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Ex-Microsoft CTO Checks In On Patent Reform 144

Posted by timothy from the easy-for-him-to-say dept.
theodp writes "Defending his controversial Intellectual Ventures in a less-than-hard-hitting CNET interview, ex-Microsoft CTO Nathan Myhrvold finds it peculiar that some people get really wound up over patents. 'People generally don't have any problem with the patent system,' quipped Myhrvold, the inventor of Microsoft's patented Television scheduling system for displaying a grid representing scheduled layout and selecting a programming parameter for display or recording, which allows you to more efficiently select shows like Elimidate for viewing."
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Ex-Microsoft CTO Checks In On Patent Reform More

Ex-Microsoft CTO Checks In On Patent Reform

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  • Not all patents (Score:5, Insightful)

    by danbond_98 ( 761308 ) on Saturday April 30, 2005 @01:36PM (#12392817)
    Not all patents are a problem i don't think, certainly nobody seems to object, it's just when very vauge ideas are patented and stockpiled by big companies that everyone starts questioning if the system needs sorting. Gotta love the idea of having to have a working implementation of the idea, that would at least weed out a fair amount of dodgy patents.

    • Something (Score:3, Insightful)

      by Anonymous Coward
      A perspective I see commonly expressed around here is that patents are by and large not a bad thing but that software patents are in fact a very bad thing. Or sometimes, that patents are a good thing or at least a necessary evil but that software, "process", and "business strategy" patents are a very, very bad thing.

      In the case of "process" and "business plan" patents, this is somewhat similar to what you are saying, because such patents are, by their very nature, vague.

      In the case of software patents tho
      • plus with a normal product you'll have only one or two patents attached. For even a small piece of software or even a website it can have hundreds of patents attached to it. Writing legal software is the equivalent of running over a minefield blindfolded (uh not that you could see the mines anyway but the analogy sounds better with the blindfolded part)
      • "The idea you can violate a patent simply by writing something seems absurd." Exactly. This is at least part of the reason math isn't patentable. When you look at patents on say RSA encryption algorithms... ok sure its a software algorithm, but christ it is really just math.
    • Patents in general always sucked, because they were simply a small improvement over the royal grant of a monopoly.

      There may be good reasons for granting a monopoly to someone, but none of these can expressed in the rules for patents and even the rules on what constitutes a valid patent are vague. Such that the only rule a patent has to follow today to be granted is that it is new(and sometimes not even that).

      Clearly the requirement of originality(sometimes called height of invention or inventiveness), whi

    • Gotta love the idea of having to have a working implementation of the idea, that would at least weed out a fair amount of dodgy patents.

      Only patents that don't matter.

      ---

      zealotry [reference.com] n : excessive intolerance of opposing views. [microsoft.com]

    • A Violent Protest Against Patents

      Patents are directly responsible for the death of millions. They are
      NOT "property" and especially not free market or capitalistic (contrary
      to popular belief). In addition, the notion that patents help the "little
      guy" is a fraud, people don't invent for patents, and patents financially
      help lawyers far more than inventors or businesses. When it comes to R&D
      patents have the effect of growing a few extra big trees at the
      expense of killing the orchard. Patents drive u

    • Not all patents are a problem

      If those patents underlie an important part of peoples' lives and are long-lived, then they become a problem.

      They become a drag on the efficiency of the marketplace; they are no different from a tax or a transfer payment, even if they are called by a different name and dressed up in noble language.

  • need another cup o' Joe (Score:3, Funny)

    by Anonymous Coward on Saturday April 30, 2005 @01:36PM (#12392819)
    Since stepping down as the company's chief technology officer five years ago, Myhrvold has pursued paleontology..

    The first time I read that as "Myhrvold has pursued patentology.."

    • The first time I read that as "Myhrvold has pursued patentology.."

      I hope it's not one of those UFO cults, right?

      "And now our heavenly society will rule the world with the use of patents..."

      GAH!!!! whew... it was just a dream.

  • No, no, no (Score:5, Insightful)

    by Anonymous Coward on Saturday April 30, 2005 @01:37PM (#12392827)
    What you mean is that YOU do not have a problem with the patent system. However you do not speak for all "people", and in fact you are markedly different from most people.

