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The Economist on Patent Reform 315

ar1550 writes "The Economist recently posted an opinion piece on the state of patent systems, describing not just the mess that is the USPTO but flaws present in Europe and Asia. From the article, "In 1998 America introduced so-called 'business-method' patents, granting for the first time patent monopolies simply for new ways of doing business, many of which were not so new. This was a mistake." The article also describes the difficulty of obtaining legitimate patents. "
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The Economist on Patent Reform

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  • One-sided article (Score:5, Interesting)

    by stratjakt ( 596332 ) on Monday November 15, 2004 @12:53PM (#10821018) Journal
    The article only presents one side of the picture, albeit, the slashbot side.

    But, what about the other side? What was the motivation for allowing business method patents? There must have been some reasoning behind it.

    • by Anonymous Coward
      Because it happened in 1998, I blame Bush.

      He allowed it to pad Halliburton's profits.
    • by Vicegrip ( 82853 ) on Monday November 15, 2004 @12:58PM (#10821070) Journal
      Greed and money. The oldest reasons in the book.
      • by Kenja ( 541830 )
        "Greed and money. The oldest reasons in the book."

        So when a lone inventer/devloper wants to rpotect what they've created from large corporaations their just being greedy?

        • The grandparent post was referring to the reason for business method patents, not patents for real things.
          • by Kenja ( 541830 ) on Monday November 15, 2004 @01:32PM (#10821423)
            "The grandparent post was referring to the reason for business method patents, not patents for real things."

            I know, however the same rules apply. If I spend time and money devloping somthing why shouldn't I have a way to protect what I create? The idea of patents is sound, our current patent system is broken with too many 'duh' patents getting the rubber stamp of approval. It should also be noted that I speak from a position where this realy does effect my day to day life. I write software for ISO certification systems. So I'm writting software for buisness methods. A double whammy. According to a number of people on thee forums I shouldn't be able to make money at what I do, I should just hand my work over to IBM or some other jugernaught so that they can run me into the ground. For some reason I just dont agree with that.

            • by Scott Wood ( 1415 ) <scott@@@buserror...net> on Monday November 15, 2004 @01:45PM (#10821568)

              If I spend time and money devloping somthing why shouldn't I have a way to protect what I create?

              The ability to protect what you create is not a right; it is a privilege granted by the public to the creator for a specific purpose. If the public does not feel that a particular sort of creation is sufficiently valuable as to warrant protection, then you don't get to protect it. Keep in mind that one of the major reasons for patents is to prevent secrecy from being used as an alternative; it's a lot harder to keep business methods secret, and thus the public is not getting as much out of granting such patents.

              So I'm writting software for buisness methods. A double whammy. According to a number of people on thee forums I shouldn't be able to make money at what I do

              You can protect the software itself with copyright. It's the methods themselves that require a patent to "protect".

              • by ignavus ( 213578 ) on Monday November 15, 2004 @06:41PM (#10824624)
                "If I spend time and money devloping somthing why shouldn't I have a way to protect what I create?"

                Because "protect[ing] what I create" costs the community money and time and bother, and creates all sorts of externalities ... so the community feels that this welfare mentality (the world owes me a living) should come at a cost - you get protection IF your "somthing" contributes to the common good by advancing science or the useful arts.

                Many patents fail this public utitlity test. Indeed, the current patent regime fails this test. That is the problem.

                The community doesn't have to shoot itself in the foot just because gun-sellers want to sell bullets and doctors want to get fees for treating gunshot wounds. And it doesn't have to erect a patent regime just because business feels it would make more money that way.

                You stand on the shoulders of the whole history of western civilisation - when you pay the developers of the alphabet, the English language, common law, etc ... then you can complain about others ripping off *your* world-changing ideas. (Oh, your ideas weren't that dramatic, anyway?)

                Or maybe you'll get the clue that civilisation is a co-operative thing ... not a business method for making a quick buck. You share a few ideas, you get back a whole culture. Not a bad deal really.

                The world has already given you a heck of a big start in life - perhaps *you* owe the world a living.
            • Re:One-sided article (Score:3, Interesting)

              by BeBoxer ( 14448 )
              According to a number of people on thee forums I shouldn't be able to make money at what I do, I should just hand my work over to IBM or some other jugernaught so that they can run me into the ground. For some reason I just dont agree with that.

              Do you really write software and not copyright it? That is the appropriate protection for software. You will find very few people around here who actually advocate the elimination of copyrights. After all, it's copyright protection which gives the GPL teeth.

              The qu
            • The only protection you should be entitled to is a competitive market place. If your idea is easily reproducible -- read obvious -- by your competitors it should fail the very first litmus test for a patent in my opinion. The Economist succinctly points out this is no longer the case; that business process patents were a mistake from the very beginning.

