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Cutting Through the Patent Thicket 122

Posted by Zonk from the use-a-big-blade dept.
xzvf writes wrote to mention a BusinessWeek article positing that the overgrowth of patents is harmful to innovation. From the article: "The first problem with patents is that the entire process takes too long: three years on average, often as long as five, and getting longer all the time. So when a venture capitalist invests in a company, its IP 'dowry' remains, at best, provisional. How much would you pay for a company when its assets are hidden from view?"
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Cutting Through the Patent Thicket More

Cutting Through the Patent Thicket

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  • And The Answer (Score:5, Funny)

    by MrNonchalant ( 767683 ) on Tuesday December 20, 2005 @03:25PM (#14302245)
    How much would you pay for a company when its assets are hidden from view?

    5 bucks and a bag of potato chips. Next question, please.
    • Too bad you were mod'ed "Troll". But your answer is absolutely correct. I've been working on some projcts that required the valuation of a business and their assets were hard if not impossible to verify. No deal. There's too much fraud, over stating, and incompetence to just judge the value by what is stated.
      • mod'ed
        What? Do you mean "modded"? If someone informs on you, would you say they'd rat'ed? What next - cricketers/baseball players having bat'ing averages?

        I don't know what crap meme will appear (or should that be ap'ear?) here next - probably hypehen doubling or something like that.

        • Re:And The Answer (Score:3, Informative)

          by jacksonj04 ( 800021 )
          Mod<erat>ed, so technically it's fine.
          • For one thing, it's pronounced with a short o as per the original word, but the abbreviation in standard English orthography implies a long one. Secondly, people are using this construction where it isn't an abbreviation. Thirdly, it's not even shorter than writing "modded", and requires an extra movement, so it's clearly a bulshit affectation.

      • Re:And The Answer (Score:5, Insightful)

        by yog ( 19073 ) on Tuesday December 20, 2005 @05:03PM (#14303450) Homepage Journal
        The U.S. patent system is seriously flawed. In my opinion, it's all these vague "business process" patents that have really screwed things up. They get hundreds of thousands of these applications per year clogging up the system, and the net result is that nothing gets done before at least three years, as the article points out.

        Even worse is that the business process patents make it nearly impossible to implement anything without violating someone's patent. I looked into patenting an invention that had to do with a linux-powered answering machine and soon discovered that almost everything you can imagine has been patented. Some guy got a patent for "compressing a voice recording". So do I have to ignore his patent and let him sue me, or send him money for something that's a questionable "innovation" at best? Perhaps megacorporations can afford this hassle but not that many individuals, I would think.

        The patent system was originally intended to encourage innovation by protecting people's rights to their inventions, and it has now been perverted into a thicket of pointless, indefensible rules that inventors must navigate to get a product out the door.

        Probably the solution is to tighten up the definition of an invention and, as so many in this forum and elsewhere have pointed out, invalidate software patents and business process patents. Even Congress is supposedly getting wind of the problem, but I'm not holding my breath until it's solved.
        • Good patents are good... but as TFA says, at least 80% of patents are worthless (too obvious or impractical) and 95% of them are never used - though I suspect these ratios are rising.

          I cannot remember ever reading a genuinely innovative and useful patent... all those I have read to date (mostly software and digital system stuff) were either 1) expensive practical jokes, 2) obvious, 3) excessively broad blankets obviously intended for patent warfare or 4) technically interesting but practically useless.

          The p
    • > How much would you pay for a company when its assets are hidden from view?

      5 bucks and a bag of potato chips. Next question, please.

      Sold!

  • You and the captain, make it happen. (Score:4, Funny)

    by joemawlma ( 897746 ) on Tuesday December 20, 2005 @03:26PM (#14302258)
    ..BusinessWeek article positing that the overgrowth of patents is harmful to innovation.

    I didn't know Captain Obvious worked for Businessweek.
    • "The first problem with getting your political and legal theory from traditional media is that the entire process takes too long: three years on average before they pick up a story, often as long as five, and getting longer all the time."
  • What about software patents? I thought we all loved those :-s

    oh riiiiight, we arent multibillionaire software tycoons. Oh well. God bless capitalism.
    • Just from reading his conclusion

      For instance, a group of patent lawyers might emerge who would represent such money-strapped individuals on a contingency basis. After all, the resulting patent would cut a clearing in the forest, where new economic growth could thrive.