    To wit: When you get slapped with a multimillion frivolous patent lawsuit from a tiny scumbag parasite company like Eolas which threatens your very livelihood and business that you have worked so hard to build, you can afford to have uncle bill toss gobs of money at litigating it, then gobs more money at settling or buying off the company if it starts to look like their chances of exploiting a legal loophole to win are nonzero. And in the end you don't feel a thing. Most people can't do this. As a result "people"-- i.e. not you, real people who live outside the ivory tower where half-decade lawsuits are a negligable cost-- do tend to have problems with the patent system.

    • Re:No, no, no (Score:5, Insightful)

      by globalar ( 669767 ) on Saturday April 30, 2005 @01:44PM (#12392862) Homepage
      Exactly, the current patent system encourages hegemony, not competition. Obviously, artifical monopolies are not self-regulating.
      • I have an idea to reform the patent system. Instead of giving the company a temporary monopoly, just give them a monetary prize. This way, less patents would be granted, research companies still get their money, and everyone can use the new technology. It would essentially be licensing the patent to the public domain.
        • If the prize was a government-set mandatory liscensing fee for patent usage, with the intent of insuring noone bought a patent to sit on it, then maybe.

          But there would be a lot of things that would have to be worked out. Specifically, how do you fairly set that price point.

          Besides, the biggest problem with patents is that they're given away like candy. With a 'let the courts sort them out' attitude.

    • Litigation costs are not unique to the patent system.
    • The man is defending his new firm, which is a "think tank" to dream up "new" ideas to hold patents on and sue people over.

      You don't think he might be bit biased on the issue, do you?

      Anyone who doesn't see the problem with firms like this should go read Feynman's "What do You Care What People Think?". . . and demand your dollar for every thought that ever enters your head.

      KFG
    • No, I think you'll find that *most* people don't give a rat's arse about patents. We here *are not most people*.

    • Re:No, no, no (Score:3, Insightful)

      by norton_I ( 64015 )
      Most people don't have a problem with the patent system because most people do not imagine that it can affect them. These people do not support the patent system either, they are indifferent. Even so, I can't count the number of people I have talked to who think patents are fine, but are amazed to hear about patents such as Amazon's 1-click patent.

      I would say that most software developers believe software patents are dumb. That the other 99% of the population doesn't care is not a convincing argument th

    • Actually, most people don't have a problem with the patent system, because they have no idea that there might in fact be anything wrong with the patent system. Fun experiment: Ask someone you know in real life what they think about software patents. If they respond to you with more than a blank stare, they're an exception rather than the rule.

      Most people in the software industry have problems with software patents, but being that they make up a relatively small subset of the unwashed voting masses, this do

      • Actually, most people don't have a problem with the patent system because they are

        a) Too stupid to understand the problem
        b) Too ignorant to understand the problem
        c) Not imaginative enough to concieve that there could be something better
        d) Already using the patent system to screw society to their own advantage.

        The stupid and the ignorant don't see the corelation between things like retardedly overpriced drugs and patents. They don't see the problem with patents on lifeforms. They don't see the ramificati

  • Make the call (Score:5, Insightful)

    by Anonymous Coward on Saturday April 30, 2005 @01:41PM (#12392842)
    Go talk to biotech guys and ask them if they want the patent system abolished. They say, "My God!"

    What do they say when you call to tell them that you've patented their DNA?

    • Re:Make the call (Score:5, Funny)

      by ScrewMaster ( 602015 ) on Saturday April 30, 2005 @01:48PM (#12392876)
      There's really no problem, so long as they don't try to replicate. Then you're gonna want royalties.
      • Headline: Replication of Own DNA Requires Payment of Royalties

        Amount Slashdotters pay: $0 in lieu of no infringing uses on record
        • Headline: Replication of Own DNA Requires Payment of Royalties

          Amount Slashdotters pay: $0 in lieu of no infringing uses on record

          Er... I think there are infringing uses, as normal daily metabolism requires replication of cells, and thus DNA. How else does that wound you got when you on the playground as a kid get healed?