              Keep in mind that you already have the protection afforded by copyright and trade secrets.
        • So when a lone inventer/devloper wants to rpotect what they've created from large corporaations their just being greedy?

          Given the "quality" of many of those patents, especially business method patents, YES!

          There are a few patents out there that are genuinely innovative and non-obvious. Unfortunatly, they are drowned in the sea of money grabs for the blatantly obvious.

        • by AstroDrabb ( 534369 ) on Monday November 15, 2004 @02:35PM (#10822082)
          A developer/inventor actually creates something. A business method patent is _not_ creating. I am all for a short limited patent on an actual invention/creation. Allowing someone to sit somewhere and think up the "method" of clicking a button is _not_ an invention/creation.

          Patents are the fuel for capitalism and are a good thing when used as they were originally created. Giving an inventor of a real/physical product a limited (no more then 10 years IMO for most not all industries) monopoly on that product will create incentive for that inventor and others both large and small to continue inventing knowing that their hard work will not be snatched up.

          However, the greed and corruption of our (USA) politicians has allowed mostly big business to buy and pervert the patent systems to allow things like Amazon's "One-Click" patent. It is just insane to say that no other online merchant can allow their customers to purchase a product with one click without paying Amazon for that right. There is no invention in the "One-Click" patent.

          I personally think software patents are bad. At the end of the day software patents are nothing more then mathematical algorithms. We don't allow some crazy mathematician to patent the process of adding two numbers. So why should we allow the big software companies to patent software? We don't allow a chef to patent recipes which would take away all the building-block tools of a chef. Yet we allow big companies to take away all the building blocks of software programmers.

          "Innovation" is pretty much limited to the big corps. If a small-fish wants to get in the game, the best they can hope for is to get their product or their company bought out by the big-fish. The ability for a small-fish to actually invent a product and bring it to market is getting smaller and smaller with each corrupted patent that is granted.

    • Re:One-sided article (Score:4, Interesting)

      by dpille ( 547949 ) on Monday November 15, 2004 @01:02PM (#10821115)
      Don't trust my non-google-reinforced memory, but:

      I think this was a court decision (State Street?). I think the reasoning boiled down to the fact that the court believed a business method satisfied all the statutory requirements for patentable material, saw no prohibition against it, and said so.

      The 'other side' in some sense, then, is legal inertia- good luck getting a law passed that says no to business method patents once someone's benefitting from them.
    • by Thangodin ( 177516 ) <elentarNO@SPAMsympatico.ca> on Monday November 15, 2004 @01:02PM (#10821118) Homepage
      Actually, they address both sides--the need to encourage innovation as well as the need to reward it. The problem now is that legitimate patents can be too expensive, and too many illegitimate ones get through. The system is buckling under the load of spurious IP speculators. Your likelihood of getting a patent now may have less to do with how good or novel the design or process is, and more to do with how many lawyers you can afford.
      • Actually it's worse (Score:3, Interesting)

        by mericet ( 550554 )
        If you understand the USPTO mentality, there's no patent that you can't get through, they are simply that inept. I was once in an R&D position, after a having a few patents under my sleeve, I was able to pass just about anything without the help of a lawyer, true, they reject everything outright, but they simply don't understand what they reject, and are used to being corrected, after a few rounds of bogus rejections, some meaningless concessions on your part, and making them feel stupid enough (refutin
    • by Anonymous Coward on Monday November 15, 2004 @01:06PM (#10821157)
      Considering you're an obvious troll (you used the word 'slashbot'), I debated whether to answer you..

      What was the motivation for allowing business method patents?

      Someone convinced the Supreme Court that a business method was "science", and therefore worthy of patent protection.

      The problem this faces is that a business method, by definition, is it's own reward.

      Patents are supposed to further innovation by rewarding the inventors. The argument is that if you didn't reward the inventor, then they would not spend the time to make the invention.

      But a "business method" that actually works is it's own reward - no further incentive is required, because the "inventor" gets (wait for it) *BETTER BUSINESS*. There is absolutely *NO* benefit to society for disallowing others to use said 'invention' without paying their competition a license fee.

      In this case, allowing patents on "business methods" is actually *retarding* innovation, because it prohibits someone from independantly coming up with a similar method.
    • Actually (Score:5, Interesting)

      by Prince Vegeta SSJ4 ( 718736 ) on Monday November 15, 2004 @01:11PM (#10821199)
      Business Method Patents have historically been frowned upon. Patents 'traditionally' revolved around a single theory - that they were meant to protect actual devices or physical tech.

