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Patents Software The Courts Your Rights Online

Why There Are Too Many Patents In America 189

Posted by timothy
from the this-posner-guy-seems-pretty-smart dept.
whitroth writes "The judge who just dismissed the lawsuit between Apple and Motorola writes a column explaining what he considers to be reasonable uses of patents, and unreasonable ones. One of his thoughts would be to require a patent holder to produce the patented item within a certain time, to cut out patent trolls."
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Why There Are Too Many Patents In America

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  • As someone (Score:5, Insightful)

    by Anonymous Coward on Thursday July 12, 2012 @04:17PM (#40632309)

    who worked for a company that got sued by a patent troll for some really insane email to fax patent from the 1990s that would NEVER have been a commercial product, I concur.

    Make it, sell it, or the patent is tossed. Give them 3 years.

    • Re:As someone (Score:5, Interesting)

      by ackthpt (218170) on Thursday July 12, 2012 @04:22PM (#40632365) Homepage Journal

      who worked for a company that got sued by a patent troll for some really insane email to fax patent from the 1990s that would NEVER have been a commercial product, I concur.

      Make it, sell it, or the patent is tossed. Give them 3 years.

      Ironically, I once worked for a company, developing cutting edge network technology and internet applications. I dropped the suggestion to a VP that what we were doing was all new terrain and we could patent some of the complex processes and end products we were developing. The VP simply stated, we're a development company, not an intellectual property company, so no patents were going to be considered, even defensively.

      That's the way the world was for some people back 12 years ago.

      • Ironically, I once worked for a company, developing cutting edge network technology and internet applications. I dropped the suggestion to a VP that what we were doing was all new terrain and we could patent some of the complex processes and end products we were developing. The VP simply stated, we're a development company, not an intellectual property company, so no patents were going to be considered, even defensively.

        I envy the place you worked at, man. Sounds like they had their priorities straight, getting a good product out.

        Sucks that the reward for hard work like that is typically to have a patent troll ruin your business.

        • Re:As someone (Score:4, Informative)

          by ackthpt (218170) on Thursday July 12, 2012 @04:40PM (#40632555) Homepage Journal

          Ironically, I once worked for a company, developing cutting edge network technology and internet applications. I dropped the suggestion to a VP that what we were doing was all new terrain and we could patent some of the complex processes and end products we were developing. The VP simply stated, we're a development company, not an intellectual property company, so no patents were going to be considered, even defensively.

          I envy the place you worked at, man. Sounds like they had their priorities straight, getting a good product out.

          Sucks that the reward for hard work like that is typically to have a patent troll ruin your business.

          Certainly. Back then all this sort of tit-for-tat fighting over ridiculous "intellectual property" was pretty unusual. If someone was suing it was often because they have put millions of dollars into building a fab to make something engineers had spent years developing, not some bloody FOR and NEXT loop.

          Alas, were tha company still around they'd probably be fighting to defend the technology we developed because some other twit filed a patent and was trying to extort money from something which is largely prior art, if not obvious.

          • Re:As someone (Score:5, Insightful)

            by SomePgmr (2021234) on Thursday July 12, 2012 @05:05PM (#40632779) Homepage

            [...] not some bloody FOR and NEXT loop.

            Yes, this.

            While I can appreciate how trolling companies exacerbate the situation, it seems to me like it's also a problem of trivial and obvious things being patented, less than people not being able to implement them.

            I mean, Amazon can implement one-click. Apple can implement searching more than one source per query. The problem is that of course they can, and so can everyone else... because it's obvious, not innovation. Defensive or not, issuing patents for that kind of crap stifles real business and innovation.

            • I'd argue that both of your examples are also bogus software patents that are killing innovation in the US. I personally am an author on 22 patents (Google QuickLogic and Cox for my older patents). Most of them are defensive software patents that we file because someone else might if we don't. It's extortion by the USPTO. Patent trolls make us that much more edgy to patent every stupid barely innovation we can.

              Ben Franklin was proud to file some really innovative patents, like bifocals and swimming fins

              • Re:As someone (Score:4, Interesting)

                by silentcoder (1241496) on Friday July 13, 2012 @03:17AM (#40636639) Homepage

                >Ben Franklin was proud to file some really innovative patents, like bifocals and swimming fins

                Absurdly false. Franklin did invent those, and many other things, but he never owned a single patent in his life and vehemently opposed patents. He argued against patent laws in congress on the basis that ideas are not property and should benefit society as far as possible - which means having the invention built by whoever can do it the cheapest, regardless of who had the idea.
                Now I would say Franklin's thoughts were correct for his day, some industries today are different (the article points out pharmaceuticals as a good example) and in those industries it is genuinely in the public interest to have patents - but they are the minority of industries.

          • Re:As someone (Score:5, Interesting)

            by oxdas (2447598) on Thursday July 12, 2012 @05:18PM (#40632907)

            The reason there wasn't the tit or tat fighting back then is because the USPTO had spent decades fighting against software and business process patents. While they frequently lost in court, the battle itself was enough to dissuade many companies from filing ridiculous patent applications. This all ended in 1994, when Clinton appointed Bruce Lehman, a former IP lobbyist, to run the patent office. Lehman changed the course of the USPTO to simply become the rubber stamp it is today. It takes time for such changes to be felt though. It took many years for companies to figure out how to game the new system and for the frivolous patents to reach critical mass.