          • Actually, we were discussing replication of the entire organism, which in the case of human beings requires actual sex or some reasonable facsimile, and it is generally agreed that that doesn't happen to regular Slashdot posters.
          • God did it! Duh!

            *snort* You and your heathen ideas. What next? Heliocentrism?

            In all seriousness: whoops, you're right. In my haste to make a "/.ers don't have sex" joke, I failed to think the science through.

    • Re:Make the call (Score:2, Interesting)

      by Anonymous Coward
      Here he's using what's known as a strawman argument. Few people want the patent system completely abolished, just less of the junk patents, submarines or ones with tons of prior art that still take expensive court cases to shoot down. Ask people if they'd like to see the patent system reformed with less nonsense and they'd say "Hell yes!"

    • Re:Make the call (Score:3, Insightful)

      by barc0001 ( 173002 )
      Go to 9th century Europe and tell the nobility you want the feudal system abolished. They say "My God!"

      • ...if you want to disband their shiny new Reich.

        BTW, next time you hear "but nobody's complaining," point out that (1) Adolph was elected by popular vote; and (2) very few people complained about him and his crew<*> until it was waaaay too late.

        <*> whom I have deliberately invoked to terminate the thread.
    • They probably say something like "My God, now that's a stupid patent - how the hell did that pass?" I doubt they say "My God, that's a stupid patent, therefore all patents are evil - abolish patents!"
  • Most people aren't developing new IP that's going to be poached by some overzealous patent seeker either.

  • Listen to Bill (Score:5, Interesting)

    by Gorath99 ( 746654 ) on Saturday April 30, 2005 @01:44PM (#12392861)
    If he doesn't understand why people don't like software patents, then maybe he should have paid more attention to his (ex-)boss.

    "If people had understood how patents would be granted when most of today's ideas were invented and had taken out patents, the industry would be at a complete standstill today. ... The solution is patenting as much as we can. A future startup with no patents of its own will be forced to pay whatever price the giants choose to impose. That price might be high. Established companies have an interest in excluding future competitors."
    -- Bill Gates in a 1991 internal memo (Source: http://swpat.ffii.org/vreji/quotes/index.en.html#b gates91 [ffii.org])

    • You misunderstand.

      Bill thinks this is a good thing, and is literally unable to see how anyone could think otherwise.

      These people really do believe that what's good for them is good for everyone. Typical Republicans.

      • He thinks so _now_. Of course he does, he is in a position where the patents are working his way. However, it seems that he is a pretty smart guy who knows how the law is really working. Open source software and small competitors are being f##### by it while he gets the big money!
        Very smart..

      • Re:Listen to Bill (Score:2, Interesting)

        by SeventyBang ( 858415 )
        Typical unknowing...

        First, we do not live in a democracy. A democracy is when three wolves and a sheep vote what's for supper. We are a republic.[1]

        -----------------

        No, that's not what Republicans believe in.

        Both Democrats and Republicans stand for big:
        Republicans believe in big business - generally, via supply side economics: when businesses have enough resources & needs, they'll need more people to fill those jobs, and the employed will benefit by having more money to spend, which will put
        • Typical unknowing...

          First, we do not live in a democracy. A democracy is when three wolves and a sheep vote what's for supper. We are a republic.

          As usual in this audience, very wrong. What you've said above is, in short: we don't live in a democracy, because we don't have a king . Completely non-sensical. A republic is simply a form of state that has a president as its head instead of a monarch. Nothing more, nothing less. Shining examples of republics are the The Peoples Republic of China, the for

          • A republic is simply a form of state that has a president as its head instead of a monarch. Nothing more, nothing less.

            The dictionary disagrees with you [reference.com]. Notably: "A political order in which the supreme power lies in a body of citizens who are entitled to vote for officers and representatives responsible to them." Also known as a "representative democracy".

            Athens is the only "true" democracy in history. However, even they were prejudiced. You had to be a white male landowner to have a vote - kin

            • Lemma 1 of that dictionary does agree with me, it's lemma 2 that you're quoting. I was specifically attacking the statement: "we're not living in a democracy, but a republic". Even with lemma 2, this is false. A representative democracy is still a democracy.

