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MSM Noticing That Patent Gridlock Stunts Innovation 233

trichard tips a column on the editorial page at that most traditional of mainstream media, the Wall Street Journal, arguing the point (obvious to this community for a decade) that the US patent system costs more than the value it delivers. The columnist is L. Gordon Crovitz and here is an excerpt: "New drugs require great specificity to earn a patent, whereas patents are often granted to broad, thus vague, innovations in software, communications, and other technologies. Ironically, the aggregate value of these technology patents is then wiped out through litigation costs. Our patent system [is] a disincentive at a time when we expect software and other technology companies to be the growth engine of the economy. Imagine how much more productive our information-driven economy would be if the patent system lived up to the intention of the Founders, by encouraging progress instead of suppressing it."
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MSM Noticing That Patent Gridlock Stunts Innovation

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  • ORLY? (Score:5, Insightful)

    by Anonymous Coward on Tuesday July 15, 2008 @10:48PM (#24207575)

    we-could-have-told-you-and-did dept is right

    • Re: (Score:2, Insightful)

      we-could-have-told-you-and-did dept is right

      Most insightful comment ever :-)

    • by EmbeddedJanitor ( 597831 ) on Wednesday July 16, 2008 @12:11AM (#24208159)
      Just ask the USPTO and patent lawyers!

      The patent system is run by the USPTO + lawyers primarily for their benefit. They control it and their "experts" will drive any future changes in patent processes. From their perspective it is generating great value and there is very little motivation for change.

      USPTO generates a healthy profit for Uncle Sam too. USPTO makes the same on a low quality or a high quality patent. All that matters is volume. Therefore the system favors cranking out many low quality paptents.

      Cranking out patents generates good income for lawyers too. But the real money comes in when a patent is contested. This happens mostly when the patents are low quaility. Therefore patent lawyers score more out of low quality patents than high quality patents.

      Therefore the whole system is set up to provide better revenue by generating many crap patents. Don't expect the system to change any time soon!

      • by Aceticon ( 140883 ) on Wednesday July 16, 2008 @03:06AM (#24209153)

        Internationally, the number of patents issued in a country is often cited as a proxy for Innovation.

        Thus there are even political reasons to keep issuing patents to ideas - it means that the US is praised as the most "innovative" country on Earth since more patents are issued in the US than anywhere else.

        • by damburger ( 981828 ) on Wednesday July 16, 2008 @04:50AM (#24209689)
          In the Soviet Union in the 1950s, sofas kept getting bigger and bigger because furniture factories had their productivity measured by how much wood they used...
          • Re: (Score:3, Insightful)

            by mpe ( 36238 )
            In the Soviet Union in the 1950s, sofas kept getting bigger and bigger because furniture factories had their productivity measured by how much wood they used...

            IIRC there were transistor radios made which had transistors which were not electrically connected. Because the number of components was seen as a metric of how good the radio was. This seems an even better analogy with the USPO.
        • "number of patents issued in a country is often cited as a proxy for Innovation" and the earlier post ... "The patent system is run by the USPTO + lawyers primarily for their benefit"

          Given these above issues about the people who run the patent system, it points towards a trend, especially when combined with a thought I posted a while ago, which is...
          "as we live in a world where some people are determined to control others, then everyone else has no choice. Unfortunately a minority of people, seek power o
          • "we live in a world where some people are determined to control others, then everyone else has no choice. Unfortunately a minority of people, seek power over others and they are obsessed with finding new ways to control other people (for their own gain), but what they fail to realize, is their acts of control create a pressure for change away from their control. The power seekers throughout history have tried to create a bias in their favor, but it never lasts."

            Plutocrats are pitiful faux-prophets (or is that for profit) politicians (not civil servants), corporatist (not capitalist), clergy (not local clerics), aristocrats (not mentally and emotionally healthy people) ... we know them by their reach for what is not theirs and by many name titles and names.

            All plutocrats are scurrilous sycophants seeking slavery and subjugation of others by usury, dejure, and/or dogma, because as people they are without human values/honor. All pluto

        • Re: (Score:2, Insightful)

          by tambo ( 310170 )
          Internationally, the number of patents issued in a country is often cited as a proxy for Innovation.

          That would be a pretty silly metric, since in any country - including the U.S. - many (most?) patent applicants are foreign companies.

          The rate of patenting in a country is a good measure of the strength of a country's economy, since it relates to the interest of companies in selling their products there. But the USPTO has no control over the strength of the economy - no one will praise a patent office fo

      • by Kooshman ( 248753 ) on Wednesday July 16, 2008 @04:20AM (#24209571)

        To my understanding, the USPTO is entirely aware and quite unhappy with the recent turn of events. For better or worse, it does not have much influence over how the system works, leaving the decisions to the political machinations of others-- ostensibly, well-funded lobbiers and greedy legislators. And the latter hold most of the blame.

        You see, the USPTO used to be funded out of the general coffers, leaving the patent fees as a nice little christmas bonus that served mostly to keep people from wasting the PTO's time. Then, our legislators decided that it would make better fiscal sense to let the fees fuel the Office itself rather than shuffling things back and forth. But wait, there's more! The PTO only gets to charge the legislature-set rates, and then its coffers get raided for 10% of their earnings. So now the patent system gets screwed up because our Beloved Congressmen figured out a way to make a bit of money off the deal.

        Thus, the PTO has to float itself off of fees-- but can't set the fees to costs, or even hold on to all the money once they've received it. This is why they have to work on a strict quota system; there's no space to make allowances for things like, say, the size of the patent application. A 20-page peanut de-sheller gets the same time as a 200-page biofuels refinery.

        Oh, and if the party trying to get the patent appeals a decision? (implicitly, a negative one) That time doesn't get added to the quota. See the problem now? When they have to figure out some giant software patent (or other useless/obvious/previously designed idea), turning it down creates more work that they don't have time for. So the examiners don't have time relative to the size of the claim, nor do they get time allocated for them to go through and fight the appeal when they turn it down. The system naturally leads to allowing exactly the outcome seen here; the Office itself has merely responded to outside pressures and control.