      It's safe to say he's writing this solely from the perspective of a VC and doesn't really give a hoot about the lone inventor.

      Nobody who really cared about the little guy would propose throwing him to the wolves^H^H^H^H^H^Hlawyers

      • Lawyers can be good people, on occasion...

        I do agree that his reform sounds hard on the little guys. I'm not sure is actually any worse than the current system on them though, and there is a good chance it would be better. (They just don't bother with patents, secure in the knowledge that no one else's patent will cover their work.)

  • Better to take your time (Score:1, Insightful)

    by Anonymous Coward
    Several years is probably too much, it's true, but it's better than if patents was rushed without proper examination.

  • His 4th problem with patents (Score:5, Insightful)

    by TubeSteak ( 669689 ) on Tuesday December 20, 2005 @03:28PM (#14302284) Journal
    Fourth, and probably most important, few venture-capital-backed companies will ever dare to defend their IP in court. If they do, they'll risk losing customers and squandering anywhere from $1 million to $5 million of their precious venture funding.
    I wonder what he's basing this statement on.

    I mean... I guess it makes sense. But I don't see how
    defending patent = losing customers
    • I mean... I guess it makes sense. But I don't see how defending patent = losing customers

      I suggest you visit a nice Utah corp called SCO.. alright they have no patents.. imagine if they did..

      I think the main reason is that it takes the focus of the company's management off building products, selling/supporting them and puts it on lawsuits..

    • Re:His 4th problem with patents (Score:4, Interesting)

      by Jtheletter ( 686279 ) on Tuesday December 20, 2005 @03:59PM (#14302697)
      But I don't see how defending patent = losing customers

      Just like we saw when SCO started challenging Linux, many potential or current customers changed their plans to a different OS under possible threat of the court ruling in favor of SCO. Many geeks knew better and it seemed obvious from the start that SCO didn't have a leg to stand on, but that doesn't mean that the outcome was assured. New businesses, especially venture-funded startups, are delicate, and are basically long term bets made by investors. When patent litigation comes into the picture, it is a threat to that long-term bet that has to be balanced against all other parts of the system. Some customers and investors will have faith in their choice and stick with it, the more risk-averse will move their dollars elsewhere. Unless a legal challenge is so (excuse the pun) patently baseless, you're always going to lose some business when this new legal obstacle is introduced. And as the author points out, it is costly, and many times directly or indirectly such costs are passed on to the customers and/or investors. So while defending the patent is a good thing and should garner faith in the company for sticking to its guns, there is always the chance they will lose, which will drive off the more timid customers/investors.

      • And don't forget the other side; anyone considering buying the SCO product (other than certain companies with their own agenda) was also scared off because of the bad publicity.

        This has nothing to do with patents (SCO is claiming copyright infringement. Right?) but shows how going to court can effect your bottom line outside of any official judgments.

  • VC-Think (Score:5, Interesting)

    by Duncan3 ( 10537 ) on Tuesday December 20, 2005 @03:30PM (#14302334) Homepage
    In summary...

    Patents were great when I was an inventor or researcher. But now that I'm a VC whose job is to takeover companies and screw the inventors out of all the money, patents are a pain. They take too long which is slowing down my screwing, please speed things up...

    I think that cuts throught the BS and gets at what he means.

    • Re:VC-Think (Score:5, Interesting)

      by s20451 ( 410424 ) on Tuesday December 20, 2005 @03:50PM (#14302594) Journal
      Patents really *are* great if, like me, you are a researcher. Without them it would be nearly impossible for an independent inventor to get a product to market: either everything about your product would have to be secret (giving you a credibility problem), or you would risk that your product ideas would be stolen whenever you gave a sales pitch.

      I firmly believe that without patent protection, very little innovation would occur at startup companies -- which is a shame, because that is where much innovation and technological risk-taking occurs today.

      If anyone can come up with a solution other than patents that protects the small inventor against a big corporation, I'd like to hear it.

      • Use an NDA (Score:4, Interesting)

        by NigelJohnstone ( 242811 ) on Tuesday December 20, 2005 @04:59PM (#14303396)
        "Without them it would be nearly impossible for an independent inventor to get a product to market: either everything about your product would have to be secret (giving you a credibility problem), or you would risk that your product ideas would be stolen whenever you gave a sales pitch."