            People have always been conniving, greedy, and underhanded, the difference is that patents were not as potent of a weapon as they are now, so people didn't employ them as often.

        • by mwvdlee (775178)

          Wouldn't have helped anyway. A patent troll doesn't do anything useful, so they can't possibly be violating any patents themselves.

          • Re:As someone (Score:4, Informative)

            by ackthpt (218170) on Thursday July 12, 2012 @05:02PM (#40632741) Homepage Journal

            Wouldn't have helped anyway. A patent troll doesn't do anything useful, so they can't possibly be violating any patents themselves.

            The patent troll's mode of business is suing and hoping you settle, rather then go to trial, but if they win a trial then the troll uses that as precedent to go after more companies. They're completely amoral parasites on the courts and business, but do keep a number of attorneys gainfully employed.

    • by gtall (79522)

      Won't work. As soon as the new rules came out, there'd be brand new companies in China devoted to producing and "selling" whatever wild-ass thing you think you've patented. And they'd knock it in a few weeks. There would be no restriction that it be well-made. And Mr. Ching in China would be selling oodles of it to Mr. Chong in the U.S.

      The only thing that will stop the madness is to scrap whole patentable categories. No process patents, that includes software as that is a process. That's for starters. I'm s

  • by betterunixthanunix (980855) on Thursday July 12, 2012 @04:19PM (#40632337)

    The prime example of an industry that really does need such protection is pharmaceuticals

    This is not the example I would have chosen, considering the way Big Pharma has tried to use its patents to prevent third world countries from giving their populations live-saving medications at affordable prices:

    http://www.msnbc.msn.com/id/18490388/ns/health-aids/t/brazil-break-merck-aids-drug-patent/ [msn.com]

    • the thing to take issue with there is the policy of expanding US- and European-style patent law worldwide.

      Pharmaceuticals and chemicals are the prime examples of industries where patents are not only valuable, but also generally thought to be essential to innovation. Posner's suggestion of having different patent terms for different industries is not news, that idea has been circulating for decades, and probably longer. It's something that he's actually endorsing it in public, I guess.

      The standard IP hack r

      • Pharmaceuticals and chemicals are the prime examples of industries where patents are not only valuable, but also generally thought to be essential to innovation

        Sure, but we could be doing things differently. Considering the substantial benefit that a new drug can bring to our society, I am not sure that it makes sense to say that any person or group of people be able to decide who can have the drug and who cannot. I favor a model where publicly funded drug research is expanded and the barriers to such research are lowered, and where drug companies only produce the products of that research. I know that using tax money for anything other than killing and impri

        • by langelgjm (860756) on Thursday July 12, 2012 @04:50PM (#40632639) Journal

          I don't necessarily disagree. Again, the IP hack response is that without the patent and profit, there is no new drug from which to benefit, so the question is irrelevant. In theory, decent health insurance coverage is supposed to solve the problem of access to the drugs, too.

          But as you've pointed out there are other funding mechanisms that could potentially work, and might even produce better results. After all, the end result of our current patent system is not that life-saving drugs get made, it's that profitable drugs get made (or at least research for profitable conditions gets done). If they happen to be life-saving, that's nice. Research on drugs for tropical diseases languishes. We've noticed it and try to supplement the incentives of the patent system with prize funds, grants, non-profit money, and the Orphan Drug Act.

          The reason it is destined to fail on a large scale is probably because of political pressure from pharmaceutical companies loathe to see anything significantly alter the current system.

      • by SomePgmr (2021234) on Thursday July 12, 2012 @05:14PM (#40632865) Homepage

        Posner's suggestion of having different patent terms for different industries is not news, that idea has been circulating for decades, and probably longer. It's something that he's actually endorsing it in public, I guess.

        Someone on slashdot recently linked a great TED talk about the general lack of IP protection in the fashion industry, and how it has actually worked out really well for them. Trademarks protect your profit margin, but you can't prevent anyone from making a shoe.

        I see software as being somewhat similar. I should be able to make an online store without violating someone's IP, but I shouldn't be able to call it "Amazon".

        http://www.ted.com/talks/johanna_blakley_lessons_from_fashion_s_free_culture.html [ted.com]

    • I concur: when Schering-Plough's patent on loratadine expired, the price of the drug went through the floor and suddenly it was available over the counter - but not at $15 per pill.

      Sure made my life easier, in recent years I've been travelling around a lot and scheduling to be around my GP surgery one day then again three days later to pick up the prescription is a nightmare. Now I just walk into the first pharmacy I see and pick up a month's supply for change out of a fiver.

      Patents on pharmaceuticals is ju

      • Re: (Score:3, Insightful)

        by Anduril1986 (1908840)
        While I agree it is a shame, the reason people say it is a necessity for pharma, is the company that created that drug probably spent hundred of millions of dollars and a decade or more of R+D and testing to produce that drug. I'm not saying its right, but that's the way things are at the moment. If they couldn't get a monopoly on it then once they had spent all the money creating it, some other company would probably reverse engineer it and sell it for a fraction of the price. The end result would be that
        • The end result would be that research and production of new drugs would grind to a halt because companies would most likely not get a return on their investment.

          That's a false dichotomy; publicly funded research can also develop new drugs.

    • by amicusNYCL (1538833) on Thursday July 12, 2012 @04:41PM (#40632559)

      What's with the term "Big Pharma"? Is there some sort of mom-and-pop pharmaceutical company that is the alternative to Glaxo-Smith-Kline? Aren't they all big? Isn't there just "Pharma"?