        So, if there's anybody who's been most directly screwed with the patent system, it's the PTO (and its stalwart examiners). And it's our fault, because the fundamental, systematic problems came because of greedy, reprehensible legislators riding high on massive voter apathy.

        • Ladies and gentlemen, we have a winner!
        • by Z00L00K ( 682162 )
          So to improve on the current system the PTO should be required to pay all costs related to a patent dismissed in court.

          In that way they would be more careful to grant bad patents.

        • by mavenguy ( 126559 ) on Wednesday July 16, 2008 @08:08AM (#24210613)

          While you make some good points I must comment on some of them to give some perspective from my view as a former patent examiner who started back in the 1970s and, after a hiatus, is back on the "other side" as a patent agent.

          The essence of my complaint with your comment is the tone that posits the poor, poor PTO against the greedy and corrupt politicians and applicants. While I agree that, at least as that applies thoroughly to the politicians there is plenty of blame to laid at the feet of the self perpetuating PTO management, the so-called permanent bureaucracy, who survive and select their successors from political administration to political adminstration, from Congress to Congress.

          The production system, set up in 1960s as "goals" and given real teeth with the introduction of the Performance Appraisal Plan formulated in response to Carter's Civil Service Reform effort assigns an average "expectancy" in each art area against which examiners are measured (anything less than 90% is unsatisfactory; falling below that generates first an oral warning to get it above by three months; failing that a written warning with another thre months; failing that, being fired) the achievement is an average; examiners are not measured on an individual application basis, so an examiner is free to allocate his/her production requirment as he/she sees fit. Obviously if more time is spent on more difficult cases, less time must be spent on other cases, simple or not. Examiners get credit toward their production for each first action on the merits (FOAMs) and each action in the nature of a disposal (allowance, abandonment, examiner's answer for an appeal). Examiner's can write off some time for specified tasks, but all remaining time is "examining time") and is figured in calculating production. And, if the applicant appeals, the examiner writes an examiner's answer to the applciant's appeal brief and gets a disposal count. The case goes up to the board and returns after decision; if reversed or affirmed in part the examiner passed the case to issue but gets no further count; if affirmed it just gets noted and sent to abandoned files (court appeal is possible but that is very rare).

          Because measuring things like search adequacy, rejection/allowance judgement are somewhat subjective but metrics sucha s production, workflow standards are objective and that meeting or exceeding the latter contribute to the "good" of reduced pendency management of the patent examining corps has be, at a fundamental level, been based on these metrics. Any issues with quality primarily arise from outside pressure, which management responds with all kinds of initiatives such as "quality review" or "second pair of eyes" but nothing to do with really improving search effectiveness or giving more average time pre case so that the best prior art is likely to have been developed in most of the applications.

          Currently outside quality criticism (cat pointer, swinging on swing) have lead to a reject,reject, reject mantra, which has had the effect of lots of crap rejections being cranked out; lots of cases have been pending even longer because lots of non-final rejections comming from newbies who are not finding good art and just keep sending out easily refuted rejections after being goaded by supervisors to get better art and to keep making new (yet still junk) rejections. Management is in a trap of their own making from decades ago and now they can't even dig themselves out of it despite an unprecedented hiring orgy which scoops up lots of low production newbies, many of whom don't last more than two or three years. And, in any case, most managers doen't realize this, and just insist that examiners are lazy, incompetant dolts who (with the rare exception of those promoted into management) can't meet their simple, common-sense demand to just crank out thoroughly search and argued actions in the time allotted, preferably less so as to reach the Office goals for reducing pendency. Although all top civil service managers came from the examanin

          • by tambo ( 310170 ) on Wednesday July 16, 2008 @09:57AM (#24211775)

            The essence of my complaint with your comment is the tone that posits the poor, poor PTO against the greedy and corrupt politicians and applicants.

            Yep, that's a common misconception that warps many arguments about the USPTO (here on /., in Congress, and everywhere in between.)

            The USPTO is not supposed to be the opponent of the applicant that issues patents only when it is defeated. It is not supposed to be a stopgap, or a dam regulating the rate of innovation.

            Rather, the USPTO is supposed to be an impartial body that researches the technology, compares the invention to the prior art, and reaches the right conclusion about whether the application should be issued. Correctly issuing a patent should be just as joyous an occasion for the USPTO as correctly denying a patent.

            Unfortunately, many forget that this is its role. These days, that includes USPTO management, which loudly and often proclaims its goal of raising its rates of rejection. Its efforts these days are mostly about giving examiners more power to reject applications, and throwing more arbitrary obstacles in the path of applicants.

            Criminal prosecutors are tasked with proving the occurrence of crimes - NOT with increasing the number of people sitting in jail. Those are two very different goals, right? Same with the USPTO... it's lost its focus.

            - David Stein

            • Re: (Score:3, Insightful)

              by monxrtr ( 1105563 )

              that includes USPTO management, which loudly and often proclaims its goal of raising its rates of rejection.

              That's what they should do. There has never been a valid patent granted, and there never will be. Raise those rejection rates to as close to as 100% as possible. Raise the fees, dramatically, like adding two zeros to them, to decrease the number of applications. Double the fees each time an additional patent is applied for by the same corporate group in the same year ($100,000, $200,000, $400,000 ...)

              You'll never look like a fool rejecting any patent (just like business managers and mutual fund managers chi

        • by tambo ( 310170 ) on Wednesday July 16, 2008 @09:29AM (#24211347)
          For better or worse, it does not have much influence over how the system works...

          It has lots of influence over how the system works - it is the system. There are only three restraining forces on the PTO:

          1) Budget constraints (I'll get to this point in a minute);

          2) The limitations of its role as an administrative agency (its rules have to be administrative, because substantive rule changes [like "this general class of inventions is or isn't patentable"] are the jurisdiction of Congress); and

          3) The text of the law, including the U.S. Constitution, and the international treaties signed by Congress.