              Furthermore, if we're talking about representative democracies, there is no fundamental difference between a democratic republic as the US, France and Germany, or a democratic monarchy such as the UK, the Netherlands and Scandinavia other than that

        • Quiz Question: Why is it the political leanings of most people who work in the technical arena (geeks & nerds) - not people who are key-entry operators are more libertarian in general?/i?

          I'd take a shot and say it boils down to Kersy temperment. I'll give a simplified version of KT, that my dad used to use with salespeople to help them gain rapport and make a sale.

          There are four types of temperments. The type of temperment you are determines how you decide whether to trust somthing (and thus, in a sal
        • Okay, I should have previewed my post before, but it gets confusing if I don't have the correct italics.

          Quiz Question: Why is it the political leanings of most people who work in the technical arena (geeks & nerds) - not people who are key-entry operators are more libertarian in general??

          I'd take a shot and say it boils down to Kersy temperment. I'll give a simplified version of KT, that my dad used to use with salespeople to help them gain rapport and make a sale.

          There are four types of temperments

      • Interesting quote from Bill...the implication is even more interesting. He acknowledges that if patents had been available before, the market would be at a complete standstill. He goes on to suggest that they patent all they can...and if one logically extrapolates, it's presumably so that they can help bring the market to a standstill. I guess market stagnation is fine, as long as you're an entrenched player.

        The more I think about this, the more I wonder what in HELL they where thinking when they decided t
    • "If people had understood how patents would be granted when most of today's ideas were invented and had taken out patents, the industry would be at a complete standstill today"

      So let's make sure the industry grinds to a complete stanstill and patent everything under the sun

      yeah, thanks billy boy!

  • Not always an issue (Score:5, Insightful)

    by captain igor ( 657633 ) on Saturday April 30, 2005 @01:45PM (#12392865)
    Just when corporations try, and succeede in patenting things like clicking a mouse inside a window, patents are meant to protect creative intellectual property, not to divvy the basic workings of the world up to corporations.
  • Most people don't look into the patent system. As far as they are concerned they will never run a company or invent anything which needs to get involved in it.

    It's more "I don't care because no one ever told me to" rather than "I'm well informed and I think it's fine".

  • Software patent frenzy (Score:5, Insightful)

    by OwlWhacker ( 758974 ) on Saturday April 30, 2005 @01:54PM (#12392897) Journal
    It's not so much that patents are bad, but what people are being allowed to patent.

    With software patents, people are patenting the most simple of ideas, and they're doing it in a frenzy.

    Microsoft's 'IsNot' patent is just one of the pathetic reasons why so many people have become anti-patent.

    Software patents seem to be used mainly as an anti-competitive action, rather than used for protection of clever and innovative ideas.

    Anybody who can't understand what the fuss is about is either completely ignorant of this situation, a moron, or plans to use his own patents in an anti-competitive way.

  • Since stepping down (Score:4, Funny)

    by FidelCatsro ( 861135 ) <fidelcatsro&gmail,com> on Saturday April 30, 2005 @01:59PM (#12392917) Journal
    ex-Microsoft CTO Nathan Myhrvold has made many reports to the police about a strange balding man running after him shouting "DEVELOPER DEVELOPER DEVELOPER DEVELOPER"

  • Someone has got an investor's money (Score:5, Interesting)

    by roman_mir ( 125474 ) on Saturday April 30, 2005 @01:59PM (#12392918) Homepage Journal
    What do you think of the complaints of how patent litigation is hurting companies? Some days it sounds like the trumped-up malpractice crisis of the '80s.

    Myhrvold: Well, this is even stranger. We actually did a study on this. The overall number of lawsuits for patents is growing, but so is the overall number of patents. So explain that to me.

    - this guy doesn't need anything to be explained to him, he is a crook. He did a 'study'? Let him point to the study. Let him show us that study. I bet it was nothing like a study. I bet he sit down with a couple of guys over a beer and talked about how much money they could make from litigation and that was his study.

    If you then look at it and ask, what fraction of those lawsuits are due to companies that have no products, the IP-only companies--it's about 2 percent. If you look at it and say what fraction of lawsuits are due to large technology companies, it's about 2 percent.

