Why There Are Too Many Patents In America 189
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timothy
from the this-posner-guy-seems-pretty-smart dept.
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."
As someone (Score:5, Insightful)
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)
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.
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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)
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)
[...] 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.
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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)
>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)
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.
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AFAIK that would not be true, but I'm not a patent attorney either so it may be something recent that I'm not aware of. What they did do away with was the originality testing. Prior to business process patents the invention had to be unique from top to bottom. Business process patents allowed modifications to existing patents as long as the patent(s) received mention and the description stated how the patent was modified.
Example, prior to the patent change if I filed for patent on "if() {stuff}, else{stu
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Not trolling, just asking... didn't they do away with the 'prior art' clause in the U.S?
No, of course not. Other than idiotic trolls on Slashdot, what would make you believe this to be true?
The only recent change in the law is that it now doesn't matter if an applicant demonstrates that they came up with the invention before someone else applying for a patent on the same thing. Instead, whichever of the two applicants filed their application first gets priority. This greatly simplifies the resolution of the rare scenario of two applicants filing for the same patent at the same time, since y
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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)
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.
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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
Interesting, but... (Score:3)
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]
That's true, but... (Score:3)
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
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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
Re:That's true, but... (Score:4, Interesting)
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.
Re:That's true, but... (Score:5, Informative)
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]
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No. Only because there are no other protection mechanisms in fashion, brand names mean everything. Other industries with nearly no other protection mechanisms are similar, like the food industry. Also here, the trademark is everything, because about everyone is able to make a sweet, coffeinated and caramel colored soda or put grilled minced meat in a bun.
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The Pringle's Potato Chip is an example of a patented food (and well deserved I might add) in the sense that you had a stack of uniform chips and something that was rather innovative in terms of a snack food. That patent ran out, so there are now several companies making potato chips which look similar.
Because the round can is a trademark, similar cans can't be used, along with the trademark. I seriously doubt now that the brand is well established that their sales have gone down all that much since the p
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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
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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.
Re:Interesting, but... (Score:5, Insightful)
Duplicating existing drugs is easy. It's not completely trivial, but usually doable by a small lab in a short amount of time. And most of synthesis steps are so generic that they can't be patented in themselves. Their combination can be patented, but it would be trivial to work around it. Oh, and effective patent protection for a drug is about 10 years if you consider the time for clinical trials and regulatory approval.
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You can actually take a chemical which is used as a drug and use it in another field (for example, in a semiconductor development) without running afoul of patents. That has actually happened several times.
A patent on how to make the drug cheaper than someone else will get a patent on that and therefore reduce their cost to produce. A patent on the chemical itself increases the cost of the drug.
You don't get it, do you? For most drugs the price of its manufacture is only a minor part. It's _EASY_ to produce most drugs - that's why generic drug companies can quick
Re:Interesting, but... (Score:4, Insightful)
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"?
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Is there some sort of mom-and-pop pharmaceutical company that is the alternative to Glaxo-Smith-Kline?
Re:Interesting, but... (Score:5, Interesting)
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.
Re:Interesting, but... (Score:5, Interesting)
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.
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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.
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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
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Magic bullets don't generate steady demand, or steady profits. No cure will generate as much revenue as periodic installments of $xx,xxx for treatments.
And due to the high entrance costs, nobody has the money to challenge Big Pharma. And nobody but Big Pharma is willing to take a XX billion dollar risk
Speed to release (Score:2)
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
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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.
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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
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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
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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
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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
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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
Because the USA is pwned by lawyers? (Score:5, Insightful)
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 ;-)
Re:Because the USA is pwned by lawyers? (Score:5, Insightful)
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.
Re:Because the USA is pwned by lawyers? (Score:4, Insightful)
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.
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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.
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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.
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You must have.
http://www.usatoday.com/news/washington/judicial/2010-10-05-federal-prosecutor-immunity_N.htm [usatoday.com]
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Thanks for that story. I agree with their premise that allowing law suits for mistakes would be harmful. But when they break the law there is no way to prosecute or punish? In my opinion, that is the heart of the problem (and not just with Prosecutors). Why do we call it a mistake and have double standards when a person in certain public offices breaks the law? If a Prosecutor hides evidence, tampers with evidence, etc.. it is illegal and it should cost them their license to practice law at a minimum.
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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.
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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:
Go farther (Score:5, Insightful)
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)
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.
Variable time patents (Score:2)
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
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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.
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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'
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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
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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
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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.
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As far as I care, the very idea that ideas can be owned is wrong and a hindrance on e
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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
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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
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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
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Maybe in the middle ages, but certainly not by the time industrial revolution got underway.
Huh? Within less than a decade it was widely used.
What planet do you live one? Pretty much every business I know that's older than ten
Good Idea, Bad Example (Score:3)
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.
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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
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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.