          There's a whole lot of freedom inside these boundaries. The USPTO has almost complete control over *how* the system runs, even if it can't arbitrarily decide *what* it's supposed to accomplish.

          The PTO only gets to charge the legislature-set rates, and then its coffers get raided for 10% of their earnings.

          Your information is out of date. Fee diversion at the USPTO has been brought to an end over the last four years.

          This is why they have to work on a strict quota system; there's no space to make allowances for things like, say, the size of the patent application.

          This is a serious problem - one of many arising from the asinine productivity requirements set for examiners by USPTO management. There are MANY problems with that system... but the effects are sufficiently downstream that blame can (and usually is) shifted to applicants, Congress, blah blah blah.

          The system naturally leads to allowing exactly the outcome seen here; the Office itself has merely responded to outside pressures and control.

          Which outcome do you mean? Yes, the examiner is being time-constrained from a more effective examination (by the PTO's productivity rules.) But examiners are ALSO being pressured by their supervisors ("SPEs") from issuing these applications - particularly in some groups (*cough* software.)

          The result is churn: applications that are kicked around from examiner to examiner, where no one can come up with an effective basis for rejection but no one is allowed to issue it. Churn is bad for *everyone* - the applicant, the examiners, the USPTO, and the industry in general. And there's a whole lot of churn at the USPTO.

          And it's our fault, because the fundamental, systematic problems came because of greedy, reprehensible legislators riding high on massive voter apathy.

          Sad... your post was otherwise sound and logical... did you *have* to cap it with this bit of pandering to the /. crowd?

          Congress has almost nothing to do with the state of the USPTO. They rarely amend the patent act, and when they do, it's with small changes. Several "patent reform acts" (of varying quality, but all under-informed) have been kicked around within Congressional subcommittees, but none has received traction. And the one area that Congress controls - budgeting - has been resolved in the USPTO's favor.

          The *real* source of the problem is a long chain of ineffective PTO management. People get appointed to manage the PTO not through experience or leadership potential, but as a political favor. If you want to blame a branch of the federal government for that... then how about the one that does the appointing? (hint: it's not Congress.)

          - David Stein

        • by Machtyn ( 759119 )
          I wouldn't necessarily say it was our fault, even though we did vote the greedy jerks into office. The problem is our choices are between two or three greedy jerks, we really don't have much choice in that. And the ones who might fix the system are squashed by those in power/higher rank or don't have enough money to mount a successful campaign. (And when one does come along with his/her own money sufficient to run a successful campaign, (s)he's accused of trying to buy the office.)
      • by tambo ( 310170 )

        Just ask the USPTO and patent lawyers!

        *sigh* Any post that begins by conflating the interests of the USPTO and patent lawyers - two completely different groups with orthogonal goals - is difficult to take seriously. But looking past that...

        The patent system is run by the USPTO + lawyers primarily for their benefit.

        No one at the USPTO is getting rich off of the patent system. It's an administrative agency that sits there and fulfills a task. Government salaries suck with comparison to the public sector.

        Um,

        • Any post that begins by conflating the interests of the USPTO and patent lawyers - two completely different groups with orthogonal goals

          How so? Don't they both (directly or indirectly) make more money the more ptents are granted?

      • USPTO generates a healthy profit for Uncle Sam too. USPTO makes the same on a low quality or a high quality patent. All that matters is volume. Therefore the system favors cranking out many low quality paptents.

        What the hell is a paptent? Is it related to a puptent? Or is it more like a papsmear? :)

        Seriously, though, the USPTO is not a profit generator. We spend around 1.7 Billion a year to fund the USPTO... although patent (and trademark especially) fees help offset some of the cost of running the USP

  • MSM? (Score:5, Insightful)

    by Anonymous Coward on Tuesday July 15, 2008 @10:49PM (#24207579)

    Am I ultra-unhip because I didn't know this was an acronym for "MainStream Media" without having to figure it out?

    • Re:MSM? (Score:5, Funny)

      by mcpkaaos ( 449561 ) on Tuesday July 15, 2008 @10:57PM (#24207627)

      Considering the first line of the summary says "mainstream media", I think this does in fact mean you are ultra-unhip.

      I suggest you get in line right now for the new iPhone and stay there until your hair naturally spikes itself and you sprout a pair of Oakleys.

      • Re:MSM? (Score:5, Funny)

        by TubeSteak ( 669689 ) on Tuesday July 15, 2008 @11:57PM (#24208053) Journal

        I suggest you get in line right now for the new iPhone and stay there until your hair naturally spikes itself and you sprout a pair of Oakleys.

        I'm holding out for the next iPhone, in the hopes that I'll also sprout a pair of Birkenstocks.

      • by StarkRG ( 888216 )

        I really think that's what AC meant by "figure it out" I too had to "figure it out". I kept thinking some branch of Microsoft had suddenly decided to stop wandering around with it's eyes closed. (Which is about as crazy a concept as an oil tycoon [pickensplan.com] saying drilling for oil won't get us out of this mess...)

    • Re:MSM? (Score:5, Informative)

      by Mesa MIke ( 1193721 ) on Tuesday July 15, 2008 @11:05PM (#24207691) Homepage

      Don't worry.
      Being ultra-unhip is the essence of geekdom.
      Hip geeks are just poseurs.

