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Patents

The Good Old Patent Law - Revisited 178

Posted by michael from the patent-leather dept.
trifakir writes "Scientific American talks about the imperfections of the current patent law, subject to the book of two authors from the Harvard Business School. It seems that even business people start seeing the insanity of the current patent system. This time it seems that they are not only criticizing, but suggesting some procedural amendments (e.g. patent conflicts resolved by a judge and not by a jury). Do you think that any of these has chances being heard by the big wigs?"
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The Good Old Patent Law - Revisited More

The Good Old Patent Law - Revisited

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  • No changes for the better while... (Score:4, Insightful)

    by rokzy ( 687636 ) on Sunday July 11, 2004 @07:07AM (#9665673)
    ...the patent office makes more money allowing retarded patents to get through than by being sensible.

    • Re:No changes for the better while... (Score:5, Insightful)

      by MemoryDragon ( 544441 ) on Sunday July 11, 2004 @07:13AM (#9665682)
      Yes, one solution would be to place heavy costs onto the uspto for every patent which is shot out in court. Another better system would be to revisit patents once in a while in an open non commercial discussion (cough internet forums) so that bogus patents can be shot out in time without causing costs left and right. Third a patent should be connected to an actual product which already has been sold seriously. This would push non producing patent grabbers who only produce court cases, out of the system. Fourth, patent times should be altered to different running times in different field. 20 years makes sense in the medical field, in software nothing makes sense more than five years. Fifth, why patents in software at all? The field has prospered much more than other technical fields, without having them. And now patents are all over the place, the whole field is in a commercial crisis.

      • Re:No changes for the better while... (Score:5, Insightful)

        by kristofme ( 791986 ) on Sunday July 11, 2004 @07:26AM (#9665707)
        I fully agree with most points, but definitely not the third one: "a patent should be connected to an actual product which already has been sold seriously"..
        Patents are supposed to protect and stimulate inventions for those that do the research, requiring an actual product that is being sold makes this very hard for individual researchers, and very easy for the big companies.

        • Re:No changes for the better while... (Score:5, Interesting)

          by slimyrubber ( 791109 ) on Sunday July 11, 2004 @07:56AM (#9665762)
          Patents are supposed to protect and stimulate inventions for those that do the research, requiring an actual product that is being sold makes this very hard for individual researchers, and very easy for the big companies.
          True, the patent system does not work for small enterprises and individuals. It wasn't even designed for inventors in the first place, but for the industry. For example, Most software are built on existing code, and the only way programmers can avoid patent infringements is by paying for a patent search, which is an expensive and lengthy process.
          • It wasn't even designed for inventors in the first place, but for the industry.

            To quote the US Constitution:

            Clause 8: 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;

            Notice that it says Authors and Inventors, not Firms, Publishers, Manufacturers, etc. IANAL, but it looks to me like the original intent of the patent system was to protect individuals.
          • Most software are built on existing code, and the only way programmers can avoid patent infringements is by paying for a patent search, which is an expensive and lengthy process.

            Hello? Ever heard of Open Source or Free Software? Both offer vast ammounts of patent-free code for budding programmers to build upon..

            Oh, you had meant COMMERCIAL, closed source software developers? If you're planning on making money with your product, you always have to spend some money first.. that's how capitalism works.
            • Open source and free software protects you from copyright infringment if you follow the licenses.

              They wont protect you from patent infringement. Not even a patent search will really protect you as a patent could be granted for something you wrote later. If you cant afford to go to court to get it overturned the triviality or prior art is useless.
              • There are a number of open/free projects that make it a priority to not step on anyone's patents (for example, gdlib dropping gif support a few versions ago) and other restrictions (such as most crypto software that's developed offshore). My point was that you should look to people that have already tried to do something similar to what you have done, and work from there.

                And if a patent is later granted for something you wrote, what you wrote is prior art, and the patent is invalidated.
                • "And if a patent is later granted for something you wrote, what you wrote is prior art, and the patent is invalidated."