      • Is there some sort of mom-and-pop pharmaceutical company that is the alternative to Glaxo-Smith-Kline?

        1. My pedantic side wants to point to medical marijuana producers
        2. My not-so-pedantic side would point to the small generic drug producers, who are not raking in billions of dollars in profit and who are selling affordable drugs (well, at least more affordable than the name brands)
      • by girlintraining (1395911) on Thursday July 12, 2012 @04:55PM (#40632687)

        What's with the term "Big Pharma"? Is there some sort of mom-and-pop pharmaceutical company that is the alternative to Glaxo-Smith-Kline? Aren't they all big? Isn't there just "Pharma"?

        There are a lot of researchers who don't work for those companies. Trying to do things like develop a cure for cancer, HIV, diabetes... things Big Pharma won't do because the cocktails of medications to treat the aforementioned diseases bring in a lot of money. And that money would go away if there was a way to cure those people, instead of just treat them. I can show you stacks of internal memos and documentation showing that the major pharmaceutical companies purposefully stall and delay research into cures, and there have been several cases where they've sued to prevent universities and private researchers from pursuing testing of certain chemical compounds because they infringed on a patent -- after research showed dramatic and sustained improvements in a patient's health that reduced or eliminated their dependancy on already-existing drugs.

        It's called Big Pharma because they're not about making sick people better, they're about making money off of sick people -- as long as they stay sick, Big Pharma stays profitable. None of this nonsense about making lightbulbs that last a hundred years... we all know what happened to the company that solved the problem too well.

        • by Cyberax (705495) on Thursday July 12, 2012 @06:01PM (#40633305)

          I can show you stacks of internal memos and documentation showing that the major pharmaceutical companies purposefully stall and delay research into cures

          Please do. The biggest known case was the use of antibiotics to treat ulcers. But that was about 50 years ago.

        • by s.petry (762400)

          I have heard these rumors on several web sites as well, but have yet to see any such documentation. I know of several cases where many of the big companies have done wrong things, but not not like this. Please provide links to said "stacks of internal memos and documentation.

        • by pepty (1976012)

          What's with the term "Big Pharma"? Is there some sort of mom-and-pop pharmaceutical company that is the alternative to Glaxo-Smith-Kline? Aren't they all big? Isn't there just "Pharma"?

          Big Pharma came about as all of the already huge pharma companies began merging back in the '90s. "There can be only one" seemed to be the mantra for Ciba-Geigy-Sandoz-Novartis .... The alternative to Big Pharma is biotech, more or less.

          I can show you stacks of internal memos and documentation showing that the major pharmaceutical companies purposefully stall and delay research into cures, and there have been several cases where they've sued to prevent universities and private researchers from pursuing testing of certain chemical compounds because they infringed on a patent -- after research showed dramatic and sustained improvements in a patient's health that reduced or eliminated their dependancy on already-existing drugs.

          Cite? Memos, documentation, and cases please, cause I call bullshit.

          A cure for A cancer would be tremendously profitable for the company that had it, even if it displaced some of its existing chemotherapies:

          -A cure would displace all of the competition as well as the comp

    • well on the other hand, drug patents is still interesting because between an idea and an actual drug, there are years of research, clinical studies and certification, all of which cost a lot, and a high risk of failure/rejction (out of several idea, only a few drug see the light). (that also the indirect reason why drugs are so expensive: only big pharma can afford the cost, the efforts and risks to developp drugs, therefore it's not a free market but an oligopoly, and thus the few players can practice the

    • So what is your solution? How would you allocate money to drug R&D?

      Patented drugs send a clear signal market signal if we are overspending / underspend on drugs in general or on specific types of drugs. Do I have specific issues with the current system that I would like to see reformed? Yes. Do I want to throw out the baby with the bathwater? Not until I hear a better idea.

      Like democracy, it is a horrible system whose only saving grace is that it is better than all others.

      • So what is your solution? How would you allocate money to drug R&D?

        Publicly funded research; the role of drug companies should be in producing drugs discovered by scientists funded with NIH or NSF money; they are free to do their own research if they want, but we should not be giving them a monopoly and raising the price of drugs just for that. Drug research should not be focused solely on those drugs which are most profitable, and cures should not be ignored in favor of maintenance drugs.

        Yes, the market has a purpose here: to determine the price level of the drugs

        • OK, you have given me something to crew over - but let me try to give you a partial response.

          1. Governments tend to under invest in long term projects like basic medical research.

          2. Bureaucrats tend to be conservative and would not fund high risk high return ventures. Craig Venter and the human genome project is an example that I love. He wanted to go the public rout but was denied funds because his approach was too radical. He did it faster and cheaper then the public rout.

          Of course Pharm only researches d

          • by mvdwege (243851)

            Governments tend to under invest in long term projects like basic medical research.

            In fact, it's the other way around. Most basic research is done at universities on government grants, and the refinement of that basic research into product is done by industry.

            That the U.S. government under pressure of right-wing propaganda ("Stop wastin' muh tax-dollahs!") continues to slash funding is no counterproof, not as long as we don't see industry taking up the slack.

            Mart

    • by cas2000 (148703)

      Yep. That section of the article was a glaring contradiction to the rest of it.