  • by techno-vampire ( 666512 ) on Tuesday July 15, 2008 @10:55PM (#24207613) Homepage
    From what I understand, patents are not supposed to be granted for ideas, or methods, only for implementations. If this principle were followed, you couldn't patent, let's say, the RSA public key encryption scheme, although you could patent a program that implements it. Patents (in the US, at least) were never intended to cover such things as business methods, algorithms or "doing $FOO with a computer." If we stopped letting people get patents for things that should never have been allowed, and invalidated that type of patent the moment anybody tried to enforce it, the gridlock would go away. If you want to protect your programs, use copyrights; that's what they're for. If you want to protect your business methods, use existing trade secret protections. Use patents to protect things, because that's what they're for.
    • by tepples ( 727027 ) <tepples@@@gmail...com> on Tuesday July 15, 2008 @11:02PM (#24207665) Homepage Journal

      From what I understand, patents are not supposed to be granted for ideas, or methods, only for implementations.

      Every idea is an "implementation" of a more general idea. There are 1. video games, then 2. puzzle video games, then 3. puzzle video games with falling blocks, then 4. puzzle video games with falling blocks that can be rotated, then 5. puzzle video games with falling blocks that can be rotated and line up x-in-a-row of the same color, then 6. puzzle video games with falling blocks that can be rotated and line up x-in-a-row of the same color to eliminate floating blocks. Nintendo has a patent on 6. So where does "idea" stop and "implementation" begin?

      • Re: (Score:2, Insightful)

        by Anonymous Coward

        Idea = "puzzle video games with falling blocks that can be rotated".

        Implementation = Tetris.

        Seems pretty obvious to me. Implementation is an instance of an idea.

        • by Anpheus ( 908711 ) on Tuesday July 15, 2008 @11:31PM (#24207895)

          This still makes it confusing, if that were the case, then that's copyright. Not a patent.

          I think patents need to be brought into Newton's era. You can only patent implementations of mechanisms that perform some physical process. Novel methods of performing some process would be protected, but not the end result.

          So you could patent -a- process to produce a particular drug, but not that drug. If someone else goes to the lengths of finding an alternate and viable method of producing a drug, then sorry.

          You could also patent -a- process to perform floating point math in a CPU, but not the floating point math itself or the result of any particular operation. If someone else figures out how to do the same thing, meh.

          Copyrights should protect creative works, trademarks protect those who engage in trade and patents protect processes.

          Copyright = uniqueness of creative work
          Trademark = uniqueness of trade identity
          Patent = uniqueness of process

          • Re: (Score:3, Insightful)

            by Thanshin ( 1188877 )

            If someone else goes to the lengths of finding an alternate and viable method of producing a drug, then sorry.

            And how do you define "alternate"?

            Is an alternate method one that seems exactly like the original but using blessed water so the result is holier.

            What about a method that uses a component that you assume to be equal (water) but that your opponent in the patenting sees as different (water with undetectable infinitesimal traces of a nocive element).

          • That's exactly why patents on software should not work.

          • So you could patent -a- process to produce a particular drug, but not that drug.

            What about patenting a drug as part of the process of reducing illness in a person?

          • by Rich0 ( 548339 )

            I can think of a few flaws with this idea, even though I like some of it:

            1. The results with the drug industry would be huge and probably not what is intended. Why have drug patents at all when it costs $500M to fully develop a drug and probably only $1-2M to come up with a new process for making a drug. Drug companies would just sit and wait for somebody else to invent drugs and then find a new way to make them, and there would be no new drugs unless the government did all the work. If you want that th

        • by Suhas ( 232056 )
          > Seems pretty obvious to me. Implementation is an instance of an idea.

          Great. Who would have thunk that patents were object oriented.
      • Re: (Score:2, Insightful)

        IANAL, but here's my Rule of Thumb :

        1. Patents protect novel ideas

        2. Copyright protects actual implementation

        So a given implementation that embodies a patented idea is protected by both the patent and its own copyright.

        Hence a different implementation may still violate the patent, but will not violate copyright of some other implementation.

        The silliness in the patent system has come about because patent offices too often judge 'new' ideas to be 'novel', as opposed to 'obvious to those skilled in

        • IANAL, but here's my Rule of Thumb : 1. Patents protect novel ideas 2. Copyright protects actual implementation

          That doesn't work for physical devices (e.g. this CD player next to me is not copyrightable, no matter how many unique features it may have).

        • by tambo ( 310170 )
          1. Patents protect novel ideas 2. Copyright protects actual implementation

          Errr... um... that's not going to work.

          Copyright covers artistic works, and is limited to the aesthetic qualities expressed in the work. Works that aren't "artistic" in some way aren't covered at all. Machines, chemicals, industrial processes, etc. - these aren't artistic in any way.

          Unfortunately, copyright has been ssttttrrrrreeettttchhhed to cover software products, on the VERY tenuous theory that EVERY act of writing softwa

      • by jd ( 1658 ) <imipak@@@yahoo...com> on Wednesday July 16, 2008 @01:34AM (#24208679) Homepage Journal
        Reification is the process of taking something abstract and making it more concrete. It's a useful concept to use, when talking about implementations versus specifications. Ok, can we specify a level of reification at which something can sensibly be called an implementation? If the answer is yes, then it doesn't matter if you can reify the concept further.ed

        Now, what can we say about the abstract? Well, there are (a) generalizations, and (b) there are specifics missing, without which the specification cannot be converted into a narrow set of possible implementations. Abstract data types, for example, say nothing about the language they would be written in, how they are to be implemented, or even what the actual programmatic interface will be.

        Let's say we narrow some things down. We've defined implementable data types, we've defined the primary programming language and (if need be) dialect, we've defined a style (eg: procedural vs. functional vs. OO vs. 5th Generation), we've defined at least one target architecture (be that a specific JVM or a specific piece of hardware), we've defined the exposed API and we've defined some means of testing compliance to these requirements in a computable, programmatic fashion.

        You now have something you can white-box test. That's close, but I don't think it goes quite far enough. Let's add one more requirement: A sufficiently large range of externally-used functions, internal APIs, data types and invariants are also defined such as to produce a high level of confidence through testing that what has been written is indeed what was designed.