        One word: NDA. Give your sales pitch under an NDA. Better still, if its software you can just show the effects of the software without revealing the secret magic inside.

        Example, I'm writing a page ranking algo now. I think I have a better way to rank pages. I will explain on my blog the values it would assign to pages compared to Google PR. But I won't explain the algo because I want to use it. Either I'm a genius or an idiot, but you can tell that from the numbers the algo generates, without the need to explain how I do it.

        • Re:Use an NDA (Score:3, Insightful)

          by s20451 ( 410424 )
          Giving the sales pitch under an NDA does not protect you if the customer has the ability to develop the technology itself. For example, say you wanted to sell your page ranking algorithm to Google -- a patent would still protect you where the NDA didn't. Most tech startups only exist to sell solutions to large tech companies, so this is an important issue.

          And if you want your NDA to contain language that gave you the same protection as a patent, then why not go the whole way?

          • Re:Use an NDA (Score:3, Insightful)

            by NigelJohnstone ( 242811 )
            "And if you want your NDA to contain language that gave you the same protection as a patent, then why not go the whole way?"

            1. You license the patent to the company via a contract, so the whole way *is* the contract/NDA.
            2. You have the NDA *now*, you only *may* have the patent *later*.
            3. To patent you have to reveal the secret, not just to the company you want to license to, but all its competitors and foreign competitors too that aren't subject to the limits of the patent in your own country. NDA is better

            • To patent you have to reveal the secret, not just to the company you want to license to, but all its competitors and foreign competitors too that aren't subject to the limits of the patent in your own country.

              If you apply for a patent in the United States, Canada, Japan, and Europe (through the European Patent Office), then you have most of the developed world covered. Then you could have imports from a developing country such as China blocked at customs.

          • Giving the sales pitch under an NDA does not protect you if the customer has the ability to develop the technology itself.

            I just got a crazy idea here: perhaps there would be a market for "IP escrow" companies? You want to sell an idea to possibly sinister company A. You present your idea to a trusted company B which hires the best of experts. B tells A what they think your idea is worth, and how it may be applicable to A's business. If A isn't interested, they never get to see the idea. If they are, they

          • The page rank algorithm is worthless in your hands. If it was worth something you'd make a business out of it. Why should you be allowed to prevent people from independantly coming up with the algorithm and using it? Google is just more efficient than you. Welcome to the free market. Is the profit motive not enough for you?

            Most tech startups only exist to sell solutions to large tech companies, so this is an important issue.

            That might as well say: Most patent exploitation companies exist to exploit patents,

            • Your entire post confirms my point. Without patent protection, if my idea was "worth something", the big company would have no penalty for stealing my idea. Why should I bother spending the time to invent it in the first place, when it is ultimately worth nothing to me? Unlike a musician, I can't make money by giving my inventions away and inventing live in front of an audience.

              I reiterate: patents foster innovation by protecting the small inventors, who take the most risks. Most large companies like the

      • Patents are Bad (Score:4, Insightful)

        by dwandy ( 907337 ) on Tuesday December 20, 2005 @05:29PM (#14303747) Homepage Journal
        Patents *might* be great if you're a pure researcher who has absolutely no plan to ever use/sell/build outside of your laboratory.
        1. Even with a patent, you will need to go to court and defend it.
        2. Patents are relatively costly: only large companies with megabucks can afford more than a couple: certainly few basement inventors have a few ten/hundred thousand kicking around for legal.
        3. Patents and Non-Disclosure Agreements are not mutually exclusive. You can pitch your idea to people who have signed a specific agreement with you. Not having patents does not equate to an inability to obtain VC.

        An alterative to patents? How about nuthin'.
        Now, I know that on the surface you're not going to like that idea, but here's the deal:
        Lots of stuff got invented before patents ... so I see no reason why patents are or ever were needed to encourage invention.
        All new invention is based on something that existed before. There is nothing new on this planet, just variations, modifications, additions and combinations ... so as an inventor, you are reliant on the ability to re-use the ideas that came before yours: patents take away that ability. You can argue that it's temporarily - but let's face it: 20-yrs is 1/2 a (work) lifetime.
        Without patents, there are no patent lawyers - you save big on legal.
        Without patents, products could get to market 3-5yrs faster, providing revenue streams sooner.
        Without patents, consumers would be given more choice, as companies innovate continually to compete, not simply creating one new idea and profiting indefinately.
        Lastly, troll/predatory companies can't exist: they can not simply engage in blocking tactics with a legal construct.