      The pharmaceutical industry is not an example of an industry that needs special patent protection. rather, it is an industry that needs to be nationalised.

      pharmaceutical companies do very little actual research, anyway. That is done in (mostly government funded) universities. BigPharma gets involved only *after* there is a new drug 'invented', they buy up the patents to the research, and then spend the money required to comple

      • by Teancum (67324)

        The pharmaceutical industry is not an example of an industry that needs special patent protection. rather, it is an industry that needs to be nationalised.

        The problem with this notion is even wondering why the government needs to be involved in any sort of industry at all. Regulations to keep drug companies from killing off their customers and to destroy the quack medicine peddlers that existing in the past may be a good thing, but I so completely disagree with your notion here about this kind of government involvement in drug or medical research at all is patently absurd, particularly in America. The whole point of the U.S. Constitution, to explain the phi

  • by fantomas (94850) on Thursday July 12, 2012 @04:21PM (#40632355)

    Why are there too many patents in the USA? because the country is owned by lawyers?

    Something doesn't work: find somebody to sue! Not sure if whether to sue? A lawyer will recommend you do! Got an idea which might be worth a couple of dollars, keep you fed for a couple of months? patent it and claim anybody using the idea is putting you out of the equivalent of the GDP of an average European country!

    Where do these people get the figures from?

    Maybe that's not the case but it looks like it from outside ;-)

    • by girlintraining (1395911) on Thursday July 12, 2012 @04:34PM (#40632503)

      Why are there too many patents in the USA? because the country is owned by lawyers?

      It's not that we have too many patents. It's that patents are used to lock out competitors, inhibit free trade, and are used offensively to protect and expand business. Patents are not used to advance the state of the art, or to make available for public inspection true advances in science, technology, or methodology... they're used solely as weapons of mass distraction.

      And it has utterly destroyed our ability to compete globally. There is no more innovation in this country -- building a product now has to be done overseas, not because it's cheaper as much as because it's necessary: Basing your operations domestically means that if your competitor wins in a patent suit, your entire business could go tits up -- you can't export something that's in violation of a patent. This way, you can continue to sell your product in other marketplaces while going through our endless appeals process. Your manufacturing process can't be threatened if its based in a country that doesn't have a corrupted patent system.

      • by s.petry (762400) on Thursday July 12, 2012 @06:58PM (#40633877)

        I'm not sure if you read the article, I believe the judge to be very correct. There are too many patents, and I believe the indicators are that we have so many "Patent Trolls", an over taxed Patent office, and an over taxed judicial system trying to deal with them all. Patents are being submitted and received for things that should not have a patent. Whether it's obvious, or previously patented, there are simply to many.

        What I tend to not give much thought to, and what the Judge so elegantly points out, is that Pharmaceutical companies are actually shafted by the patent system. It still works fine for mechanical invention, but mechanics is a small fraction of the patents being submitted to the US PTO each year.

        He also gives some possible solutions. I think most of what he wrote I have seen before from various sources discussing the issue. His presentation is well thought out and not over the top.

    • The real problem with lawyers is all of the lawyers that get elected to office and then pass laws favoring lawyers. I can't get a home loan in this country (or at least my state) if I don't have a lawyer, the loan isn't valid. Lawyers also enjoy an unusual amount of immunity from prosecution.

      • by Grond (15515)

        Lawyers also enjoy an unusual amount of immunity from prosecution.

        Do what now? I must have missed discussion of that particular fringe benefit in law school.

    • by Grond (15515)

      If there were fewer patent lawyers there would be just as many patent suits. The only difference would be that the remaining lawyers would all be hired by the richest clients and the less rich clients would get raked over the coals. I'm not saying more lawyers would help, but fewer certainly wouldn't.

      And remember, behind every sleazy lawyer is a sleazy client.

    • Why are there too many patents in the USA?

      A good part of the ongoing patent mess is caused by the funding model of the US Patent Office. The problems become fairly obvious if you read the proposed 2013 US Patent and Trademark Office budget proposal at: www.uspto.gov/about/stratplan/budget/fy13pbr.pdf

      Here are a few of the problems in the funding model:

      • Page 37 of the budget: "..More than half of all patent fee collections are from issue and maintenance fees, which essentially subsidize examination activities."
      • They charge a small, fairly triv
  • Go farther (Score:5, Insightful)

    by girlintraining (1395911) on Thursday July 12, 2012 @04:24PM (#40632393)

    I do not find many people that disagree with the idea of patents: Namely, that you publish how something works, and then for a limited period of time, you are allowed exclusive rights to sell that something. Then everyone is allowed to do it. When the patent system was first invented (pre-industrial era), new inventions came out every few years. The steam engine, which became the locomotive, which became the combustion engine, which became the car, etc. Technological progress from decade to decade wasn't that fast. Ford created the assembly line, and 14 years later, it was still a novel concept. Today, much of the equipment and processes we had a decade ago isn't worth much more than scrap. 10 years is a very long time. But patents still have the same timeframe; 7 to 14 years. 14 years ago, broadband internet was a luxury item only the rich and a few people lucky enough to be in the right neighborhoods could get... Today, it's just assumed you'll have access to it, and at a reasonable price.

    The patent system needs to take into account the industry in which the patent's primary use is: Metallurgy, for example... not exactly a fast-moving industry. Software design... very fast moving industry. It's stupid that the time limits are the same for a new computer algorithm, or a new metal deposition technique.