                  What you wrote _may_ be prior art. If you can prove you wrote it before. In an acceptable manner (published in a journal, notarized, etc).

                  And the patent _might_ be invalidated. After you pay for a piece of extremely expensive litigation.
                  Which you might not be able to afford, in which case the patent isnt invalidated at all, and you have to settle or risk getting sued for distributing some
                  • It's obvious that the current intellectual properly system in North America is fundamentally flawed. It was a good idea, at one point in time, when the length of the term was it's original 19 (or was it 17?) years.

                    I hear there's some small island nations without very many laws that welcome all kinds of questionable software developers.. =)
            • Both offer vast ammounts of patent-free code

              Prove it. I don't want anecdotal evidence, I want cold, hard facts - a list of projects that could be used to develop derivative software that you can guarantee are free of any patents. Given the nature of patents, that means that *no-one* holds a relevant patent - not the authors, not IBM, not Joe Blow sat at home in Texas, no-one.

              Just because open-source projects don't generally take out patents on their work, doesn't mean no-one else has a patent covering it

      • Re:No changes for the better while... (Score:4, Insightful)

        by RevDedd ( 795432 ) on Sunday July 11, 2004 @07:33AM (#9665720) Homepage
        Third a patent should be connected to an actual product which already has been sold seriously.
        Is this to say that open-source (or otherwise free products) should not be able to get a patent? Isn't this a problem for people like the GPLers?
        • Of course.. with product I meant something physical, which has commercial or research value. Much like most patents in other engineering fields basically just protect more or less an actual implementation not a method.
        • Third a patent should be connected to an actual product which already has been sold seriously.

          Talk about enabling submarine patents. Right now outside te US you have to file before using a patent commercially; in the US you have 1 year after commercial use to file. The reason for this is to discourage submarine patents - you start making something, in two years people copy you, then you file get approval and sue.
      • a patent can't be tied to a product that has been released into the market place

        thats the reason for patent pending

      • Fourth, patent times should be altered to different running times in different field. 20 years makes sense in the medical field, in software nothing makes sense more than five years.

        The same change would also make sense with copyrights. eg. It seems fairly clear to me that a useful period for software copyright would be around 10 years max. (Of course this wouldn't mean that MS Word would be public domain, just the 10 year old version, ie. MS Word 6).

        Rich.

      • Blockquoth the poster:

        Yes, one solution would be to place heavy costs onto the uspto for every patent which is shot out in court.

        Shouldn't the cost fall upon the company that sought the illegitimate patent? And I mean real cash damages, not just lost potential revenue.

      • Fifth, why patents in software at all? The field has prospered much more than other technical fields, without having them.

        That is the key question we should ask. The only problem is, politicians and industrialists already have the answer: "Most major software companies come from the US, where they have software patents. So there must be something to them there patent thingies". And recently, companies like Philips, Siemens and Nokia spoke out in favor of patents, claiming that all of the 18 billion the

      • Fourth, patent times should be altered to different running times in different field.

        Patent length should be tied to ROI. Any patent filing should be accompanied with a statement of the "development cost". Once that cost has been recovered, the patent expires.

        Simple, easy and fair.

    • Well some of those "insane" patents didn't seem that far off. I kinda liked the inflatable carpet, and the bird diaper. I really do like the inflatable carpet. Because a lot of time in my house I just want to lay down and the couch is a little to short for me. Or just watch TV on the floor. Plus it would be nice with kids.

  • for those who won`t RTFA (Score:5, Interesting)

    by gordo3000 ( 785698 ) on Sunday July 11, 2004 @07:16AM (#9665688)
    This is just an overview of some ideas that have been pinging around slashdot and several other communities for a while. Namely, that because of some small changes that seemed to be for the better, patents are now under the jurisdiction of a court that loves them and the patent office is encouraged to rush patents through without thinking because they get their funding that way rather than from taxpayers.