    -Look at that, he's got some numbers! I bet he just pulled those numbers out of thin air. I don't know how many companies are out there suing each other over stupid patents but I am sure it is not 2 percent. It is either something very very small like 0.0001 percent or something very large, like over 60 percent but saying it's 2 percent doesn't make any sense. It's not a real number.

    ---

    This guy hopes to make money on litigation that much is clear. He calls himself an inventor. Inventor my ass! I 'invented' things. Plenty of things. One of them is in my russkey [mozdev.org] extension - selecting text in a browser and transforming it into a different type of text right on the page. There. An invention. I bet anyone can come up with that. And I bet it would stiffle innovation if I started suing other people for doing the same.

    • I'm not sure he and his company are evil. They're sort of an independent research lab that also collects and licenses other people's patents. It seems that Myrhvold would like to focus on patents that are high quality, i.e. real inventions. Unfortunately, there is no guarantee that this approach won't degenerate down the road into the extortive tactics used by IP boutiques like Eolas and Forgent.

      Maybe that's why he's gotten Microsoft, Google, and Sony to invest - following LBJ, they'd rather have this g

      • Oh, you don't think they are evil? Well sure, Google is with them, how could they be evil, right?

        The said it plainly: we will come up with ideas and then we will not implement them, we will wait until someone else comes up with the same idea, implements it and then we will be there waiting for our money.

        It's a mafia in the making, what are you, asleep?

        • My understanding is that you have to implement the idea before you can patent it.

          The patent law specifies that the subject matter must be "useful." The term "useful" in this connection refers to the condition that the subject matter has a useful purpose and also includes operativeness, that is, a machine which will not operate to perform the intended purpose would not be called useful, and therefore would not be granted a patent.

          ...
          A patent cannot be obtained upon a mere idea or suggestion. The pa

      • Unfortunately, there is no guarantee that this approach won't degenerate down the road into the extortive tactics used by IP boutiques like Eolas and Forgent.

        I am sure this will happen more and more frequently- companies with large patent portfolios threatening anyone who they think *might* be infringing, can usually extend the pain- even if it is discovered that the initial patents may not have been infringed, they can always threaten to find some that are...or just accept some money and go away. I'd lik
    • Who is so stupid to moderate the parent post as Troll? Stupid stupid.

      BTW., Google is named as one of the investors. What happened to 'Do No Evil' policy?

      How about this, I patent the process of sitting with a couple of guys over a couple of beers and 'inventing' things so that such ridiculous ideas no longer come to fruition.

      Or how about this: patenting a process that allows patenting obvoius ideas. If this passes than USPTO will have a hard time getting a license from me.
    • Myhrvold: Well, this is even stranger. We actually did a study on this. The overall number of lawsuits for patents is growing, but so is the overall number of patents. So explain that to me.

      Ok, I will. You see, when something is so deplorable that it practically mandates a "screw or get screwed" m.o., guess what people will do? DUH. Does he really believe his audience is that stupid?
  • People don't generally care about the patent system because they don't realize how much it limits choice and increases prices.

    They generally think outsourcing is good because they can buy things for half the cost, and drive to Canada to pick up prescription medication because it's more than they can afford here. If they were fully informed about how much the current patent system was costing them fewer would be on the fence about it.

  • wound up? damn straight (Score:1, Interesting)

    by Anonymous Coward
    crap like this stifles invention because there's always gonna be a patent in the way of making a buck after making an idea work...

    here is how it goes...

    you've got a bunch of bucks so you group a bunch of clever guys. you look carefully at the state and direction of technology and you predict points of accreation, or 'invention'.

    because it is not necessary to provide a working example you file both broad and bottle neck patents on these 'inventions'. that is you file broad ones covering the accreation and
  • My view is that because of the strength of the judicial system, the US Patent Office is effectively the world's Patent Office. The patent office must be beleagured by hundreds of thousands of applications every year.

    Given that patent officers are bureaucrats and not technical experts, and that companies and individuals file patents for almost anything, it's not surprising that so many bullshit patents are granted.