    The other part of this is the originality of the invention; A hundred years ago, every invention was novel, because few people had the resources to research, prototype, develop, and market something new. Today, there are hacker spaces in most metropolitan areas. Anyone with an idea for a new idea, process, or concept, can plunk down a few thousand and develop a new invention. A lot of it isn't even original; it's repurposing technology designed for a different use. And that's where the patent system fails miserably -- today, they take a patent for encoding binary data over copper wires (original idea), and when it expires, they submit a new patent for encoding data over the internet. Same tech. Same concept. Slightly different application. New patent. BZZZZT! No. No new patent should be given. Only truly original, game-changing technology, something that advances the state of the art, should be awarded a patent. Otherwise, it's just re-engineering... anyone with a basic grasp of the concepts could do it.

    Fix those two problems, fix most of what's wrong with the patent system today. Most.

    • Re:Go farther (Score:4, Interesting)

      by mwvdlee (775178) on Thursday July 12, 2012 @05:03PM (#40632755) Homepage

      Agreed.

      Oddly enough, one of the rules for patents states that a patent "must not be obvious to a person skilled in the art.". Most software patents these days are quite obvious to an average software engineer, yet this rule is seemingly completely ignored.

      I also think part of the patent problem is that many patents these days seem to patent the problem itself rather than a specific solution to the problem.

    • I do not find many people that disagree with the idea of patents: Namely, that you publish how something works, and then for a limited period of time, you are allowed exclusive rights to sell that something. Then everyone is allowed to do it. When the patent system was first invented (pre-industrial era), new inventions came out every few years. The steam engine, which became the locomotive, which became the combustion engine, which became the car, etc. Technological progress from decade to decade wasn't that fast. Ford created the assembly line, and 14 years later, it was still a novel concept. Today, much of the equipment and processes we had a decade ago isn't worth much more than scrap. 10 years is a very long time. But patents still have the same timeframe; 7 to 14 years. 14 years ago, broadband internet was a luxury item only the rich and a few people lucky enough to be in the right neighborhoods could get... Today, it's just assumed you'll have access to it, and at a reasonable price.

      The patent system needs to take into account the industry in which the patent's primary use is: Metallurgy, for example... not exactly a fast-moving industry. Software design... very fast moving industry. It's stupid that the time limits are the same for a new computer algorithm, or a new metal deposition technique.

      I like this idea but let's generalize it a bit. Instead of trying to categorize by industry, a submitted patent must give an estimate of how time was spent to develop the technology and how much time would be needed to produce a product based on this technology. Patent duration would be some arbitrary but predefined multiple of this. Let's say "4". So patent_duration= (tech development time + product development time) * 4;

      A cost estimate should also given and all of this information should be publicly

      • by pipedwho (1174327)

        Along with your above ideas, I'd also factor in the 'obviousness' of the method(s) under application.

        Rather than the present system of drawing a hard line between 'obvious' and 'novel' (and getting it far too wrong far too often); a duration moderating factor would mitigate the 'damage' a bad patent could do, by instead granting it with a much shorter time frame.

        At the moment, if an idea is barely patentable (and would be considered obvious to anyone that really knows what they're doing), it gets 20 years.

    • by icebike (68054) *

      I do not find many people that disagree with the idea of patents: Namely, that you publish how something works, and then for a limited period of time, you are allowed exclusive rights to sell that something. Then everyone is allowed to do it.

      Then you haven't been paying attention to Slashdot for very long.

      The under 25 generation has pretty much repudiated that entire concept, and often voice the opinion here on Slashdot and elsewhere that a bell once rung can't be un-rung, and an idea once published can't be owned by anyone. As justification they point to the Life Plus 70 years extension of copyrights and paint patents with the same brush.

      As for originality: Slide to Unlock existed since the first dead bolt was created. Does that mean Apple'

      • by s.petry (762400)

        The under 25 generation has pretty much...

        I'm forty-alot, and while I don't completely discount Patents or Copyright, the current implementations are broken so badly that they can no longer function as intended. The current implementation allows for rampant abuse of monopoly.

        To be more clear, the problem I have with copyright is simply duration. 70 years for a book is a lifetime in the digital age where you can print and distribute to millions of people in minutes. The 70 year law had to consider things like how long it took to print and ship bo

      • by bky1701 (979071)
        "The under 25 generation has pretty much repudiated that entire concept, and often voice the opinion here on Slashdot and elsewhere that a bell once rung can't be un-rung, and an idea once published can't be owned by anyone. As justification they point to the Life Plus 70 years extension of copyrights and paint patents with the same brush."

        The fundamental problem is that once you declare an idea property, you start to create artificial scarcity. That is bad for society. Our ultimate goal as a species sho
        • by icebike (68054) *

          We already know from both copyrights AND patents that once you have established the concept of "intellectual property," it will only expand to consume every area of the economy, until economic collapse.

          We do absolutely NOT know this.

          The ruling in Canada today as well as Judge Richard Posner article suggest exactly the opposite.
          Its become patently obvious (sorry - bad pun) that the pendulum has swung too far and
          the Judiciary is applying the brakes. You overstate the case sir.

          • by bky1701 (979071)
            We'll see how that goes. Even if it does get loosened - which I have zero expectation of, as right now I can name a number of countries working on passing new, extreme copyright/trademark laws - it will last about 10 years and swing right back to a downward spiral. Only this time we'll have that lull to look back on as the good old days, so things will become worse before someone stops it the next time. Think gas prices.