      One could also argue that there is no need for this type of patent, there have always been innovative accounting methods, financial instruments or services, even without the protection a patent affords. However, teh counter agruments were that due to rising costs, it becomes increasingly harder to create this innovative ideas and processes. Further, one could say that those that create these processes work just as hard as those who create physical technology. Why discriminate solely on the basis of subject matter.

      Again, another counter argument can be made. When determining 'the cost' to business, what does cost actually mean. Is it more costly to a single business, when there idea is not patentable? Is it more costly to business as a whole, where they are excluded from using a patented method?

      Really, IMHO, there are no definite answers. But I just wanted to inject some of the thoughts which go into this type of patent.

      For more info, see: Patent Law and Policy: Cases & Materials, Second Edition by Robert Patrick Merges

    • Re:One-sided article (Score:4, Informative)

      by Jumbo Jimbo ( 828571 ) on Monday November 15, 2004 @01:12PM (#10821209)
      The motivation for allowing business-method patents, described in this paper from Harvard Law School [harvard.edu] is that innovations were too easy to copy - essentially the same motivation behind the original idea of patents.

      It seems that a good idea in principle may have resulted in legislation that is not working in practice because of a flawed framework / companies taking advantage (your choice). Not that I agree with the idea of business-method patents in the first place, but this may make the idea behind them clearer.

    • The big turning point in Business Method Patents, as someone stated, was State Street Bank & Trust Co. v. Signature Financial Group, Inc. - 1998 [umd.edu]. The key point in this change of attitude was, according to Judge Rich, that "business methods have been, and should have been, subject to the same legal requirements for patentability as applied to any other process or method" (refering to In Re Schrader, 2 F.3d 290 (Fed.Cir.1994).
      Somehow, it makes sense -- the general set of criteria for patentability shoul
    • Re:One-sided article (Score:4, Interesting)

      by lothar97 ( 768215 ) * <[owen] [at] [smigelski.org]> on Monday November 15, 2004 @01:44PM (#10821554) Homepage Journal
      What was the motivation for allowing business method patents?

      Answer: like any other type of patent, the motivation is to protect the invention and allow the inventor to take advantage of having discovered this business method.

      I've written several business method patents involving methods of providing life insurance. When the client first came to us, it was tough to figure out what they had discovered. The did find a unique way to fund life insurance, and wanted to make sure they were the only ones who could provide this service. As they had spent several years developing this method, I see no reason why they should not be able to protect their invention.

      One thing I was shocked to learn while drafting the patent application- there are many patents involving insurance funding (our client was unique). There were even some that got through in Europe (which will allow a business method to be included if attached to something that is patentable).

      While part of me thinks it might retard competition, I do have to say that companies invest time & money into developing these methods- and want rewards.

    • The problem with terms like "Intellectual Property" and "Copyright" is that we start to think of it as some kind of natural law, i.e. that we have inalienable and exclusive moral right to an idea just because we thought of it first.


      We have a legal right because some government has granted us monopoly. Why? Because said government has deemed it beneficial to Commerce, in the belief/hope that it would stimulate innovation.

      Unfortunately the prevailing attitude seems to be that Intellectual Property

    • The article only presents one side of the picture, albeit, the slashbot side.

      It wouldn't be much of an opinion piece (it is clearly identified as such at the top of the page) if the author didn't state an opinion and then write in support of that opinion! In matters of opinion, the middle of the road is the best place to be hit by a car.

      It is up to those who disagree to write their own articles.

    • The article only presents one side of the picture, albeit, the slashbot side.

      Do you really think that The Economist, one of the most respected news magazines in the world, and one with a generally pro-corporate slant, is actually in the business of presenting "the slashbot side" of arguments?

      A more reasonable interpretation, IMNSGDHO, is that when a source that is the very embodiment of suit-think agrees with the generally anti-corporate /. crowd that something is wrong with the way we're currently doin
  • by IgD ( 232964 ) on Monday November 15, 2004 @12:53PM (#10821020)
    I see this patent buisness model as no different than the other booms (biotech, dot com) that all busted. Plain and simple, the patent business model means making money without any productivity. Instead of Network Solutions, we will have Patent Solutions so you can patent the 100 different ways to breath. There is no way this business model can succeed. Reform is coming sooner or later.
    • Very correct! Most people don't know what a patent is, and most people who do live in countries where they can actively say "screw patens, we don't belong to any international accord on this" and just do whatever they want.

      That's why, really, if you have something REALLY valuable you DON'T patent it, you just keep it secret.
    • Maybe... but how would it burst? A small company may need a patent to get VC fundend, then they get bought by one of these patent portfolio companies that sue the small companies competitors who can't afford to fight in court. Sounds to me, the only way to change that is to change the laws, there is no economics in it that will make things like this go away.

