (Score:2)
... I have a patent application in on a business method of software patent trolling... and that's gonna take like 7 years by the time it goes through.
I paid the fees so they have to process it under the terms that existed when I applied.
And this is why they cannot remove software patents from their scope. Its the only reason. Pre-existing... patents and applications.
From TFS (Score:2)
As it is, by the time companies get a software patent, there's little value to them because, after six years, the industry has already moved on.
Yeah, there's some wishful Slashdot nerd thinking if I ever saw it. Look, I despise software patents with the best of them, but the above claim is pretty much refuted by the existence of the backlog, with plenty of "little value" software patents in the mix.
Re: (Score:2)
If the backlog were eliminated, you wouldn't know how many employees to retain, because it would be based entirely on the number of filings you got that day. Having a backlog means that you can keep 6000 examiners on staff and not worry about having to lay them off because you ran out of work for them to do.
Also, the reason we have a patent examination system rather than a patent registration system with examination-upon-litigation is because (a) people would register claims of ridiculous scope and then as
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Also, for something which is mostly 'new', it takes about 6 years, even in the fast-moving software world, for it to become widely, internationally adopted. I'm sure there are exceptions, but when people start doing something, 5-6 years seems to be the 'uptake' period. At the end of which, you might have hundreds of millions or even billions of people 'infringing' the patent. If patents were granted faster, people might avoid the patents, and you'd never get the level of 'infringment' (I put that in quotes,
Doh (Score:4, Insightful)
If something can be made in 1 week by a teenager, on no pay or salary, then it obviously is not worth protecting with hundreds of thousands in court fees to make greedy lawyers rich, at the expense of society at large and more pressing cases.
Software lowers the bar of innovation, so yes, nothing in software is really worth protecting. Software is already protected by copyright, which should provide sufficient protection, without hindering the free market to unfold itself.
There is a reason programmers in the field are called "code monkeys". After 4-5 years, if you haven't moved on or up, you are either a real geek, or just love mind-numbing work. There's usually not much innovation going on, just translation of real world processes into the world of computers. At any time, you can usually be replaced by another guy, don't fool yourself. Same with patents. It is not unusual for many people around the globe to get the same ideas at the same time, because the bar to software is so low..