The Man Who Created the Pencil Eraser and How Patents Have Changed 234
fermion writes "This weeks 'Who Made That' column in The New York Times concerns the built in pencil eraser. In 1858 Hymen Lipman put a rubber plug into the wood shaft of a pencil. An investor then paid about 2 million in today's dollars for the patent. This investor might have become very rich had the supreme court not ruled that all Lipmen had done was put together two known technologies, so the patent was not valid. The question is where has this need for patents to be innovative gone? After all there is the Amazon one-click patent which, after revision, has been upheld. Microsoft Activesync technology patent seems to simply patent copying information from one place to another. In this modern day do patents promote innovation, or simply protect firms from competition?"
Revised Summary (Score:5, Insightful)
You know where it went.. (Score:5, Insightful)
I'm working on a patented drinking fountain water filter that will be required by law for use in all public schools, hospitals and train stations - it will also be a law that they must be replaced every 30 days with a recycling fee paid to franchised non-profit companies staffed only by the homeless.
Re:Revised Summary (Score:3, Insightful)
I wish I could mod this post "Sad but True".
Re:Revised Summary (Score:5, Insightful)
Patents have always protected firms from competition. That has always been part of their purpose. Another part of their purpose is to enable some one ordinarily skilled in the art to duplicate the invention when the patent expires. That's the trade-off that justifies patents, as opposed to treating inventions as trade secrets.
What has changed is the definition of obviousness and consequently innovation. Now something is innovative if no one can point to prior art, notwithstanding that it may be obvious to the proverbial someone skilled in the art. Today, the pencil plus eraser would be patentable.
Another thing that has changed is that patents have become so vague that they cannot be duplicated nor can anyone be certain what they cover. This is particularly a problem for business method and software patents.
Re:You know where it went.. (Score:5, Insightful)
What makes you think that the effects of those changes were unintentional?
"Service economy" became "parasite economy" (Score:5, Insightful)
"Service economy" with IP fantasy led to this bullshit world for the West and other developed countries.
And it would. Bureaucratic, parasitic, loophole-exploiting endeavors like lawyering, bankering, lobbying are most rewarded.
The West is rotting from within.
Strategic Warfare (Score:5, Insightful)
The shift in policy is an intentional, if unwritten, strategy intended to keep America a competitive force in the world's economy.
In the past, America's power was based on its vast, untapped resources; steel, oil, cotton, grain, whatever - we had it and could rip it out of the ground cheaply. We sold these resources to the world and became rich. But these days other developing nations are willing to sell their resources far beyond what we can afford, and we can no longer depend on those resources as the primary engine of our economy.
Later, America's strength came from its industry; our factories produced high-quality goods in vast quantities. And we became rich again (well, even richer). But today, we've sold the technology to poorer nations, and their citizens are willing to work for wages that would starve our own people. So America can no longer depend on its industry to sustain it.
So instead, we've turned to our ingenuity and inventiveness as a way to ensure our dominance; our patents, our copyrights, our trademarks. We've hitched our wagon to the idea that our "intellectual property" will keep us a prominent force on the world stage. Of course, an idea is worthless unless somebody is willing to put it to use (the greatest movie in the world won't bring in a cent unless you get people to pay you to watch it). So we make all our ideas available to the world... for a price. And we have greatly bolstered our laws - and made clear our willingness to use force to defend those laws - to ensure that OUR ideas are not used without our receiving adequate recompense.
Except great ideas - the ones that bring in great wads of cash - are difficult to come by (Sturgeon's Law applies with ideas too) and while inspiration can be encouraged, it cannot be forced. So rather than depend on those rare strokes of genius, we ensure that even our less-stellar conceptions are protected the same way as the truly inspired ideas. Patents are increasingly granted on the most insignificant, inconsequential and mundane ideas because it brings in the money.
This is not to say there is some overreaching planned conspiracy; there was never a shadowy group of power-brokers chortling in some dark room as they moved the nation onto this new path. But America has always followed the path of money, and right now the big money is in intellectual property. Keeping its businesses strong makes strategic sense. Thus, we see an increased strengthening of certain laws (or weakening of others) to protect the interests of those businesses.
That's why there is little incentive to revamp the patent system, or bring copyright back down to sensible terms. It's why the American government is pushing so hard to enforce its copyright laws in other countries. It's why there is such a concern about copyright violations and why the Internet scares the people in power so much. American hegemony, they believe, is directly tied to how much intellectual property it owns, and how well it is protected.
Independence of the courts ? (Score:4, Insightful)
In this modern day do patents promote innovation, or simply protect firms from competition ?
The issues regarding patents are not only about patents, but also the courts.
As the pencil and eraser case (circa 1858) has illustrated, the court back then still managed largely to uphold their independence.
Not now.
Today, the courts have become an apparatchik for the corporations, the banksters, the politicians, and the power that be.
Judges back then were chosen based on merits. Judges today are chosen based on who they know.
Re:Independence of the courts ? (Score:5, Insightful)
Judges back then were chosen based on merits. Judges today are chosen based on who they know.
or maybe the are simply incapable to understand the issue. Back then, a patent had one or two pages and described a (mostly mechanical) issue in simple language. Lawyers today make sure that a patent is minimum 50 pages, and some run to more than 1000. The language is extremely formalized and very hard to read for untrained minds. And the issues are so specialized that the average judge would have to train several years in the particular field to understand what the invention is about.
Besides - most patents today have most of their innovation in the way the lawyers complicate simple issues. Sigh.