    The failings of this seem obvious after our discussions here, and I think that because the patent office is not supposed to be some pro business advocate but rather, a group of people set up to facilitate innovation into uncharted technologies(hence not obvious and no prior art) now just stifles innovation as obvious extensions of old ideas are inhibbiting their usage in useful R&D.

    I think the review shows authors that really stand for a sane position, one that doesn`t completely remove the patent system but rather turns it back into what it was originally intended to be(not giving patents to companies for marketing the PB&J sandwich without crust, yes, its a patent according to the article). When this book comes out, I will be on the lookout because it seems these people have some ideas that need to get some attention and they have the clout to go somewhere with these ideas. Our representatives are only as sleavy as we permit them to be so we have to read up so we have some real knowledge and show our support for a complete overhall of the patent system and a review of many patents granted in the last 10 years(especially technology patents). Kudos to these authors for bringing this debate into what might become the main stream.

    • Re:for those who won`t RTFA (Score:4, Interesting)

      by Peyna ( 14792 ) on Sunday July 11, 2004 @07:58AM (#9665768) Homepage
      A good chunk of the patent office's revenue is sent to other places in the government. Very little of it stays with them. If they changed that, and made it so they got to keep most of that money, they could be a lot more efficient.

      • A good chunk of the patent office's revenue is sent to other places in the government. Very little of it stays with them. If they changed that, and made it so they got to keep most of that money, they could be a lot more efficient.

        It's true that the Patent Office takes in more revenue than it spends on its operations but allowing it to retain all its revenue would only assure that it would grant more patents, not smarter patents.

        What the patent office needs are examiners who aren't cloistered on remote

        • You do realize that much of what you proposed is in the works for taking place? Things like that take time to implement, but it is happening slowly. To make changes happen at all, and to make them happen faster though; you need more money.
        • The PO people are experts in patents. Not in electronics, or fiber optics, or software. They CAN'T do a decent job. That would require that they be both an expert in law, patent law, and whatever specialty the patent they're examining is about. So they don't try. They just look for previously granted patents that appear (to them) to be similar. Even so, some of the patents that they grant indicate that either they don't even bother to do that well, or that they have a twisted and bizarre sense of humo

  • This article is overly optimistic (Score:5, Insightful)

    by Vlad_the_Inhaler ( 32958 ) on Sunday July 11, 2004 @07:21AM (#9665694)
    It seems that even business people start seeing the insanity of the current patent system.

    As long as 'business people' in the form of very large companies are trying to get something similar to US patent law into European Union law, I won't believe in a change of opinion at the top. Everyone knows that the US system is broken, but the odds are still on it being adopted in the EU.
    • the odds are still on it being adopted in the EU.

      Actually things seem to be looking pretty good, at least in the realm of software / business method patents. As far as I can tell the Parliment is still solidly opposed, and support for software / business patents appears to be crumbling in the Council.

      -
      • I have heard that as well, but I heard similar things before the critical vote a few weeks ago and we know how that panned out.
        • Is it possible you're confusing Parliment reports and Council reports? The proposed directive bounces back and forth between them.

          We solidly won the Parliment, but prior to this round I hadn't heard any improvement in the Council.

          Originally the Council wrote a bad directive (mandating SW-patents). Then the Parliment rewrote/reversed it into a good directive rejecting SW-patents. The most recent Council vote was preliminary and nonbinding - they voted on a re-rewrite(evil) draft which must then be translat
          • The Germans allegedly voted against the position of their own goverment (although not that of the Minister of Justice).

            The Poles apparently did the same thing. You have also nominated the Dutch.

            Why? Are they all that stupid?

            Another sub-plot is that there was a general move to the right in the recent elections and the right-wing parties are generally for SW patents. In Germany, the CDU/CSU (right) are for, the SPD (left) are split and the three smaller parties are all dead against. Then again, after t

  • subject (Score:3, Insightful)

    by dekeji ( 784080 ) on Sunday July 11, 2004 @07:21AM (#9665695)
    The imperfections may be subject of those two books, but I really doubt that they are subject to those two books.