      Also, the EU will probably adapt the US patent system. So the mess in the US will probably transfer to Europe and I can't see any reason why any bubble

    • by ites ( 600337 ) on Monday November 15, 2004 @01:41PM (#10821520) Journal
      It will burst but the timescales are not the same as for most other bubbles.

      The difference is this: other bubbles work by inflating the prospects of future returns on investment, creating a pyramid scheme in which new investors are lured by the prospect of huge rewards while old investors sell out and actually make the rewards. When the pool of new investors runs out, bubble bursts and granny loses her savings.

      The patents bubble is not based on this model at all. Rather, it's a scheme by which a small group of people have turned the law into a tool for extortion. As long as they don't extort more from the system than it can bear, the business of patents will continue. At a certain moment the tax that this creates on normal business activity will cause those economies which allow it to become uncompetitive and thus die.

      The end-game for the patent players is to get a global hegemony because then uncompetitiveness does not matter any more. But this is highly unlikely: the advantages to small countries of having unfettered technology will outweigh any advantages of being compatible with the USA's "policies".

      So we'll see about 5 more years of fighting for positions, then 10-15 years of ruthless extortion during which technology advancement suffers and stagnates, and then revolt by either government as they start to see the impact on economic growth and tax income, or by smaller to middle-sized businesses as they find themselves unable to operate normally.

      A better parallel would be the monopolised telecoms industries in the west, which lasted for 50 years or so, and which caused serious hinderence to technological progress until they were dismantled by regulators.

      The patent business will be dismantled around 2025, at the earliest. From 2010 to 2025, if you are a small independent technology producer you will have three choices:

      1. illegality, black-market.

      2. join a patent club and pay the costs (equivalent to merging with a larger business).

      3. relocate to a patent haven such as Liberia.

      Options 1 and 3 are pretty similar since any business using foreign software which violates patents will be subject to penalties.

      And it won't be sufficient to say "this software does not violate patents", you will need a certificate of conformity, period. Like selling a car.

      It's a sad prognosis for OSS, which is my main business, but I think it's inevitable. Money talks, and we are seeing a true gold rush here.
  • by jbeaupre ( 752124 ) on Monday November 15, 2004 @12:53PM (#10821024)
    The article is a nice opinion piece. But before all you folks start ranting, please learn what a patent is/isn't and how they work. I predict a huge ammount of nonsense is about to be spewed.

    • I would suggest that all people who can't stop talking about the endless virtues of the patent system, listed to this speech [ugent.be] (mp4 audio) given by David Martin [m-cam.com] from M-CAM at the FFII conference [ffii.org] on software patents last week (especially from 2m40 in the clip). The full "audio proceedings" (and most slides) of the conference are linked from the conference page.

      That person is specialised in figuring out the real value of patents (that's what his company [m-cam.com] does), and the picture he paints is not a pretty one. No

  • by rice_burners_suck ( 243660 ) on Monday November 15, 2004 @12:54PM (#10821034)
    I have an interesting idea: Pass new legislation that makes it ILLEGAL for an individual or small business with less than 1000 employees to obtain a patent. Then, only large businesses can obtain them. Further, some additional clauses in the legislation will require that such small businesses, if they wish to license the patent, will have to pay additional monies besides the license fees, such as additional taxes, penalties, and fines, which the government will spend on fancy furniture and catering for patent office employees. Any patent application filed by a corporation with 20,000 employees or more, or at least 5 billion dollars in liquid assets, will be automatically approved. Corporations smaller than this will have to go through a patent approval process, the complexity and expense of which will be inversely proportional to the size of the corporation. Thus, a corporation with the minimum 1,000 employees will have to endure the most difficult patent approval process, and a corporation with, say, 10,000 employees will go through a process only half as difficult.

    This will balance out the patent system and make the system fair for all involved. Clearly, such a patent system will benefit the consumer.

    • Sorry, I'm afraid your idea has already been patented as a business process by the USPTO and implemented.

      Your fines come to $97,000 based on RIAA lawsuit settlements for infringement (on the reasonably assumption that you make more than that much per year, but that it will also serve as a deterrent to future infringement) OR 30,000 pages of patent applications to provide work for USPTO employees to justify laying off an additional 12.5% of their workforce.
  • by MichiganDan ( 720608 ) * on Monday November 15, 2004 @12:54PM (#10821035)
    A bit of research and theory suggests that, while these patents are a big pain in the US, there might be a case for implementing them in developing countries, in order to reward entrepreneurs who find successful business models and practices. Currently, there are few incentives for discovery of new industries in developing countries, since as soon as they are discovered, everyone rushes in and the original entrepreneur is put out of business.

    And rule one of capitalism: without incentives, there's no innovation.