    The US IP system definitely need restructuring. But it is important to remember that patents
  • N E one else find it ironic that the ex-CTO of M$ funds the discovery of things that didnt work? Next thing you know Bill Gates will fund the discovery of new Mes-o-potamia(n) civilizations, but only those that were despotic.

  • Abolish the current patent system. 5 Year Maximum! (Score:5, Insightful)

    by Wacky_Wookie ( 683151 ) on Saturday April 30, 2005 @02:23PM (#12393028) Journal
    I find the patent system to have strange parallels with mass religion, or more specifically, evangelical Christian beliefs.

    One loose theory of why religion is originally formed is that it is a mutation of the set of rules the tribal elders set down in order to protect ones tribe. The banning of pork products made sense in the dessert as pork very hard to keep in such harsh conditions. Rules on sexual interaction were originally intended to prevent the spread of STD's in ancient times. These very rules were later warped by the church (which had turned the "rules" into its own organization) in order to force a population increase in their followers. By promoting a warped version of this rule the church now contributes to the spread of STD's, one of the very things its founders most likely hoped to prevent.

    How dose this relate to software patents you ask?

    Well patents were not intended to strangle progress of smaller companies, they were intended to prevent big companies with huge R&D budgets from stealing smaller companies ideas, and either beat them to market with their own idea, or buy off the researchers from the smaller companies with huge bribes.

    But in order to prevent the smaller companies from becoming the very entities that threatened innovation by hoarding their ideas, patents had a time limit on them that was reasonable.

    5-10 years was the norm for most countries I think, but I'd have to look it up.

    Then a funny thing happened. As the means of production became more efficient, i.e. companies needed LESS protection from the competition, patents started to get Longer and Longer. So companies started to buy up patents, or lobby for longer patent lengths.

    The very system that was meant to help innovation is now the main reason that innovation is suffering.

  • Because real people Ignore them. (Score:1, Interesting)

    by Anonymous Coward
    I'm willing to bet that a great deal of patents are willingly violated.

    Either the violators don't care (or more likely) don't know because the patent is something completely obvious.

    Then there are the patent holders who either don't know about the violation because they're lazy and incompetent, don't know simply because it's impossible for them to check all other products / private nonreleased infringements - or they know about it but have chosen not to do anything about it.. yet.. in the hopes of suing a

  • Think about what your saying. (Score:5, Insightful)

    by PocketPick ( 798123 ) on Saturday April 30, 2005 @02:24PM (#12393039)
    People generally don't have any problem with the patent system.

    That's not a very convincing argument when you consider that most people don't have a problem with the patent system because they don't know there's a problem in the first place. Once in a while some patent will go through that will garner some attention (patent on the swing, Smucker PB&J patent, etc) but in general the patent issue flies under the radar. No doubt that's the way they like it though.
  • This company is a company of crooks. They don't want to implement their 'ideas'. What they will do is patent various general ideas and then will wait until someone implements them.

    I think it is very important to make the following change to the patent office rules:

    Whoever it is that comes up with the idea must implement it. If there is no implementation, than the idea cannot be patented at all. Period.

    What this means is that noone can patent their 'idea' without implementation so that they do not dis
  • that the problem with the patent system, in the USA or anywhere else, is that it represents the bleeding edge of technological evolution and creation. The speed at which technology is advancing is so fast that it is nearly impossible to keep up with advancements in your own chosen field, never mind those in 1000s of other fields of technology.

    For the patent offices and patent laws to make sense, it requires that those working in the patent offices and patent law professions to be kept abreast of all develo

  • He's attacking Straw Men (Score:5, Informative)

    by Alsee ( 515537 ) on Saturday April 30, 2005 @03:12PM (#12393267) Homepage
    He rants about people wanting to "abolish the patent system". Yeah, right. Damn straw man arguments. The controversy is over software patents.

    The European Patent Convention says that software is not an invention and cannot be patented.