            As far as I care, the very idea that ideas can be owned is wrong and a hindrance on e
            • by icebike (68054) *

              As far as I care, the very idea that ideas can be owned is wrong and a hindrance on every aspect of society.

              Well actually, owning an IDEA is not something that a Patent, or even a Copyright grants. Ideas can't be patented. [ipwatchdog.com] Patenting an Idea makes it known to the world.

              Historically You had to actually produce something from your Idea. You had to implement your idea in order to obtain a patent. Now it seems all you need do is scrawl it in paper.

              At best you are granted a limited time in which your competitors can not use your invention drive you out of the market. You are granted a limited monopoly on the ability

    • Today, much of the equipment and processes we had a decade ago isn't worth much more than scrap.

      This it true in the IT world due to the rapid advancement, but Moore's law cannot hold indefinitely and it will eventually slow down. Most industries advance much more slowly such that it's not uncommon for a factory worker to be using equipment that was installed before they were born. Also most large factories are basically giant machines with a concrete exoskeleton, modernising the machine often means rebuilding the entire factory and reskilling the entire workforce, it is simply not worth doing every 10

    • I disagree with the exclusivity part of the system. That's a monopoly, and I have yet to hear of a monopoly that benefited the public more than fair competition. Everyone should be allowed to do it immediately.

      The goal is to encourage innovation. Money is a powerful encouragement by itself, we don't need to hand out absolute control. Should an "owner" have the "right" to deny the entire world the use of an invention? Particularly in cases where the invention is not original and the patent should neve

    • Technological progress from decade to decade wasn't that fast.

      Maybe in the middle ages, but certainly not by the time industrial revolution got underway.

      Ford created the assembly line, and 14 years later, it was still a novel concept.

      Huh? Within less than a decade it was widely used.

      Today, much of the equipment and processes we had a decade ago isn't worth much more than scrap. 10 years is a very long time.

      What planet do you live one? Pretty much every business I know that's older than ten

  • by CanHasDIY (1672858) on Thursday July 12, 2012 @04:25PM (#40632411) Homepage Journal
    I definitely wouldn't have used Big Pharma as my example, since a large portion of the research they benefit from is publicly funded.

    Instead, I would have pointed out individual inventors, like my own father. Without the patents he holds on his inventions, a large, well-funded corporation could easily steal his idea, mass manufacture his product, and essentially use his own invention to drive him out of business without so much as breaking a sweat.
    • by countach (534280)

      As laudable as your father's need for patent protection might be, the reality of the 21st century is that only a very tiny proportion of patents, and only a very tiny proportion of new and interesting products are developed by guys tinkering in their garage. Jobs and Wozniak created a new industry in their garage. That happens less and less. And even when it does happen, its rarely because of some new patented idea. I'd hazard to say that 95% of patent cases in court are mega corporations battling each othe

      • by icebike (68054) *

        Jobs and Wozniak created a new industry in their garage.

        The created a new industry to market a product that was neither unique nor revolutionary at the time.

        Creating a new industry is not the standard upon which we issue patents.

        The newness and uniqueness of the invention is what counts (or should count). Adding a digital display to a telephone once both the display and the telephone are already invented is not particularly inventive either. Its simply recombination of existing parts. Recombination is what most patents cover these days.

    • by betterunixthanunix (980855) on Thursday July 12, 2012 @04:41PM (#40632561)

      Instead, I would have pointed out individual inventors, like my own father. Without the patents he holds on his inventions, a large, well-funded corporation could easily steal his idea, mass manufacture his product, and essentially use his own invention to drive him out of business without so much as breaking a sweat.

      A noble picture of patents, but an unrealistic one. The world's major patent holders are not individual inventors, they are wealthy, powerful corporations, and their patents are keeping "the little guy" out of the game.

      The problem is that we have too many patents in too many fields, and we have basically forgotten the original restrictions on what was patentable. When algebra, biology, and ways of doing business can be patented, you know something has gone terribly wrong. The bar is too low, the patent examiners are too overworked, and the system is starting to discourage useful innovations that could benefit society.

      • by Grayhand (2610049)
        But the example is still valid. Take away patents and individuals are at the mercy of well funded companies. Already you have to fight cheap Chinese knock offs. I've dealt with companies that opted against making products because they knew they'd be buried by cheap knock offs before they became profitable. Patents won't stop companies from stealing, trust me I know first hand without a lawyer you have no rights, but it does make some hesitate.
        • Individuals are at the mercy of wealthy corporations as a result of patents, at least when it comes to software, drugs, plants, etc. The real question is which option has a greater benefit for society: the current system, or a system where patents either do not exist or are greatly curtailed (compared to now)?
  • Just cap the number of patents issued each year (to say, 2000), and develop a much more thorough review process to ensure that only the most novel, useful and non-obvious applications are approved. Every patent we issue represents an increased burden on our legal system and a roadblock to other inventors who need to worry about infringing upon it, so it makes sense that the government shouldn't be making an open-ended offer to protect everything that can be protected.
    This also means we wouldn't have to cont

    • by Grond (15515)

      Instead we can just settle for deciding whether one invention is more novel, useful and non-obvious than another invention, which should be much easier.

      Really? How easy do you think it is to compare the novelty, utility, and non-obviousness of a new drug with the novelty, utility, and non-obviousness of a better mousetrap? Or a new metal alloy? Or a new kind of medical imaging device? Or a new method for making smaller integrated circuits? These are completely unquantifiable and highly subjective comparisons.