        THEN you have something that's as solid as, say, a car. You can always add extras to a car, so that is still "abstract" in some sense, but it's solid enough. You can test the controls within the car, and perform basic observations on things like whether the engine is running, to establish that it is indeed a car and not a pile of scrap. I would argue that software could be considered "implemented enough" once it had reached the same level of solidness and reality as a model of car from the manufacturer.

      • Patents should give a significant contribution to the state of the art, in exchange for the temporary monopoly granted to the patent owner. I think you have a patent-worthy "implementation" when your description is

        1)detailed enough that someone who knows the field in general can build the item without further instruction. For your example, that would be the average guy with a degree in CS.

        2)not obvious in the sense that said average software engineer would come up with it within a few hours when asked for a

        • by tepples ( 727027 )

          In this case, I think the full description of Tetris in 6. (barely) qualifies as "not obvious".

          Nit: It wasn't Tetris; it was Dr. Mario and Nintendo's so-called "Tetris 2". The original Tetris doesn't involve color matching and would probably read on only the first four "claims" that I mentioned. In fact, the Dr. Mario patent cites Tetris as prior art.

      • by homer_s ( 799572 )
        Conversely, every 'implementation' is nothing more than an idea. If I try to patent a device that does FOO, the only thing of value in that is the idea to put together the metal,plastic,silicon,etc in a novel way to do FOO. The metal,plastic & silicon always existed and hence have zero value.

        The solution to this mess must come from a deeper level than just 'implementation' vs 'idea'.
        • Conversely, every 'implementation' is nothing more than an idea.

          Depends. Idea covers a range of things, from a pretty detailed concept of how to make w working example of something to a wish that something existed. Patents for the latter are most of the trouble.

    • by QuantumG ( 50515 ) * <qg@biodome.org> on Tuesday July 15, 2008 @11:08PM (#24207721) Homepage Journal

      Actually, patents are supposed to cover methods and apparatus, and they always have.

      When you're granted a patent it is supposed to cover *how* something is done. Unfortunately a lot of patents are so broad as to actually cover *what* is being done. These patents should be denied.

    • by hardburn ( 141468 ) <hardburn AT wumpus-cave DOT net> on Tuesday July 15, 2008 @11:45PM (#24207989)

      The trouble is that software blurs the distinction between a device (patent) and a work (copyright). The distinction used to be easy. If you had a new type of engine, you got a patent. If you wrote a book, you got a copyright. But software is kinda like writing a book (so it should be copyright), yet it is used to build the internals of an infinitely modifiable machine (so it should be patented).

      This is going to get worse as home 3d fabrication like RepRap becomes more common. Software is now being used to build a physical object, thus eliminating the patent/copyright distinction. At a TED conference [ted.com], an MIT professor talked about a fab method they apparently have going in the lab, where computation is done by arranging molecules; in theory, you could compute yourself a new car. Just imagine what that will do to the patent/copyright distinction.

      The end result is that a new form of IP will have to be developed that will combine copyright and patents. In the US, this is probably going to take a constitutional amendment, which almost dooms the effort from the start.

      • by cpt kangarooski ( 3773 ) on Wednesday July 16, 2008 @12:15AM (#24208173) Homepage

        There's really no problem at all. The thing is, there's no requirement that a piece of software be protected only under one legal regime. The regimes do not overlap, but they can each protect different aspects of the same software.

        In copyright, there is the idea/expression dichotomy, which results in copyright protecting the implementation of an idea, but not the underlying idea itself. In the case of software, this would mean that all of the algorithms of a program would be uncopyrightable, but the way in which they were written would be copyrightable. So long as you write them a different way (or write them the same way independently, without having copied; or write them the same way due to some functional consideration, such as the dictates of efficiency, of a particular platform, language, etc.) you're fine. For tangible objects there is also the utility doctrine, which prevents the working parts of machines, for example, from being copyrightable.

        Patents, OTOH, protect inventions, however they happen to be embodied. So if you invented some bit of functionality, the patent would apply regardless of whether someone copied what you did, or independently came up with it. It would apply whether their code was bit-for-bit the same, or whether they implemented the same invention in a totally different way which still fell under the patent. Of course, if they can achieve the same end result by a different method, then that's not infringing.

        So in sum, copyrights are used to prevent people from copying particular bits of source or binaries, but patents are used to prevent people from making identically functioning software, regardless of copying.

        Software patents are bad because they're so wasteful, not because they're ill-defined. They're not incentivizing invention, disclosure, and bringing-to-market in the computing field, and are probably hindering it. Since patents are meant to cause more of those things, at the least public cost, the best option for software would be to not offer patents. In the future, we can reexamine the field to see if the natural incentives present are no longer sufficient, and the artificial incentive of patents should be added. But right now, it's a bad idea. Ditto for business methods. That's also such a naturally fertile field that we don't need patents.

      • The endgame here is that matter will be software, and software can be physically represented in matter.

        With technology advanced to that stage, the only way you are going to be able to enforce patent/copyright is at gunpoint. Why?

        Imagine there is an immortality drug or some other life-saving invention patented/copyrighted. You can make it yourself for free but cannot afford the licence. What will you do? Save your life, of course.

        Note that in the free world you can make patented things for personal use and r

    • by davester666 ( 731373 ) on Wednesday July 16, 2008 @01:15AM (#24208577) Journal

      That seems to be how the drug companies are artificially extending their patents by finding new uses for their drugs or patenting the drug with a different coating on it.

      • by Rich0 ( 548339 )

        Well, the solution to that is simple enough. Prevent competitors from making the pill with the new coating, but allow them to make the pill with the old coating, or whatever.

        I think that is actually how it works, but some unethical companies use various loopholes to tie up competitors in litigation over what is essentially legal activity, and regulators allow the loopholes to remain.

        Not all pharma companies actually stoop to these tactics. Some have gone on the record stating that they will only enforce t

    • by patro ( 104336 )

      From what I understand, patents are not supposed to be granted for ideas, or methods, only for implementations.

