Why There Are Too Many Patents In America 189
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.
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 ;-)
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: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: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:Interesting, but... (Score:3, Insightful)
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"?
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.
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.
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.
USE IT OR LOSE IT (Score:4, Insightful)
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.
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.
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.