    See for example Ricardo Hausmann and Dani Rodrik, "Economic Development as Self-{Discovery" [nber.org]
  • by omghi2u ( 808195 ) on Monday November 15, 2004 @12:54PM (#10821040) Journal
    If we got rid of currency and patents and lawyers, think how happy the world would be.

    We could do things for the sheer GOOD of doing them, people would be creative for creativity's sake. Just think Star Trek and don't tell me I'm wrong.

    Thanks, commrade!
    • Imagine there's no patents,
      And no copyrights,
      We'd all share our software,
      And reach new creative heights.

      You may say I'm a dreamer...
  • by TheMeuge ( 645043 ) on Monday November 15, 2004 @12:57PM (#10821066)
    Give these guys a break ;) They're just trying to help out the ailing hordes of patent lawyers. I mean if one could no longer patent the very process of 'post-factum patent squatting litigation', what would happen to the poor folks?! Personally, I have filed a patent for the "process of gaining permission for sexual activity with a previously unknown person through the use of mood-altering and/or intoxicating substances". Upon the patent being granted I expect to file no less than 10'000 lawsuits/day for patent infringement, mainly around college campuses.
  • by Balaitous ( 126540 ) on Monday November 15, 2004 @12:59PM (#10821081) Homepage
    IMHO, this editorial piece is a strategic smoke screen to put the emphasis on "patent reform" in front of the growing movements that challenge the scope of patentable subject matter. In the recent Geneva Conference on the Future of WIPO [tacd.org], the USPTO, WIPO and US Trade representative all supported "tuning generic patentability criteria", while critics supported excluding software, information processing, gene sequences and vegetal varieties from patentability. Guess which has more chance to bring the system back to reason ? Guess which is supported by the big patent portfolio holders ?
  • by Phil246 ( 803464 ) on Monday November 15, 2004 @01:01PM (#10821110)
    its the people who willingly abuse it
    patents, when applied for and granted PROPERLY are a good thing. However when they`re just used to cover your bases, so you can wait for some unlucky person to come along and try to do what youve patented, you can slam him with a lawsuit.

    i think it was suggested a fair few stories like this back by someone for a use it or lose it style system, although it would create more lawsuits short term. it might just reduce the lawsuits which wait for a company or person to become nice and fat, for skimming.

    The best solution would be to have those staff at the US patent office especially, but also other patent offices around the world to have the time, staff, training and ability to scrupulously check every single application.
    perhaps barring those who apply for dodgy patents for a year or two? might be a little extreme to do that but its an idea at least.

    • Gun violence isn't the fault of the guns, it's the fault of the idiot users. That doesn't mean we shouldn't reform the system that allows idiots to get guns. Background checks, mandatory waiting, etc. are all in place because you'll never fix "the person." We can't get rid of patents altogether, just as we can't rid the world of guns. But we can certainly improve the process through which they are obtained.

      I would like to see the courts smack some of the these ridiculous patents around, hopefully setting p
    • A well designed system does not rely on the the assumption that no participant will abuse it. When abusing a system is beneficial to the abuser, any system that has no explicit definition of abuse and/or no negative-feedback (read punishment) on abuse will be BE ABUSED - abusing such a system will only provide rewards and no penalties.

      This is as valid for a set of rules encoded as a construct of laws as it is for any set of rules determining usage/access of/to a system.

      I sugest some form of punishement sh
  • Frivolous Patents (Score:5, Interesting)

    by P-Nuts ( 592605 ) on Monday November 15, 2004 @01:03PM (#10821129)
    As TFA seems to state, the principal problem in the patenting system is that it is too easy to get a patent granted on what, after a lengthy legal trial will probably turn out not to have been patentable. The difficulty is that patenting stuff is already a bit expensive, putting off people who aren't big corporations. So how can a better vetting system be introduced to force patent offices to look harder at each application for obviousness/prior-artiness?

    The article suggests that competitors could perform this task if the application process were made more open. This makes the patent process somewhat similar to obtaining planning permission (putting up notices saying what you plan, and giving people a chance to object in some period of time).

    One thing seems certain, that only if more patents are rejected by the patent office, will people file fewer frivolous patents. But as the system stands, the patent office has little incentive - they just want to collect their fee without too much hassle. Only by changing the system so that the patent office suffers each time a patent it granted is later found in court to be dubious, will they be motivated to improve the quality of the vetting procedure.
    • Re:Frivolous Patents (Score:3, Interesting)

      by mOdQuArK! ( 87332 )

      So how can a better vetting system be introduced to force patent offices to look harder at each application for obviousness/prior-artiness?