  • Einstein said it best (Score:4, Insightful)

    by slimyrubber ( 791109 ) on Sunday July 11, 2004 @07:26AM (#9665704)
    "The significant problems we face cannot be solved by the same level of thinking that created them."

  • Judge vs jury (Score:2, Interesting)

    by Sowelu ( 713889 )
    With a jury, at least you know they're generally ignorant and fairly easily swayed, but you can hope they'll all do alright. While a judge would supposedly be an expert on the subject, far too often they might not actually understand the technology at issue... and that's not even to mention what a little judicial activism -one direction or the other- could do.

  • trouble-shooting (Score:5, Interesting)

    by cagle_.25 ( 715952 ) on Sunday July 11, 2004 @07:29AM (#9665713) Journal
    One of Lerner-and-Jaffe's planks is the idea of allowing "obvious" patents to be challenged (like Amazon's one-click patent). The problem with this is the obviousness of hindsight. What happens to an idea that is merely one grade of brilliance beyond the "obvious"? You have twenty guys coming out of the woodworks saying "I thought of that." It seems to me that the obvious criterion will lead to just as much legal wrangling as the fights over who took which code from whom.

    That said, I support what they're doing. I don't think that ideas can actually be owned. (*** ducks ***)
    • I think the biggest thing the could do is eliminate obvious solutions to obvious problems.

      The one-click patent is such a good example because it's the first solution you would come up with if asked "How do I make it easy for customers to buy product?" and that is an obvious question for marketing guys to ask ...

      You should only be able to patent something that

      1. Is a non-obvious solution to a common or known problem.
      2. Is a solution to an non-obvious problem.

      This would elminate the bulk of the problems w

    • Re:trouble-shooting (Score:3, Insightful)

      by Landaras ( 159892 )
      That said, I support what they're doing. I don't think that ideas can actually be owned. (*** ducks ***)

      Why are you acting like you're saying something heretical?

      Ideas themselves cannot be owned.

      What can be owned is a temporary, government-granted monopoly on certain uses of that idea. These are called patents and copyrights.

      - Neil Wehneman
    • But patents "obvious to those skilled in the art" are already ruled invalid when challenged in court. Provided the challenger has deep enough pockets to mount a successful challenge.

      These are patents at are already legally invalid. But until a court has acknowledged this, you aren't any better off. So HOW is he proposing to allow the obvious patents to be challenged?

  • patent #782334 (Score:4, Funny)

    by circletimessquare ( 444983 ) <circletimessquare&gmail,com> on Sunday July 11, 2004 @07:39AM (#9665729) Homepage Journal
    i own patent #782334:

    "concerning procedural amendments whereby patent conflicts are resolved by a judge and not by a jury "

    you guys try it without the proper licensing from me, and i'll sue you for infringement and prior art and i'll have you tied up court for decades

  • I can break that patent in.... (Score:5, Interesting)

    by NoneExpected ( 795890 ) on Sunday July 11, 2004 @07:40AM (#9665732)
    Recently I attended a corporate IP (intellectual property) seminar. I work for a large, Fortune500 company. After 8 hours of 5 lawyers droning I came away with this. The starting cost of protecting a patent worldwide is $450,000 USD, to effectively attack an already awarded patent starts at $450,000 USD. Many companies looking to bust a patent are searching the old Soviet Union's past research journal archives for prior art. They are not computerized and evidently they have proven to be a rich source. They also discussed how some companies patent similar ideas in order to cause enough doubt in the plantiff's lawyers on a clear court victory, so the plantiffs lawyers will look for a cheap license arrangement.