      I think implementations shouldn't be patentable either. Innovation would happen anyway, because companies have to come up with something new in order to be better than the competition. Also, dedicated inventors and scientists would continue to crank out new ideas and inventions, because this is what drives them. It's their life.

      So we could abolish the whole system and the costs and litigation associated with it. Technological develoment wouldn't grind to a halt, and it may even be faster without the artific

      • Innovation would happen anyway, because companies have to come up with something new in order to be better than the competition.

        Company X spends 100M developing a new drug. Company Y saves 100M, copies the drug, and uses that money on marketing and undercutting X. Company Y drives X out of business.

        Also, dedicated inventors and scientists would continue to crank out new ideas and inventions, because this is what drives them. It's their life.

        Presumably these inventors and scientists live in a climate wher

        • by patro ( 104336 )

          Since the ideas and implemenations will be shared instantly there will be no point in a single company spending so much for development. The costs will be shared between hundreds of companies, each doing a part of the job.

          The inventors will be employed by these companies.

          It's an entirely different model which is hard to grasp with our current mindset. The above is only a guess. I'm sure people will come up with creative ways to adapt to the new situation.

          • Except there's no compulsion for any one company to pay its fair share into the research pool - they could save money by leeching, and as soon as one of them does they'll all start. You're back exactly to the situation I described.
        • Company X spends 100M developing a new drug. Company Y saves 100M, copies the drug, and uses that money on marketing and undercutting X. Company Y drives X out of business.

          This would only happen a few times, because eventually company Y would run out of money because companies Z, Q, R, F, G would also all produce the product. Without new products, all companies will die. Company Y (or Z, etc.) would then choose to develop something new to get an edge on the others or collapse. Most people choose to try to

    • by zQuo ( 1050152 ) on Wednesday July 16, 2008 @03:13AM (#24209205)
      Copyright should be plenty to protect software. The original IBM PC had a PC BIOS firmware that was the stopping block for creating PC clones.

      http://en.wikipedia.org/wiki/Phoenix_Technologies [wikipedia.org]

      Phoenix went through an elaborate clean room process to create a non-infringing BIOS implementation that could be proven to be an original work and not a copy. The effort they went through (and all of us benefit!) was probably more expensive than writing the original BIOS. It was worth it as it led to all the PC clones, but consider the effort involved to overcome just a software copyright.

      If they had software patents back then, not only would the clones not have been available, but broad patents on all the ideas implemented in the BIOS would have tied up almost all subsequent BIOS type firmware, so that almost no personal computer could have been built at all! Including the Mac, Amiga, etc. Software is an implementation of an idea, and the ideas should not be patented. Software copyrights are about protecting the implementation, and that is plenty of protection.
    • by pbhj ( 607776 )

      From what I understand, patents are not supposed to be granted for ideas, or methods, only for implementations .

      You understand wrongly.

  • The costs of patents (Score:5, Interesting)

    by starseeker ( 141897 ) on Tuesday July 15, 2008 @11:21PM (#24207809) Homepage

    Businesses spend MASSIVE amounts of money either filing patents for offensive/defensive activities or trying to work around them. I would be very interested to see an accounting of a) what percentage of patents actually result in a license b) what the cost in terms of employee and lawyer time was to create the current body of patent work (plus the fees of course), c) the number of decisions to NOT make a competing product due to patent issues, d) the number of patent cases resulting in a patent being invalidated e) the number of patent cases settled out of court for less than the legal fees to challenge the patent f) (this is complex) the number of patents with BOTH cases settled out of court for less than potential legal fees and with existing patent licenses before the litigation and finally g) the ratio of licenses taken out on a patent to the number of observed workarounds (and patents on the workarounds) done by companies to avoid said patent.

    If the ratio of a to b is very small, it would mean that there would have to be MASSIVE returns on license fees to justify the money paid to create patents. Otherwise we the customer are footing the bill for the horse and pony show.

    c is hard to document, but every instance where it happens is one less competitor and in a capitalistic system that means less pressure to drive down prices on a product. The idea is of course to offer the patent holder a limited monopoly in exchange for publishing the idea, but the fact remains the customer loses on this deal UNLESS the invention would not have been published/implemented WITHOUT the patent system. Impossible to know I suppose, but food for thought.

    Every instance of d is a waste of money in terms of all the effort to get the patent, the time of the patent office working on it, and whoever is forced to fight it. Ouch.

    e needs to trigger a close examination of the patent - if the settlement is just to avoid going to court, it must mean that either the company doesn't think they'll make more in a lawsuit even if the patent is valid, the patent holder can't afford a battle either, or the defendant is not going to pay out of pocket just to invalidate a bad patent when its cheaper to settle. In the latter case, it is a waste of economic resources.

    f is a possible way to get a handle on how often the first possibility for e happens - if they have successfully licensed it (not cross-licensed as part of a stand-down agreement between big players but actually had someone pay for the right to use it) and still took the lesser fees it might be at least a suggestion there could be validity in the patent.

    g is simply a waste. Bright, talented minds try to work out a way around some idea, when they might be working on new features, products or inventions. Sometimes you get new ideas working around patents, but a lot of it is just monumental silliness. The consideration is avoiding the patent, not the best engineering solution.

    If somehow all of these costs could be totaled up, I would be very interested to see what the end number would be.

    • Re: (Score:3, Insightful)

      c) the number of decisions to NOT make a competing product due to patent issues

      This is damage that's basically impossible to measure. Some giant companies probably track the direct decisions, but even then there's no way to measure "bringing products to market in general is dangerous because of unknown patent risks" effects.

      • Re: (Score:3, Insightful)

        by starseeker ( 141897 )

        Agreed. That doesn't mean it's not a cost. I know several of these are difficult/impossible to measure, but the effects are none the less real.

    • c is hard to document

      Tell me about it! My boss is all like, "Why did you write 100 lines of incomprehensible C code without a single comment explaining what's going on?" I'm glad I finally got some backup on this issue.