      How 'bout a fixed, limited number of patents? Companies/individuals/organizations can bid on filed patents & the top $N grossing patents are granted to the winners, and everything which ends up below the cutoff mark becomes public domain. Obviousness & prior art are still allowed to be factors (which would greatly affect the bidding price, since a patent which w

  • by srowen ( 206154 ) on Monday November 15, 2004 @01:04PM (#10821137)
    I'm not the first to propose this idea, but...

    Today in the US, patents are submitted to the USPTO, where they are researched and approved or rejected. If approved, they are presumed valid, unless/until someone else challenges it and requests a review.

    The USPTO is overwhelmed and in no position to accurately judge the validity of every one of these patents.

    So why try? why bother reviewing them upfront? The USPTO could accept all patent applications, catalog them, make them public, but do not endorse them as valid until proven otherwise.

    When patent conflicts arise, as they do today, companies can ask the USPTO to rule on the existing patents. At that time, all parties have a chance to supply relevant evidence to the USPTO about the patent's validity or invalidity.

    The plus side is that the USPTO stops pretending it can deal with all this work effectively. It only spends effort on patents that companies think are worth fighting over (and before litigation).

    The downside is that companies must publicly submit information about their patentable ideas without a guarantee that they will receive a patent. But, that is a healthy incentive to avoid spurious patents, which is missing today.

    What do you guys think?
    • by Qzukk ( 229616 ) on Monday November 15, 2004 @01:15PM (#10821258) Journal
      I think this 1) isn't going to happen and 2) isn't going to fix the larger problem at hand, that being that patents are being approved and fought out in court at great expense to everyone involved. Your plan in fact helps to encourage the latter, as now everyone, valid patent/infringement claim or not has to hash it out and throw lawyers at a technology problem.
      • by srowen ( 206154 ) on Monday November 15, 2004 @01:27PM (#10821385)
        The hope is that this all goes through the USPTO first, not the courts. Let's say I think your patent is invalid -- we ask the USPTO to review the patent then. The USPTO doesn't bother reviewing your patent until someone cares about it, that's all -- thereby saving the expense of reviewing the 99% of patents that nobody ever looks at again.

        Hopefully the USPTO then has more resources to really make good patent decisions about the "important" patents. Plus, under this system, the challenger can present evidence agains the patent's validity, and cheaply.

        It's not going to avoid lawsuits entirely -- if the USPTO thinks your patent is valid but I still don't, I can still throw lawyers at you. But hopefully the USPTO decisions will be more informed, and therefore, more easily upheld in litigation, and therefore reduce the amount of litigation over bad patents.

        Not a complete solution, but an intriguing proposal I think!
    • by zx75 ( 304335 ) on Monday November 15, 2004 @01:24PM (#10821345) Homepage
      Innocent until proven guilty? What a novel idea, one thinks this might have applicable usage in other areas of law as well as it seems move obvious by the day that the system does not follow any such noble ideal.
    • Businesses/corporations have bigger "guns" as in lawyers so individuals would havve a tough time defending patents against the likes of IBM, MS, HP, etc. Justice may be blind, but it knows the scent of money. Just think, a poor old soul would have to devote his/her entire time and money in defending the patent while the bigger corps can just assign an intenting lawyer to the case. I wonder who would really when when you count the "chips" in the end.

    • With the exception of the whole endorsement part this is exactly as the system works now.
  • by g0hare ( 565322 ) on Monday November 15, 2004 @01:05PM (#10821146)
    Base your corporation in Delaware, use the patents illegally, and pay yourself huge sums of money. If people get mad they can sue the corporation, but you don't care because you aren't the corporation.
    • The liability shield for corporations does NOT include negligent behavior. Blatantly stealing patented technology is negligent. You'd be f*cked.

  • Good News (Score:5, Funny)

    by dfn5 ( 524972 ) on Monday November 15, 2004 @01:06PM (#10821152) Journal
    business-method' patents, granting for the first time patent monopolies simply for new ways of doing business

    I'm going to patent the business model of treating employees like shit. Then I'll sue every company for patent infringement.

  • by Anita Coney ( 648748 ) on Monday November 15, 2004 @01:07PM (#10821163) Homepage
    Keep business and software patents, but put the burden on the patent holder to prove it's valid (i.e., useful, novel and not obvious) in any subsequent trial or hearing.

    And if the patent holder loses, it has to pay all of the challenger's legal costs.

  • by ajs318 ( 655362 ) <sd_resp2@earthsho[ ]o.uk ['d.c' in gap]> on Monday November 15, 2004 @01:11PM (#10821203)
    I have an idea for a robbery technique. I was thinking to patent it, as it depends on a recent change and so there cannot be any prior art. I don't see why the criminals should be the only ones making money out of crime! Let them steal goods and money, for sure, but they'll have to pay me royalties if they want to do it the way I thought up.