  • Patents won't change until "they're" effected (Score:3, Insightful)

    by DeanFox ( 729620 ) * <spam@myname.gmail@com> on Sunday July 11, 2004 @07:48AM (#9665749)

    Nothing changes unless those with the power to change it are effected. It works this way at work, in business, government...

  • Nothing changes for big companies (Score:5, Insightful)

    by freeduke ( 786783 ) on Sunday July 11, 2004 @07:53AM (#9665757) Journal
    Big companies, such as IBM, have so many patents that everytime someone comes with an innovative patented idea, they just sue him telling that his inovative software breaks 100 IBM patents, and so IBM proposes him to sign a cross-patent licence, that allows IBM to use his idea and IBM won't sue him anymore.

    So due to the patenting policy of all the big companies, no new idea is rewarding for his inventor in the field of software patents. Because a software implies so many ideas, it is subject ot a lot of patents, that is the main difference with the other industry fields.

    You should have a look at Richard Stallman's talk about patents, it is far more informative than this article, and also the presented books.

    Patents are killing inovation, and let big companies use every new idea thanks to cross-patent licences...

    • "Patents are killing inovation"

      In what field?
      • In the software industry, because of the behavior of the giants, small companies, funded on a bunch of patents, can not develop their derivated software: if they did so, these small comanies would face the offers of cross licences offers from giants and would loose any benefit from their patent. Because everytime you create a software, you are sure to use a patent issued by a big company, which often owns more than 10000 patents each.

        That is why it is far more lucrative to issue a patent, and then not to i

        • So where in your scenario does the actual innovation stop?

          Big companies innovate. Little guys sometimes profit with submarine patents. Users pay a slightly higher price but still do get the innovations in the end.

          Yes, these submarine patents are an imperfection in the system, but an occasional failure is not proof that the whole system is rotten.
          • "Big companies innovate. Little guys sometimes profit with submarine patents. Users pay a slightly higher price but still do get the innovations in the end."

            Nonsense - even large companies have admitted that their own innovation is often slowed and even blocked by software patents (and let's stick to the subject of software patents - not all patents - brought up in freeduke's post). Here for example is what Alcatel said on the matter:

            "Like other companies operating in the telecommunications industry,

        • these small comanies would face the offers of cross licences offers from giants and would loose any benefit from their patent

          Tell me - in what way does having to cross-license their patent prevent them from profiting from it? True, they now can't charge that particular company licencing fees, but they can still sell their product.
          • "Tell me - in what way does having to cross-license their patent prevent them from profiting from it? "

            It's very simple really - You get a patent to give you a temporary monopoly on the profitable use of your invention - no-one else can use yor idea in their products.

            Then you are forced to cross-license with big companies X,Y and Z who can now use your idea in _their_ products and so you no longer have the monopoly you thought the patent was supposed to grant you. The advantage and marginal scope for prof

  • Eliminate Juries? (Score:2, Informative)

    by John Hasler ( 414242 )
    > This time it seems that they are not only
    > criticizing, but suggesting some procedural
    > amendments (e.g. patent conflicts resolved by
    > a judge and not by a jury).

    They are proposing a constitutional amendment?

  • Peer Review Should be required (Score:3, Interesting)

    by mrwiggly ( 34597 ) on Sunday July 11, 2004 @08:49AM (#9665920)
    When someone files for a patent, they are attempting to lock down a "non-obvious" solution to a problem.

    What if patent examiners posed that problem to other experts in the field. If they come up with a similar solution, patent denied.
    • What if patent examiners posed that problem to other experts in the field. If they come up with a similar solution, patent denied.

      Well, you would certainly have to change a lot of patent law for that one. The current law reads "not obvious to one with ORDINARY SKILL in the art." Fees would have to be a lot higher, too, to hire all these experts.