    That the US Supreme Court has said in various rulings in software cases that:

    Transformation and reduction of an article to a different state or thing is the clue to the patentability of a process claim

    Whether the algorithm was in fact known or unknown at the time of the claimed invention, as one of the "basic tools of scientific and technological work," it is treated as though it were a familiar part of the prior art.

    insignificant post-solution activity will not transform an unpatentable principle into a patentable process

    If you invent something like a new and nonobvious physical rubber manufacturing process it is certainly a patentable physical process whether it mentions software or not. Software does not prevent a an otherwise patentable invention from being patentable.

    Software is not a "process". Any possible software is to be treated as a "familiar part of prior art". You cannot turn unpatentable software into a patentable process without some signifigant post solution physical activity. All from the Supreme Court.

    Lower US courts have violated those Supreme Court rulings, particularly in the State Street Bank case which esentially ushered in software patents. Software patents which were previously and properly rejected. These lower court rulings upholding software patents only remain standing because the US Supreme Court has entirely neglected patent law for far too long.

    -

    • These lower court rulings upholding software patents only remain standing because the US Supreme Court has entirely neglected patent law for far too long.

      or, alternatively, because the SCOTUS has been bought and sold by corporations for so long - like the rest of our government.

    • Re:He's attacking Straw Men (Score:4, Informative)

      by mavenguy ( 126559 ) on Saturday April 30, 2005 @04:36PM (#12393701)
      One thing you have pointed out to those who are flaming the PTO for granting software patents at all is that the PTO pretty much has no choice but to examine such applications for novelty and unobviousness; they can not just make policy to not grant "Software Patents" as failing to meet 35 USC 101 (The issue of "silly", "stupid" or obvious patents is a whole other, separate issue, distinct from this utility issue and which merits a whole other discussion).

      The Office has traditionally been opposed to software patents (along with business methods; take a look at this site [bitlaw.com] for one discussion of this) and so rejected it, but the US Court of Appeals for the Federal Circuit (CAFC) and it's predecessor, the Court of Customs and Patent Appeals (CCPA), have been hot to trot to permit software patents. This position ended up in the Supreme Court with the Benson case back in the 1960s; the CCPA had reversed the PTO, who o appealed to the Supreme Court, who finally ruled in favor of the PTO (i. e., reversing the reversal of the CCPA).

      Scrambling to recover from this smack down, the CCPA and successor CAFC have strained to interpret Benson and other cases as narrowly as possible; as I recall they reversed a PTO rejection of a natural language algorithm, stating Benson only applied to "mathematical" algorithms.

      As you have said, the CAFC continues to follow its "Anything under the sun is potentially patentable subject matter" concept as far as it thinks it can stretch beyond the wording of the Benson and Diehr cases; it will take a flat reversal by the Supreme Court or an act of Congress to change this, neither of which looks likely any time soon.
  • This is probably the first link to Elimidate
    on Slashdot.
  • When I was taking electronics engineering courses there were examples given of what was obvious and therefore could not be patented. After the invention of the bipolar transistor, the common circuit configurations (common collector, common emitter, and common base) could not be patented because that had already been done with tubes (common anode, common cathode, and common gate). In the same way, the configurations for FETs (common source, common drain, and common gate) could not be patented either. Repl

  • Modern patents and reality. (Score:5, Interesting)

    by rjh ( 40933 ) <rjh@sixdemonbag.org> on Saturday April 30, 2005 @04:40PM (#12393719)
    I'm a grad student studying computer security. Recently, I made some discoveries which have the potential to significant increase the security of Web transactions. (With luck, I'll be presenting at Black Hat 2005, so please forgive me not saying more than that until my submission gets a thumbs-up or a thumbs-down.) After hearing from several Ph.Ds in the field that this idea was fairly novel, I decided it'd be good to talk to a patent lawyer. After all, I came up with it on my own time, without using any university resources, in private research unconnected to my university activities, and under my contract my discovery belongs to me.

    So I did my research and found one of the better IP lawyers in the state. I walked into his office with a preprint of my academic paper, copies of existing academic articles which may be considered prior art, everything I thought he'd need.

    His first question was whether I was willing to go bankrupt for this idea. "Uh... what?" I asked. That wasn't what I was expecting to hear.

    The average cost for a successful patent, he explained to me, runs around $7,000. That news floored me; isn't the patent system supposed to be accessible to private citizens?