    • Probably unconstituional
    • by Nemyst (1383049)

      Having a cap on the number of patents that are actually issued doesn't fix the problem of the patent office being overloaded by the number of applications.

      Instead, each patent filed in a certain time span (a year perhaps) should be progressively more expensive to file. This wouldn't harm the little guy, who only files a few things a year, but the large corporation would have to trim down its portfolio or pay very high fees to get the patents to the office. The smaller number of applications would help ease

  • by Anonymous Coward

    Judge writes:

    One of his thoughts would be to require a patent holder to produce the patented item within a certain time, to cut out patent trolls.

    Why this will NEVER happen:

    1) The United States Supreme Court recently ruled that politicians can accept an unlimited amount of lobbying money and they don't have to tell anybody about who is paying them off.

    2) The biggest multi-billion dollar companies are in the patent troll business (i.e. Microsoft and Apple, to name just two such companies)

    I am somebody who is very interested in open source operating systems and software, but I will NEVER volunteer my free time and expertise to help in such

  • by Anonymous Coward

    It would be easy to blame the editor, but cut 'em some slack. The typo checker was shut down due to a patent dispute filed by Apple for the way it used rounded letters.

  • [quote]The prime example of an industry that really does need such protection is pharmaceuticals. The reasons are threefold. ...

    Second, and related, the patent term begins to run when the invention is made and patented, yet the drug testing, which must be completed before the drug can be sold, often takes 10 or more years. This shortens the effective patent term, ...[/quote]

    Huhwhat? Big pharma needs patents because they can't exploit the current patent system enough? An article that starts off wh

  • Another idea (Score:5, Insightful)

    by SoftwareArtist (1472499) on Thursday July 12, 2012 @04:51PM (#40632659)

    How about this concept. Currently, the default assumption is that anything can be patented. Devices, processes, visual styles, anything. There are a few things that explicitly aren't allowed to be patented (such as mathematical algorithms - yes, laugh everyone), but as long as something doesn't fall into one of those categories, and meets some very minimal requirements (being original, useful, and non-obvious to a patent lawyer), it's patentable.

    Let's reverse it. By default, things cannot be patented. The government shouldn't give out monopolies by default. Then we should consider specific categories and decide whether there's an overwhelming social interest in letting that type of invention - and only that type - be patented. And we should use a very high standard for making that decision. If there's any uncertainty in whether patents for a category of invention would really help society, we should err against giving out monopolies.

    • by Grond (15515)

      One problem with line-drawing like that is that it leads to edge cases and gaming the system. So, for example, if you say that widgets are patentable, then you'll get the companies that make widget accessories, alloys used in making widgets, business methods involving the sale of widgets, devices that compete with widgets, etc all claiming that their inventions likewise need protection. Or if you say that drugs are patentable then you'll get companies that make medical devices, vaccines, biologic drugs, g

      • One problem with line-drawing like that is that it leads to edge cases and gaming the system.

        We already have that problem. It's just that currently everything defaults to being on one side of the line, and I'm proposing it should default to the other side of the line.

        Further, we have international treaty obligations that would make it very difficult to go to such a restrictive view of patentable subject matter

        Treaties, like everything else in the world of law, can be changed. Let's figure out what the law (including treaties) should be, and then try to make it that way.

        And anyway, the natural experiment that happened between the US (biotech patentable) and Europe & Japan (more restrictive view of patenting biotech) has shown that taking an expansive view of patentable subject matter seems to be beneficial.

        Many people would dispute your conclusions, but putting that aside: all it shows is that patents are beneficial for this one specific type of invention. It doesn't automat

        • by pipedwho (1174327)

          It's known as "irony". But the reality is that patent lawyers have defined the word "obvious" to mean something completely different from what it means to most people. A patent lawyer once defined it for me as follows: "If you had to solve an engineering problem to do something, then it wasn't obvious." If it was a trivially easy engineering problem, and any competent engineer could have solved it in two minutes and produced a similar solution, that's irrelevant. That is what patent lawyers consider "obvious" to mean, and it's not what most people "having ordinary skill in the art" would consider it to mean.

          This pretty much sums up the entire problem with the patent system: scope creep. Patents would not be a problem if the underlying patented methods couldn't otherwise be developed/discovered by someone else without a copy of the patent in front of them. The problem arises because far too many (most?) patented methods are routinely independently developed by engineers that have never seen or heard of the original patent in question. And in many cases with trivial effort / time / cost for anyone with ordinary

  • USE IT OR LOSE IT (Score:4, Insightful)

    by emagery (914122) on Thursday July 12, 2012 @04:51PM (#40632661)
    We need this; use your patent or lose it... period. I understand rewarding an inventor who has made the world a little better through invention by giving him or her (or it, as the case may be) the initial windfall of profit from it... but sitting on patents as a means of thwarting competition, et cetera... should be criminal for the damage it does the world.
  • by khipu (2511498) on Thursday July 12, 2012 @04:52PM (#40632663)

    So pharmaceuticals are the poster child for the patent system.

    If you want pharmaceuticals to be developed by private industry, then patents are essential.

    However, pharmaceuticals are also a poster child for bad patents because we don't really have a free market in drugs; drugs have a few large buyers, and the largest is the government. This means that drug prices are subject to rent seeking and price manipulation. In addition, drug companies have little incentive to explore finding cheap and effective cures, they want expensive long term maintenance drugs for lifestyle-related illnesses of the rich; in different words, for pharmaceuticals, market incentives and desirable outcomes don't necessarily coincide.