    However, then I thought it might be better to phrase the claim as a technique for being robbed instead. This ought to be more lucrative. The perpetrator may not get caught after all, and the victim probably is insured anyway.
  • Sweet! (Score:4, Funny)

    by foreverdisillusioned ( 763799 ) on Monday November 15, 2004 @01:12PM (#10821216) Journal
    I've got a great new idea, even better than Amazon's revolutionary one-click shopping!

    I'm going to accept money in exchange for goods or services. Anyone else who decides to copy this business model must pay me, oh, how about $699...
  • by Anonymous Coward on Monday November 15, 2004 @01:18PM (#10821290)
    I wonder would the following simple addition to patent laws fix the bulk problem:

    Basically, keep things as is, but limit the patent term to,say, 5 years. After that patent owner can extend it to the full 17 year term but make the extension EXPENSIVE (say, 40K per patent).. Basically, the idea is that 5-7 years of goverment protection should be enough to prove/disprove commercial viability of almost anything...And if idea is commercially viable, then 40K is not that much money, and if a patent is not viable, even IBM is unlikely to pay 40K for a useless piece of paper...

    Of course, an (intended) side effect is that most companies will stop filing valueless patents.
    (as 5 years is too short a term to bother and full term is too expensive)...The problem of submarine patents would simply go away...

    • by PMuse ( 320639 ) on Monday November 15, 2004 @03:39PM (#10822750)
      Basically, keep things as is, but limit the patent term to,say, 5 years. After that patent owner can extend it to the full 17 year term but make the extension EXPENSIVE (say, 40K per patent)...

      The system you suggest already exists and has existed for decades, albeit at about 1/10th the costs you propose. It is called Maintenance Fees [uspto.gov]. See 37 CFR 1.362 et seq. [cornell.edu] These fees are due at 4, 8, and 12 years after issuance. Big companies are charged higher amounts than small ones.
  • by swillden ( 191260 ) * <shawn-ds@willden.org> on Monday November 15, 2004 @01:25PM (#10821363) Homepage Journal

    The article points out that we need a way of evaluating whether or not a patent system is meeting its goals of fostering innovation. The article suggests:

    Patent offices also need to collect and publish data about what happens once patents are granted--the rate at which they are challenged and how many are struck down. This would help to measure the quality of the patent system itself, and offer some way of evaluating whether it is working to promote innovation, or to impede it.

    That's a good idea, but I think there's a better way to determine if the patent system is successful at promoting innovation: analyze how the patent database is used. The stated goal of the system is to provide inventors with a short-term monopoly in exchange for public disclosure of their inventions, in order to spur more invention. That makes sense, right? If you get good ideas out in the public where people can see and build on them, you'll generate even more ideas, some of which will also be good. Ideas spark ideas.

    This implies that if the patent system is working, you should see inventors perusing/searching the patent database on a regular basis, in search of good ideas to spark their thinking, or in search of solutions to specific problems they're trying to solve in their own inventions. I imagine a scene something like this:

    Engineer: Hey, boss, you know that tricky database search problem we've been trying to solve? I just spent a few hours searching the USPTO site and I came across patent #123456789. It's a *perfect* solution! It'll not only address the problem we had, but it will make our product even more flexible and easier to use.

    Manager: Great! Get me the contact information for the patent holder and I'll contact them to check into licensing terms. If they're reasonable, this could save us a bundle in development costs. We've put several hundred man-hours into this problem already. Maybe the patent owner will have an implementation they'd like to license us, too.

    Engineer: Sounds good. I'll tell Jim to shift his focus to tracking down that nasty memory leak, on the assumption that the search problem is solved. Meanwhile, while I was looking through the patent database I also came across another patent which we can't use, but which gave me another interesting idea...

    Does anyone use the patent database like this? No. Especially not with software patents. In fact, in every corporation I know of the attorneys explicitly tell developers *not* to search the patent database, as it's generally better to remain ignorant, both to avoid allegations of "willfull" infringement, and also because it's just a waste of time. Most patents are contestable anyway, and even for the ones that might hold up in court it's generally more cost-effective to just cross-license using your own patent arsenal.

    I think the measure of the patent system should be whether or not its required disclosures are observably fostering innovation. If not, it's broken.

    • you should see inventors perusing/searching the patent database on a regular basis

      Except that, where I work, engineers are told to avoid looking in the patent database. That way, the company cannot be sued for "willful patent infringement" when they inadvertently develop something that's similar to something that's already patented.