      However I do agree with you that the bar is too low. I think a patent should require a significant advance in technology to be valid. Changing the law to encompas
      • Why not charge a percentage of licensing revenue? This puts the burden of maintaining the system on those who benefit most from it, and encourages more patents to be licensed for free.
    • Read, for example The European Patent Convention [european-p...office.org] on the "Inventive Step" which is required for an invention to be patentable:

      An invention shall be considered as involving an inventive step if, having regard to the state of the art, it is not obvious to a person skilled in the art.

      In the USA, the Patent Act (sec 103a) [cornell.edu] reads:
      A patent may not be obtained [...] if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been
      • The problem is partly that 'the art' is by now thousands or tens of thousands of fields. The days when one person could have 'ordinary skill' within a field like biology, chemistry or computers are long gone. They might have 'ordinary skill' in a field like rodents digestive systems or paralellizing fluid dynamic calculations, and be one of a few thousand in the world to whom a specific problem has an obvious solution.

        The patent offices will never be able to hire people from each small subfield, and thus a
  • The not-a-perpetual-motion-machine award goes to:
    Hyper-light-speed antenna! [delphion.com]

    The invisible-pink-rabbit award goes to:
    Santa Clause detector! [delphion.com]

    The use-the-force-Luke award goes to:
    Pyramidal machine! [delphion.com]

    The suicide award goes to:
    Greenhouse helmet! [delphion.com]

    The sick fuck award goes to:
    Bird trap and cat feeder! [delphion.com]

    -
  • From what I gather, their suggestion is to simply grant all patents, but let judges sort everything out. That doesn't seem much different from what we have now. Only the rich would be able to participate in the process.

    My idea: Initially only 10 percent of patents should be granted. I.e., those that obviously should be granted. If a patent examiner grants more than 10 percent, he (or she) should be fired.

    The remaining 90 percent should be forced to file a lawsuit to prove the patents grantability. (Y
    • Now that'd fix our patent system!

      Not really. By making patents too hard to get companies would start using trade secrets much more. To give you an idea how bad that would be, consider the fact that the concept of the patent was devised in order to cure the problems and abuses with trade secrets.

      • Where have you been? Nowadays patents have NOTHING to do with avoiding trade secrets. Can you imagine Microsoft trying to hide its double click patent? Amazon trying to hide one click purchases? Or MercExchange trying to hide its patent to have online auctions?!

        Patents nowadays are simply monopolizing utterly obvious ideas.
        • Can you imagine Microsoft trying to hide its double click patent?

          You have been reading too much slashdot. These are pathological examples out of a system that produces hundreds of thousands of patents a year. If you want to tinker with the rules to eliminate business process patents and UI tweaks, go ahead. Making wholesale changes and you risk irreperable damage to the progress of technology. There is a reason that the industrial revolution immediately followed the institutionalization of the patent.

          Pa
          • If Anti-cancer statins, GCMR heads for high capacity disk drives, and the Polymerase Chain Reaction are all as valid as you say, then they will be upheld as such. I see no problem with those in my system.

            The way I see it, if we give someone a monopoly on an idea, the standard should be VERY high.

  • If enough well known personalities and big corporations get involved and start saying the same things, it's very likely you will start to see reform.

    GJC
  • Until we see the Patent Office being sued by someone/company that suffered financially or otherwise because of a bogus patent that the PTO granted, we won't see any significant changes to the way things work now. After a lawsuit or two they might finally get the hint to stop granting such bogus patents and maybe even (gasp!) start reviewing past ones once they realize those might become a liability.

    And for those that say such lawsuits would be a burden on the taxpayers, well, I'd say these bogus patent inf
    • Taxpayers won't have a whole lot to say. The PTO is one of the only government offices that brings in more money than it spends. Yes, they're operating at a surplus. The excess goes into the general accounting fund.
  • The fastest way to change patent law into something sensible is to trigger patent wars.

    Adobe is getting hit with a submarine patent for something in it's PDF reader.

    I suggest that people who are against software patents help point submarine patent holders towards a big-business' that can be sued.