    So, although patents are quite effective at financing drug development in the narrow sense, they tend to encourage the development of the wrong kind of drugs for the wrong kind of people. It might be cheaper for everybody to drop patent protection for drugs altogether and have the government and researchers choose what drugs to develop and then place them in the public domains after development.

    • by lbbros (900904)
      To be honest, developing a drug is really expensive. And the most expensive part is not the actual R&D, but the testing (the phase I-II-III clinical trials). In particular, phase III clinical trials are one of the largest money sink in the whole operation.

      And you have consider that only a fraction of the developed drugs make it to the market for a number of reason (efficacy not larger than existing alternatives, side effects, etc.).

      • by khipu (2511498)

        Well, as I was saying: "If you want pharmaceuticals to be developed by private industry, then patents are essential."

        But the question is whether it's working overall: do markets incentivize the development of the drugs we need, and do pharmaceutical companies operate in a free market. The answer to both questions is "no". And that means that we need to rethink how we reward and how we pay for drug development.

    • I suppose this is as good a time as any for me to go on a rant:

      A few weeks ago, I got to sit in on a few meetings on the emerging topic of "Bio-Similars". A biosimilar is a generic version of a drug, but not a small molecule drug like all of the generics you see - a generic version of a biotech product. A protein, antibody, or what have you. Some of these patents are about to expire, and some of these drugs are worth billions of dollars in sales.

      The FDA finally opened up a way to apply for them, buried s

  • by dadioflex (854298) on Thursday July 12, 2012 @05:04PM (#40632765)
    And agree with it?
  • by NoobixCube (1133473) on Thursday July 12, 2012 @05:21PM (#40632951) Journal

    The way I would have the patent system work, were I in a position to change it, is thus:

    A patent application would grant five years of exclusivity prior to implementation. If the company implemented the patented idea before the five years expired, this period would end.

    The next phase would be a further five years of market protection. No company would be permitted to sell a product or service using this patent for a further five years from market launch of the patentor's idea, without paying appropriate royalties or licensing fees.

    If the first period expires without a marketable product being released, nobody gets the market protection. This cuts down on patent-trolls who just store up patents for later weaponisation, and encourages constant innovation and development. Five years is a huge lead time to have on your competition in the market, huge, and to try and snag this five year lead, developers will always want to be the one to launch the next big thing.

  • by Grond (15515) on Thursday July 12, 2012 @05:32PM (#40633029) Homepage

    What Posner is suggesting is called a working requirement, and many countries have it already (e.g. Turkey and India). Working requirements are necessarily so full of exceptions and holes that they are almost completely ineffective. There are many legitimate reasons why a patentee might not be able to produce the patented invention (beyond, perhaps, a prototype or demonstration). The patentee may need additional funding. It might need regulatory approval. It might be waiting for upstream suppliers. It might require an as-yet uninvented technology to make the invention practical or profitable. The market might not exist yet or might not be large enough to make the invention profitable. It might be building large, expensive factories. It might be negotiating with licensees or still looking for licensees. The list goes on.

    So, you might say, let's just set a strict deadline and to heck with the excuses and exemptions. The result, then, is that the system favors technologies and industries with low startup costs and quick time to market and disfavors technologies and industries with high startup costs and long lead times. I'm not sure we want to encourage even more short-term thinking in business than we have already.

  • I hate software patents, I really hate software patents. They are a giant parasitical suck on the vitality of the tech industry but I believe there is one area where they are potentially good and that is in the really non obvious which is already a requirement for getting a patent; a requirement that seems to be obviously ignored. So if you come up with an algorithm that factors 1024 bit numbers with a 486 in 2 seconds then maybe you deserve a patent. If you make a one click checkout then holy smokes no pat
  • It is scary to hear a respected judge like Posner saying such silly things.

    The proposal to add a manufacturing requirement is just awful.

    First of all, the quid-pro-quo of the patent system is that the patentee must DISCLOSE the invention in exchange for exclusive rights, not MANUFACTURE.
    (And a job for Congress, NOT the Judiciary, but that's a whole nother can of worms).

    Let's discuss the details of this proposal, shall we?

    Who EXACTLY has to be the manufacturing entity? Does it have to be the inventor himsel

    • by pipedwho (1174327)

      For example, increase the threshold for obviousness, require better disclosures, etc.

      You'd have thought that these would have already been requirements. But, sadly, you're far too correct.

      And it is indeed scary to hear a judge make a ridiculous statement like this, when the real problems (and therefore solutions) are almost completely unrelated to what he perceives them to be.

  • bad idea (Score:4, Interesting)

    by aepervius (535155) on Friday July 13, 2012 @12:57AM (#40636125)
    "One of his thoughts would be to require a patent holder to produce the patented item within a certain time"

    And thus you make patent the SOLE ballpark of big firm which can afford lose a few dollar setting up a quick-n-dirty item production, whereas the small guy, the garage inventor is royally screwed, because he won't be able to produce the items, and the industry can dictate their term while buying the patent from him, when not outright stealing, because he can't protect himself due to the production requirement.

    In fact I contend there is no way whatsoever you can both protect the small inventor and avoid patent troll. The only way out is to enforce non obviousness and repell software patent outright.

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