  • by ASP ( 3295 ) on Monday November 15, 2004 @01:47PM (#10821592)
    Unless you have $1M to litigate, a patent is next to worthless. The lone inventor, unless rich, gains no real protection from them.
  • With all this shit flying around regarding software patents, I was wondering how the aerospace companies might patent everything in their respective field.

    The idea being that no one will develop outer space but these companies and, of course, NASA.

  • by radtea ( 464814 ) on Monday November 15, 2004 @02:23PM (#10821954)
    The article references one of the traditional justifications for patents: that an inventor is granted a time-limited monopoly in exchange for full disclosure of the invention.

    But with regard to software patents, particularly ones like Amazon's one-click patent, there are many inventions that are effectively self-disclosing: if you see that it is done, you know how it is done.

    I wonder if it would be possible under U.S. patent law to challenge these patents on this basis? I strongly doubt it, but the very fact that such inventions are patented is a measure of how badly the patent system needs reform.

    Ideas are not property, and patents do not grant property rights. They grant monopoly rights in exchange for something else. What is the "something else" in the case of things like the one-click patent? What are we, the public, getting that we would not get otherwise?

    • ...there are many inventions that are effectively self-disclosing: if you see that it is done, you know how it is done. I wonder if it would be possible under U.S. patent law to challenge these patents on this basis? I strongly doubt it, but the very fact that such inventions are patented is a measure of how badly the patent system needs reform.

      That makes no sense. Should the guy who invented the zipper not get a patent, just because it's obvious once you see it? What about the vacuum cleaner?

  • The Gauntlet (Score:3, Informative)

    by rumblin'rabbit ( 711865 ) on Monday November 15, 2004 @03:00PM (#10822342) Journal
    A serious problem with patents is how difficult it is to determine whether something is covered by a patent. Here are some of the obstacles:
    • You have to know how to do a patent search. This is fairly mechanical, but many don't know how to do it.
    • You have to know what keywords to search on. There can be many different names for the same things, particularly between different disciplines (eg, singular-value decomposition, principal component, Karhunen-Loeve, reduced rank, and eigen-whatever can all mean the same thing). Even experts in the field might not be able to think of all possible terms.
    • You have to know how to read patents in general. This is no small thing.
    • You have to be able to understand the particular patent you are reading. Good luck. Patents can be remarkably opaque. I've read patents in areas that I'm expert in, and been left with only a vague idea of what they were about.
    • After you understand the technical aspects of the patent, you have to analyze exactly what is and is not covered by the patent. In many cases this can take considerable legal expertise. It may even require the services of a patent lawyer.
    • Even when you have determined that an invention is covered by a patent, is the patent valid? For example, a three-year-old patent might describe a method that's been well known for a decade - in other words, it's prior art. A common occurrence is that only part of the patent might be invalid. Do you take the risk of ignoring the patent?
    • Has the owner of the patent been paying the patent maintenance fees? Has there been a judgement overturning or limiting the patent?
    I'm sure others can add to this list.
    • Re:The Gauntlet (Score:3, Informative)

      by back_pages ( 600753 )
      What you say is true, however let me try to give a helpful response.
      • You have to know what keywords to search on.
        It's far easier to search if you use the classification. Rather than hoping you get the right terms, it acts like an index. This alone should narrow down your search to 100-5000 patents, and don't forget they are all cross referenced before being issued and related patents are listed on the front page.
      • You have to know how to read patents in general. This is no small thing. You have to be a
  • My $.02 (Score:5, Insightful)

    by ebrandsberg ( 75344 ) on Monday November 15, 2004 @04:47PM (#10823394)
    The system of patents was developed in a time when there were few people where were experts in a particular area, and the chances of them coming up with the same idea at the same time was slim, because the chances of them working on the same questions was slim. It did still happen sometimes though. Now, however, with our factory education system, there are dozens of people all working on the same issues and they come up with the same solution. The original idea was to protect the inventor from someone using an idea that they developed. Now, the same idea is probably patented at the same time many, many times during almost any parent's review process, which idealy would invalidate a patent on it's own. Why? Because obviously the solution was obvious to someone knowledgeable in the area of technology to have developed the idea at the same time. The patent system has outgrown it's usefulness and needs a major overhaul so that only those truly unique inovations can be patented. In these days, give enough resources, anybody can come up with a solution for nearly any technical problem, it's the true innovations that need to be protected. For example, the idea of an integrated circuit could be patented, but the idea of using a slightly different material to improve performance on it's own is questionable. Through trial and error, you can find what works best and doesn't, but the original idea itself is unique. Same with nearly every other "innovation" in technology today. The advancement of knowledge and problem solving should have raised the bar for patents, but it hasn't, instead the bar has been lowered.

In seeking the unattainable, simplicity only gets in the way. -- Epigrams in Programming, ACM SIGPLAN Sept. 1982