Re:Independence of the courts ? (Score:5, Insightful)
"Back then, a patent had one or two pages and described a (mostly mechanical) issue in simple language. Lawyers today make sure that a patent is minimum 50 pages, and some run to more than 1000. The language is extremely formalized and very hard to read for untrained minds. And the issues are so specialized that the average judge would have to train several years in the particular field to understand what the invention is about."
Maybe, but -- though I hate to put it this way -- it's really not that simple. Complexity has little to do with the subject under discussion.
The one-click patent, for example, should never have been awarded because it did nothing new.
Not only must a patent be non-obvious to someone in the relevant field, and not only must there not be "prior art" (someone else already doing something too similar) it must also be an actual invention. That is to say, it has to be or do something completely new. The point made by the court in OP's post is that it was not an invention because it was just two common things, stuck together.
A can opener welded to a crowbar is not patentable, because it doesn't do anything new or in a novel way. It's still just a can opener on one end, and a crowbar on the other. But if you stuck two common things together in such a way that the result does something new, then you have a patentable invention.
If you found a way to make a fan that blows air out of potato chips, in principle that would not be patentable, because you just "stuck together" two existing things; fans and potato chips. It doesn't do anything novel. But if you could build a fan out of potato chips in such a way that it was still edible, you would have a patentable invention because it does something new.
Re:Independence of the courts ? (Score:4, Insightful)
Well, most (not all) computer software related patents run maybe 20-25 pages double spaced, plus figures. As a printed issued patent, they're a good bit shorter than that page-wise. Very few go a thousand pages long, because it costs extra.
The real problem in the courts is, as you say, that the judges have very little expertise in the relevant arts. Thus, each side presents its expert witnesses who say the exact opposite thing from each other (look hard enough and you can find an "expert" to support just about any argument you might have), and the judges are none the wiser.
At the PTO, you're right that attorneys draft applications to intentionally confuse. Claims are drafted using vague language for the sake of vagueness, which results in claims that cannot practicably be fully searched. The objective is in many cases not to get a good patent, but just something with a patent number on it, because attorneys know that even a bad patent has value if nobody is willing to pony up the cash to challenge it. The PTO is hamstrung in addressing these issues by the case law, which says that vagueness is not the same as indefiniteness, and so we can't reject claims solely for being vague if the scope of the claims can be discerned.
The only place we get any real sanity is (in sparing quantity) from the Supreme Court, who occasionally say things like, this is clearly an abstract concept, so it's not patentable, or this is just common sense, so it's obvious, or what have you. When this happens, it helps the PTO and the courts weed out some subset of the bad applications and patents. But out of all the patent cases litigated every year, maybe one or two of them make their way to the SCOTUS, so arriving at eventual sanity will take a long, long time.
Re:Easy: Incentives (Score:4, Insightful)
The reason we have such crap patents right now is the bumbling fumbling stumbling Congress.
In 1982, in order to address various problems with the patent rulings being inconsistent they established the US Court of Appeals for the Federal Circuit.
This court is a Frankenstein's monster. It has created a whole new body of law by allowing such insanity as business process patents. This law has created an atmosphere so favorable to applicants and their assigns that every life-form that can croak out an 'idea' in front of a patent attorney has a chance to become an inventor.
Of course the result of this is the patent office is deluged with applications. THE HAVE NO CHANCE to process all these applications in a moderate fashion. So they are forced to take the attitude 'approve the application and let the Courts sort it out'.
That only encourages the greedy to make more garbage applications.
The Patent Office fee system was a clumsy and ineffective attempt to apply brakes to this runaway train by increasing the cost of applying and maintaining patents. You might as well try to piss upwind into a hurricane.
Right now the US Patent System is a great hindrance to innovation and economic growth in America. Will it get fixed? There is a good chance it will, because stuff like patent trolling is hurting even the big companies.
Re:Independence of the courts ? (Score:5, Insightful)
Patents are only supposed to be awarded to things that do something new, or that do things that are not new, but in significantly different way. The pencil + eraser example does neither.
Re:Independence of the courts ? (Score:5, Insightful)
The usa patent system doesn't really use the "non-obvious" test. Non-obvious is supposed to be non-obvious to a qualified practitioner of the field in question. I'm pretty sure I could have implemented one-click if asked.
The USA patent system seems to operate on the the basis of "if we can't find a patent for it then we'll patent it". The bar is set much too low.
Re:Independence of the courts ? (Score:4, Insightful)
AGAIN. How many pencils could erase out of the box?
None, and still none. The pencil doesn't erase, the eraser that came attached to it does. An eraser erasing isn't surprising or revolutionary.
How do you attach that common pencil to that common eraser?
By your ridiculously low standards, this guy from a post I saw on reddit [imgur.com] should be able to patent his phone stand made out of a paper clip. And it's actually more ingenious than the pencil eraser because the paper clip wasn't made for that purpose.
As people have already explained to you, the requirement for a patent isn't just that it be something new. It has to also be something that is not obvious. If you didn't encounter any technical challenges you had to solve to make your idea work once you had your idea, it's not patentable. If people had constantly tried to put erasers on pencils before, but nobody succeeded until this guy came out with a way to manufacture an eraser such that it could go on a pencil, that design would have been patentable, but others would have been free to come up with their own alternative designs to put erasers on pencils. Turns out that's not necessary, because the design is trivial.
Re:Independence of the courts ? (Score:4, Insightful)
The purpose of patents is to not create a mindless virtual land grab. Patents don't exist to create a new form of property. Patents exist to encourage the disclosure of useful things that would otherwise remain secret.
At the heart of any patent, there should be some trade secret.
There should be something worth keeping secret.