    Oh, no, he told me, that's not the price. That's the price for a successful application. Right now, only about 35% of all software patents are granted. So the amortized cost of a software patent is about $20,000.

    Then it starts getting even worse.

    About one patent in ten will ever make their original investment back from licensing fees. The overwhelming majority of patents issued fail to recoup their initial outlay. Most patents are not used to get licensing fees; most patents are used to deny other people entry into your market. If a patent can keep other people out from your business, then it might make financial sense; but as it currently stands, since I have no business in this area of the security field... I'd be looking at one chance in ten of recouping my patent cost.

    So, in other words, take the amortized cost of a patent ($20,000) and subtract from it the speculative revenues I'd be receiving ($20,000 * .1 = $2,000). What I'm left with is how much it'd cost me to get a patent, or $18,000.

    That's considerably more than I make in a year as a graduate student. I could possibly, if I sold all my worldly possessions, get that much money together, but I'd probably have to declare bankruptcy as soon as it came time to pay my student loans. Hence, his question: is this idea worth going bankrupt over? Especially given the unavoidable fact that, if I did manage to beat the odds and get good licensing, all the major players would simply threaten to sue me for infringing on patents of theirs I didn't even know I'd infringed, and would offer just a no-cost cross-licensing deal that would let them have access to my patent for free, and all I'd really get out of it would be the mercy of them not suing me? ...

    I'm not opposed to the existence of software patents. I think they're wildly overused, and overused in unethical ways, but there are some algorithms which are so breathtakingly new and innovative that they deserve patent protection. (RSA comes to mind as an example.)

    I am opposed to a patent system which is priced far outside the capabilities of private citizens.

    I am opposed to a patent system which is structured in such a way that large companies can get unlimited access to the small guy's patent portfolio just by threatening a lawsuit.

    I guess you could say I'm opposed to practically every dimension of how patents are currently practiced.
    • Your situation is pretty indicative of the entire patent system today. The system is currently stifling innovation, working against small inventors like yourself, stopping you from benefiting from your innovation and helping everyone as a result.
      If everyone simply followed the old system your idea will essentially go to waste, unused.

      You don't have the money to set up a business to take advantage of your idea. You can't use the patent system to try and licence your idea to companies. You cannot benefit fro
      • Oh, I'm a big open-source partisan. I'd already spoken with my co-author about licensing, and we agreed that if a patent was issued, it would be made at no cost for any project released under an OSI-approved license.

        But we also live in a world where we have to pay the bills. I have to pay for graduate school somehow. I wasn't expecting to get independently wealthy off this idea, but I was hoping to be able to pay for a couple of semesters of grad school from the proceeds. That's a reasonable hope, I th
  • Software (and concept) patents have created quite a bit of controversy lately. Companies war with one another over infringements, and Open Source developers are barred from developing new code because they cannot license the technologies. I think these patents are a monumentally bad idea, and this opinion has nothing to do with barring them entirely, but rather, in restricting cases where they're granted.

    The original reason for the patent system was to give an innovator time to market and profit from his o
    • While your idea, in principle, has merit, I don't think it would be practical to implement.

      What happens when an "innovation" is nothing more than a concept, something that could have been created in a few minutes, with no development costs?

      But how will this be established, and how much additional time will be devoted to this determination? The current examination process already is burdened enough with prior art searching and application to have this thrown in the mix. In fact the following provi

  • I could have thought of that while taking a crap at my ex-girl friends houses baby shower party ! freekin morons. btw I patent taking a crap at my ex-girl friends house babyer shower party, notice i didn't say girlfriends... i said ex- girlfriends!! no ones thought of that!!
  • I had to repost this, why has the patent office done a 180 on patent system reform? Now we can expect it by Christmas, I don't think this present is going to help the elves.

    Folks this proposed change has nothing to do with "fixing" the patent system, this would be a whole sale intelectual property land grab.

    "The head of the U.S. Patent and Trademark Office has endorsed some key reforms that Congress is scheduled to consider this year."

    "Patent Office chief Jon Dudas said Monday that federal law should be
  • Coming from a guy who works at a patent-focused company [intellectualventures.com].

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