    When big business' can't DO big-business you'll see sofware patents removed really quickly because:

    1. Big-Business can't do business
    2. Big-business -> "influences" government.
    3. Government changes law.

    The ad
    • Dunno, I kinda like the idea, kick them where it really hurts, yessiree, the balls...

      But serious, as I have a small consultant buro in Europe, I am afraid that the big boys there will push through that flawed idiot patent system.
      The sooner a large scale patent war takes place the merrier for people like myself.

  • Present problems = changes in the 1980's (Score:4, Insightful)

    by garyebickford ( 222422 ) <gar37bic&gmail,com> on Sunday July 11, 2004 @11:06AM (#9666765)
    Much (not all) of the present problem with US Patents derives from changes made in the 1980's.

    At that time, a typical patent application might sit in multiple bureaucratic queues for years, sometimes decades, as each patent had to be rigorously analyzed and proved to be substantive and unique, new tech, etc. Basically all the work was at the front end of the process. This collided with the rapidly accelerating pace of new tech and new product lifetimes - many products were introduced, sold and finally end-of-life'd before the patent was awarded. Getting a patent was expensive, slow, and difficult.

    The Patent Office was basically told by business, Congress and the Reagan administration to Do Something, without spending more money. USPTO quit being so rigorous, and just began to award anything that seemed reasonable, i.e., everything except perpetual motion. The analysis was pushed to the backend, putting the onus of proving the patent upon the patent holder and the courts. This removed a multi-year logjam at the USPTO, without requiring the hiring of hundreds or thousands of expensive new patent examiners with expertise in all the new tech fields. The business community was much happier with this approach, perhaps shortsightedly.

    So, since 1980's a patent is more like a timestamp than a proof of innovation. It's a piece of paper that gives you the right to defend your invention. This is arguably a reasonable way to go, in principle. It can mean that the system only invests the cost of rigorous defense on patents that have commensurate value. Individuals and small players can get their timestamp at minimal cost, and then begin trying to make money with it. As we know, there are problems with the new system, and perhaps the proposed changes will fix them.

    That period is also when they decided, erroneously IMHO, to accept patents for software. Previously software was considered to be algorithms, which are math, which is "discovered" natural law, not invention. The first awarded patent involving SW as such, IIRC, was a Honeywell patent for a HVAC (or security?) control system that included software in the controller's CPU. Acceptance of SW patents was partly driven by the successful patenting of hardware implementations of algorithms that could also be done in SW. Challenges to the USPTO policy were based on that disconnect. IIRC the original virtual memory patent, was awarded about 1962 for a hardware implementation by a British computer company whose name escapes me.

    Unfortunately, opening SW patents at that late date was destructive, because two generations of software builders had worked under a paradigm that depended on either "trade secret" control, or public sharing. This allowed companies to protect their employees' work for a time, but maximized the velocity of innovation by rewarding innovation with respect and increased employability. Patents broke with a long history and tradition. The effect has been to reward minor tweaks while failing to reward those who arguably contributed the most seminal work. While my own work can by no means be considered major, a lot of my work in systems architecture and image processing would now be patentable.

    Sharing of information greatly increases its utility, a la the "network effect", and the velocity of software innovation is so high that patents are a poor solution. A SW patent with a term of perhaps 2 years from the date of patent, plus the period between application and award of patent, might be useful. Certainly the mere transformation of a process from hardware to software, or from local to networked systems, should not be patentable, any more than building something in plastic rather than metal should be.
    • I agree that software patens are a bad idea, but I would lik to point a few things out.

      It takes longer now to get patents than it did before the late 80s and early 90's, mostly because of the backlog. (About 4 years now if there are no rejections, vs 2 years or less previously.)

      part of the reason patents are examined so poorly are that no one besides the dregs of the tech industry wants to work for the government. There's a whole lot of non-native english speakers working in the PTO as examiners.