    • by Kirth ( 183 )

      You're absolutely right. But this already has been done.

      http://www.researchoninnovation.org/dopatentswork/ [researchoninnovation.org]

  • Dead On (Score:4, Insightful)

    by JBG667 ( 690404 ) on Tuesday July 15, 2008 @11:23PM (#24207823)
    Hallelujah! The main purpose of patent and IP law was to promote innovation by ensuring that those who innovate are able to reap sufficient financial benefits commensurate with their invested work. It was to do this IN THE INTEREST OF THE SOCIETY. However, over time, greedy corporations and overzealous lawyer twisted and bent this law to protect interests of individual corporation at the expense of the society at large. This has to be undone.
    • Re:Dead On (Score:5, Interesting)

      by mjs0 ( 790641 ) on Tuesday July 15, 2008 @11:54PM (#24208037)

      Well said!

      At the end of the day the real test of whether something should be patentable or not should be related to the reason patents were instituted in the first place...to incent investment in R&D by rewarding that investment in innovation. The reward, in the form of artificial protection from competition for a limited time, is enough to ensure the investor(s) profit from the investment. Obvious or not, if a company or individual has invested significant time/money in a program aimed at solving a problem and come up with a new and unique (even if obvious by hindsight) solution they should be rewarded not for the idea, but for the investment, thus incenting investment in innovation.

      The fundamental problem with the patent system today is that it has been warped over the years into something it was not intended to be. Remember, the patent system is not something that has to exist; it is something that we as a society agree to have in order to incent individuals and companies to perform activities that are of benefit to society. Patenting of business processes, software patents and incidental patents (my own personal winner for least deserving) are all the result of this move away from the original intention. Combine this shift with the allegations of overworked and wrongly incented employees and the patent system certainly looks broken

      There appear to be two basic uses for the patent system that unfortunately are sometimes at odds with each other.

      1. Reward investment in deliberate innovation...The benefit to society is clear...by granting a temporary monopoly on an innovation, individuals and companies are incented to invest in areas that would otherwise not have a decent return on investment due to the ease of duplicating any innovation.
      2. Retroactively profit from incidental innovation...The benefit to individual companies is clear in the form of profits...however the benefit to the general economy and society is less clear but possibly present in the form of eliminating duplication of effort. A company or individual can retroactively identify innovations (that were not the primary goal of the investment) and patent these in order to license the technology to others. The societal benefit of this activity is significantly lower than (1) and certainly does not require or deserve the massive incentive that a patent delivers in the form of a monopoly on that innovation.

      [Aside: When I worked for a large s/w company we were encouraged to regularly trawl through our developed code for potentially patentable algorithms, this is clearly a case of (2) not (1)]

      Surely the only useful purpose for a patent system is to incent companies to make investments that would otherwise not have been made. If a company got a clear benefit from an investment and would continue to benefit whether granted a patent or not then there is no point in society (i.e. the rest of us) granting them a patent! What they have is a trade secret that should be protected by other laws (copyright?); it should not be a patentable innovation. Other companies should have the right to make a similar investment to develop a similar solution (or license the technology/solution from the original company if that is agreeable and makes more economic sense)

      Today, if a company has a trade secret that they feel they could make money off they typically have to patent the trade secret (even if only defensively) and then license it. This behaviour (licensing developed solutions) should be incented but not using the same system as that which incents investment in innovation.

      So how about taking this approach...

      • Patents should be returned to their original goal...a way to incent innovation by protecting those innovations that result from deliberate investments in R&D.
      • Encourage a parallel system that allows companies to profit from incidental innovations if they have value. A way of facilitating the offering of such incidental innovations as commodities
    • "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries" - U.S. Constitution, Article I, Section 8

      If they no longer serve this purpose is it time to abolish copyrights and patents [abolishcopyright.com]?

  • by pembo13 ( 770295 ) on Tuesday July 15, 2008 @11:30PM (#24207887) Homepage
    What is the value that it currently delivers?
  • MSM Noticing That Patent Gridlock Stunts Innovation

    trichard writes tips a column on the editorial page at ... the Wall Street Journal

    So the TLA MSM now means WSJ? OMG! WTF!

    • by inKubus ( 199753 )

      Actually, it's interesting you should mention that, since the same company that owns Fox News owns it now:

      From the WSJ wikipedia entry [wikipedia.org]:

      As of December 13, 2007, the Wall Street Journal is owned by Rupert Murdoch's News Corp.

      On May 2, 2007, News Corp. made an unsolicited takeover bid for Dow Jones, offering US$60 a share for stock that had been selling for US$33 a share. The Bancroft family, which controls more than 60% of the voting power, at first rejected the offer, but later reconsidered its position.

      Thre

      • Not that I would put it past Rupert to do such a thing but the economic problems the US is facing (including the minor bank run at Indymac) are not entirely his fault.
  • by DrHanser ( 845654 ) on Tuesday July 15, 2008 @11:32PM (#24207911) Homepage

    From here [onthepharm.net]:

    I mentioned the Hatch-Waxman Act (PDF), which was passed in 1984. The Act was supposed to speed up the adoption of generic drugs when the patents behind name-brand drugs ran out. This happened at first, but as pharmacy has expanded, the Act has created a bottleneck at the FDA. It is speculated that the bottleneck is Big Pharma itself: creative lobbying seems to have resulted in a reduction in the budget for the Office of Generic Drugs -- which in turn has limited its capacity to approve generic drugs to some 400 per year.

    Unfortunately, I can't seem to find which drugs' patents will expire without a generic equivalent to take its place -- I suspect that none of them are massively profitable by themselves -- but all told, the market value of these 800 drugs is a whopping $78 billion per year for their manufacturers. For comparison, the entire generic drug industry is only worth just over $22 billion -- even though it accounts for over half the prescriptions dispensed each year in the United States. Broken down, that's almost $100 million per drug...