Re:Good Idea, Bad Example (Score:4, Insightful)
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.
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Another Simple Solution (Score:2)
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
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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.
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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
Too much dirty money involved in patents (Score:2, Interesting)
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
"use sof" ?? (Score:2, Funny)
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.
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If I had a mod option for "+0.25 Mildly Entertaining" it would've been yours just now.
Hard to get past his defense of pharma patents... (Score:2)
[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)
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.
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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
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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
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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)
pharmaceuticals are an odd case (Score:3)
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.
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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.).
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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.
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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
Did anyone else read that as parents? (Score:5, Funny)
Were I dictator: (Score:3)
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.
Re:Were I dictator: (Score:4, Interesting)
To construct this, I built it the way you would the rules of a game, or the rules text on, say, a Magic: the Gathering card. Sometimes i think game designers should write the law, because their job is to ensure everything interacts predictably.
Working requirements (Score:3)
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.
Non obvious is the key (Score:2)
Let's actually think it through... (Score:2)
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
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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)
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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Let me get this straight.
You are saying, what if we already had a product but stopped producing it for a variety of reasons?
In which case
Why didn't you patent it while you were producing it?
Also, why should it matter which business you are in? A patent in one sector often has uses in other sectors. Also, it would be trivial for a patent troll to buy a company in a sector to troll with.
Re:Having to produce the patented object... (Score:5, Insightful)
If you stopped producing the object what good does it do society if you're allowed to keep the patent? Other companies should be able to make use of the patent if you don't make use of your government granted monopoly.
Re:Produce? (Score:5, Insightful)
So a troll would just need to have a coder write a proof of concept implementation
fair enough, at least that's far more effort than they currently have to go to. Once they've done that though, you have a defence that you are not infringing - if you perform your task in a different way.
See, there are thousands of mousetrap patents in the US patent files, but in software terms, 'catching a mouse using a device utilising mechanical or electronic or other means' is what is patented, which stops anything remotely related to the vague idea that is part of the patent.
So making the patent holder create a working version would help a lot. Patenting GSM radio networks, for example, would be valid. Patenting a way of sliding an icon to unlock a screen would also be valid - but you could create your own slide-to-unlock as long as it used a different mechanism, just like people can continue to patent their own ways of catching mice.
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See, there are thousands of mousetrap patents in the US patent files, but in software terms, 'catching a mouse using a device utilising mechanical or electronic or other means' is what is patented, which stops anything remotely related to the vague idea that is part of the patent.
Not really. I mean, sure, people rant about Amazon's "one-click" patent, but it really isn't a patent on clicking once. That's just the title, and it barely reflects the claims.
Patenting a way of sliding an icon to unlock a screen would also be valid - but you could create your own slide-to-unlock as long as it used a different mechanism, just like people can continue to patent their own ways of catching mice.
You still can. Like "one-click", "slide-to-unlock" isn't actually a patent on sliding something to unlock something else. That's just the colloquial description. The claims recite:
1. A method of unlocking a hand-held electronic device, the device including a touch-sensitive display, the method comprising:
detecting a contact with the touch-sensitive display at a first predefined location corresponding to an unlock image;
continuously moving the unlock image on the touch-sensitive display in accordance with movement of the contact while continuous contact with the touch screen is maintained, wherein the unlock image is a graphical, interactive user-interface object with which a user interacts in order to unlock the device; and
unlocking the hand-held electronic device if the moving the unlock image on the touch-sensitive display results in movement of the unlock image from the first predefined location to a predefined unlock region on the touch-sensitive display.
Want an easy way around it? If you don't move the unlock image during the gesture, you don't infringe.
Want an easy improvement? If you don't place the un
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How about adding a licensing clause which allows patents to be licensed based on it's actual market value.
They if they put a product on sale for $5000 on their website and nobody buys it, the market value of the license is next to zero and it could easily be licensed.
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Production is still a matter a procedure, which builds on other procedures. But each procedure must serve its own purpose, just like the final product has to serve a purpose.
So patent should be awarded if a procedure is the only way to serve its purpose at the time of intention. The question still remains as to what the purpose is. If finding any energy is the purpose, no invention is needed. If the purpose is to achieve cold fusion, the first procedure to do so in a cost efficient way is an invention.
I thi
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What is producing? Many patents can be implement with a couple lines of javascript or similar. So a troll would just need to have a coder write a proof of concept implementation, put it on the troll's production server. And voila, it's produced.
Presumably, the Judge was thinking that "Produce" means make available for society via sales of a product incorporating your patent.
The failure here is that some patent never appear in a consumer product, rather they are patents cover only machines or tools or processes used in house but which lend a manufacturing advantage to the company using it. If the Judges proposal was expanded to cover that eventuality it would be reasonable. If society benefits indirectly (a cheaper car, fresher fruit
Your example