      S

  • What is really needed: Tests of Obviousness (Score:4, Insightful)

    by rollingcalf ( 605357 ) on Sunday July 11, 2004 @11:08AM (#9666778)
    We need to move more towards a system that emphasizes testing the obviousness more than searching for prior art. Prior art searches are expensive and can never be even close to exhaustive, and so will always have huge holes.

    How can that be done? The current system makes obviousness impossible to test for, because once the patent is published it looks obvious after the fact.

    So in order to test the obviousness, a short summary of what the invention does, without any details of how it does it, should be published while keeping the rest of the patent hidden. If within some predefined time period (say 90 days) somebody can come up with a detailed description of how to do the same thing, or actually implement something that does it, and that implementation or description is similar to the methods described in the patent application, it should be regarded as obvious and the patent not awarded. That somebody else could create it in such a short time, and is willing to do so knowing they won't get a patent for it, is a strong indicator that the alleged invention is simple enough that it does not need the incentive of a patent in order for it to be created.

    Of course, some will object saying that for some inventions, the problem or goal is in itself nonobvious and innovative, even if the implementation is obvious. Well, I say even those still don't deserve a patent. Those kinds of inventions do not require the incentive of a patent, because the first person to think of it or someone else would almost certainly create it anyway if the implementation is obvious. If someone else encounters the same problem, they will solve it in an obvious way. If no one else encounters the problem, there isn't much harm done in not having the patent granted.
    • So in order to test the obviousness, ... is a strong indicator that the alleged invention is simple enough that it does not need the incentive of a patent in order for it to be created.

      I see this line of reasoning here all the time. However, just because something is simple does not mean that it is obvious. It works the other way around to: an obvious idea is not neceissarily simple. Please stop equating these two concepts.
      • "However, just because something is simple does not mean that it is obvious."

        I know that simple is not the same as obvious. Which is why I deliberately used the word "simple". My point is that if it is simple enough that somebody else is willing and able to implement it in a few weeks without the incentive of a patent and without knowing the details of the patent application, then the proposed invention does not need the incentive of a patent for it to see the light of day, even if it is nonobvious.

  • Patent Reform (Score:2, Interesting)

    by Strych9 ( 126433 )
    I think one would remove a lot of the court sleeper patents if:

    1. Patents were only issued to a demonstratable working device.
    2. Patents were non transferable where the "rights" could not be bought or sold from one company to another.
    3. For each patent category, peer standards commitees, for example such as IEEE, would oversee the initial granting, and re-evaulation.

    The unfortunate part is that it is a balance between protecting the ability of someone to innovate and create with some protection from th
  • It's not a good sign if corporations are the only ones whose opinions matter in this area. What's good for any particular industry may not be good for the general public. This is especially bad with software patents. They're either good for business or they're not; the corporate view seems to be that they're bad now, but could be made good if changed in certain ways.

    Copyright law has the notion of "fair use", which comes from the tension between copyright (a set of laws that let you get sued or prosecu

    • Oops (Score:2)

      by phr2 ( 545169 )
      I hit "submit" rather than "preview" before I finished writing the above comment. So to continue...

      ...The Supreme Court in Eldred stupidly didn't strike down the Mickey Mouse Protection Act (that extended copyright retroactively), but it did admit that new copyright legislation was subject to first amendment scrutiny if it changed the "traditional contours of copyright". Well, patenting software certainly changes the traditional contours! You can infringe without copying, you can infringe by publishing

  • My ideas (Score:2, Insightful)

    by trajano ( 220061 )
    I actually made some comments about intellectual property rights in my blog [trajano.net] actually. In a nutshell I am thinking that it should be removed, because having it removed benefits more people than a select few in the big picture.
  • "Do you think that any of these has chances being heard by the big wigs?"

    Answer this question: Does it make more money for the businesses that line the pocket of our government?

    If the answer is "Yes," then the chance for these ideas being heard by 'the big wigs' is very good indeed.

    If the answer is "No," then welcome to the land of irrelevance, my friend.

    That reminds me. VOTE!

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