    Staggering numbers.

  • by starseeker ( 141897 ) on Tuesday July 15, 2008 @11:33PM (#24207917) Homepage

    Considering the massive economic resources that have been invested by big players filing software patents, is there any politically workable way to change the law and make software unpatentable again? It would be (in the eyes of patent holders at least) the same as throwing all the money invested straight out the window. Although this may be (practically speaking) what happens anyway as far as the economy (us) are concerned via paying lawyers to fight, those benefiting from the fighting and having committed the $$ may be a hard sell. Not to mention the difficulties involved in crushing those annoying upstart competitors without having patents to wave around.

    The ray of hope for real change may be (oddly enough) the patent trolls and their parasitic activities hurting EVERYONE else, but will they be enough to turn the tide?

    • is there any politically workable way to change the law and make software unpatentable again? It would be (in the eyes of patent holders at least) the same as throwing all the money invested straight out the window.

      And they should have known better instead of being enthusiastically part of the problem. What is the best thing about hitting yourself on the head with a hammer again?

    • is there any politically workable way to change the law and make software unpatentable again?

      I've heard it suggested that SCOTUS might overturn software patents on the whole, but for that to happen, someone would have to bring a case up that high and challenge the patentability of software.

    • Considering the massive economic resources that have been invested by big players filing software patents

      Gambling should not be rewarded, and much less so by giving the jackpot to every player.

      As can be seen e.g. from the article linked here, eminent lawyers, economists and computer scientists left no doubt [slashdot.org] that the purported foundations for making software patentable were shaky at best.

    • Practically it is very difficult to prevent software patents, because as soon as they are outlawed, the applicants just rephrase their patents in terms of a device. A device that happens to contain a chip and some software, but a device nonetheless. (And if devices are forbidden from containing software, there'll just be a quick boom in the "compile to hardware" business.) The device workaround is generally what's happened in the EU, according to a few friends in the patent area. Essentially, it means t
  • by SirSlud ( 67381 ) on Wednesday July 16, 2008 @12:37AM (#24208305) Homepage

    The patent system is a privilege to encourage publication of invention while granting a limited-term monopoly on licensing that invention.

    Like the copyright system, it has been twisted by special interested groups into some kind of right whereby creators of art and technology and knowledge deserve some kind of lifetime monopoly. Throw in companies, works for hires, NDAs, etc and suddenly you have the very thing both systems were founded on to combat: a semi-feudal permenant monopoly on inventions and works of art.

    I like to think of it this way - most people think it'd be unfair of somebody to be able to create their own Mickey Mouse merchandise. But certainly, Disney has reaped enough benefit from the original artistic creation, and certainly, if the character is so ingrained into our cultural fabric, it seems asinine to say only one company should be legally granted the permission to re-tell/re-interpret the stories? If the laws many companies sought came into effect, they would have been sued out of existence by their own original creations. That's what limited term means. After awhile, its not your story to tell. With respect to patents, it's the same thing - longer term, wider and more vague claims.

    Everyone agrees that inventors/authors should be able to protect their work. It's just that when the terms of that protection get too strong, shrewd capitalists just can't resist, and always work on tipping the legal tables in their favor.

    And screw the founding fathers - the acknowledgment that patents and copyright can encourage intellectual and cultural progress pre-date the US by centuries. What has been lost is the concept of balance and compromise. It's a political minefield politically within the context of the American Dream. Somewhere along the line, people started confusing right to private property with right to earn.

  • Comment removed based on user account deletion
    • ...will begin to tackle the problem of IP law stifling innovations in media?

      Somehow I'm not holding my breath.

      QUOTED FOR TRUTH

  • The patent system was invented by the same people who used to pull our underwear over our heads and take our lunch money.
  • Western society is stagnating, badly. I look at leaders like Gordon Brown and George Bush and I see Leonid Brezhnev. Old men, polishing their medals and maintaining an establishment that is dying from the inside out.

    Per capita energy consumption has already peaked and gains in efficiency are increasingly marginal (as dictated by the laws of physics). The kind of expansion our elites have made their fortune with is no longer possible, and so they have fallen back on pure rent seeking. They have had to commod

  • Imagine if you couldn't write stories containing lesbians, because that idea was currently copyrighted. Or maybe you could use lesbians unless they behaved in one of many specific ways. For the full list you would have to check the copyright office where all copyrighted ideas are stored, written in a format that is supposed to make the ideas so hard to understand as possible. Also, if you actually check the copyright office you would be more liable to get punished if you wrote something infringing. That is

    • by jefu ( 53450 )

      Imagine if you couldn't write stories containing lesbians, because that idea was currently copyrighted. Or maybe you could use lesbians unless they behaved in one of many specific ways.

      You don't have to imagine much, there is a company [plotpatents.com] that seems to be trying to do exactly this by patenting plots (or storylines).

  • I think I understand the thinking behind having patents - as a way to prevent others from profiting from a patent owner's hard work on researching and implementing a solution to some problem merely by seeing their solution and copying it.

    HOWEVER - it seems that many new inventions come about due to the combination of current scientific knowledge, current technology and current problems. This often leads to the same (or very similar) inventions being independantly made by several people across the world with

    • Not trying to distract you from your main point about simultaneous inventions, but there's a bit of apparent confusion in your opening sentence. Perhaps you understand this point and were merely simplifying, in which case I apologize, but as written this propagates an unfortunate misunderstanding:

      I think I understand the thinking behind having patents - as a way to prevent others from profiting from a patent owner's hard work on researching and implementing a solution to some problem merely by seeing their

  • I found this article (actually it is a book review) on Ars Technica to be much better. It is longer, explains some of the problems in detail, and includes an interview with the authors of the book which prompted the Wall Street Jurnal to run the story.

    - Jesper

IF I HAD A MINE SHAFT, I don't think I would just abandon it. There's got to be a better way. -- Jack Handley, The New Mexican, 1988.

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