        So, a world without patents would have an explosion of new ideas, run more efficiently, provide returns on investment sooner, and deliver new products to consumers faster and at a lower cost.

        • A world without patents may well see products make it faster to market, and would certainly incur fewer legal costs or patent portfolio companies. Your final sentence claiming a patentless utopia is entirely speculative (and furthermore, I disagree).

          But I think you have missed my main point, which is that patents protect small innovators from big companies. Say I come up with a great tech idea that could make a lot of money. What is to prevent a certain company in Redmond, WA from taking my idea and sque
          • "Say I come up with a great tech idea that could make a lot of money. What is to prevent a certain company in Redmond, WA from taking my idea and squeezing me out of the marketplace? At least with the patent, I have legal recourse. Even if I don't have enough money to litigate myself, I have leverage to offer contingency fees, etc."

            Nothing, but then you open a coffee shop in the high street, a major StarBucks opens next door, what is to stop them driving you out of the market? Welcome to the world, competit
            • Stealing an idea is not like other kinds of competition in the marketplace. To make your Starbucks analogy precise, suppose Starbucks opened a store across the street from mine, identical in every way, but with lower prices.

              Patentable ideas do not occur instantaneously. The first entrant inevitably invests time, and one year of the full-time attention of a few engineers is worth quite a bit.

              I should also point out that Google has a sizable portfolio of patents, which means two things: firstly, smart and s
              • I should also point out that Google has a sizable portfolio of patents, which means two things: firstly, smart and successful tech businessmen appreciate the value of patents; and secondly, in keeping with their corporate philosophy, Google does not believe software patents are evil.

                Patents are a necessary evil. If you have a patented product, and a big player wants it, they can get it. Either they will just copy it, and dare you to face their lawyers in court over the period of five years it will take t
              • You have made many good points in this discussion, but this isn't one of the best:

                I should also point out that Google has a sizable portfolio of patents, which means two things: firstly, smart and successful tech businessmen appreciate the value of patents; and secondly, in keeping with their corporate philosophy, Google does not believe software patents are evil.

                Let me illustrate why I don't agree with the reasoning using some search-and-replace:

                I should also point out that the USA has a sizable portfo

              • Stealing an idea is not like other kinds of competition in the marketplace.

                Nonsense. Businesses steal ideas all the time, everything from advertising ideas to cafe layouts. For example, look at all the McDonalds copycats. Businesses cannot rest on their laurels, they have to continuously reinvent. As long as competitors don't attempt to pretend to be the original it's legal. It's competition, it works.

                To make your Starbucks analogy precise, suppose Starbucks opened a store across the street from mine

                • False analogy. They couldn't because of trademark law. On the other hand they could easily open a store with their own spin on what they think the customer wants, including ideas from the original cafe if they think they might work.

                  Wrong. Trademarks are meant to protect product names and logos. It is trademarks that prevent me from making Loco-Cola with a very similar or exact style as Coca-Cola. Trademarks also become useless when the term because diluted or is accepted as a "industry standard" term
            • Here's a better analogy. You open the coffee shop. You spend years working on getting exactly the right blend, the right coarseness of grind, the right brewing technique. You produce a cup of coffee that is so good people choose to come to your shop for the high quality. One of these people is a Starbucks exec. He watches your process and writes it down. He contacts your suppliers, and buys all of the beans of the varieties you were using for the next five years. Suddenly every Starbucks is selling c
          • Patents are only a means. The ultimate end is better living. Scientific and technological advances have made our lives far better. Naturally we want a system that rewards people for advancing society. Capitalism is great for material goods, but the extension of property rights to ideas via the various intellectual property regimes has not worked very well.

            The author wants to reform the patent system, and only a little bit. I think the system is based on an idea that is fundamentally flawed. Much mor

        • Re:Patents are Bad (Score:3, Insightful)

          by dpreston ( 906415 )
          The reason patents were invented were for a simple reason: there's a positive externality associated with R+D. When a firm creates something, invents something, that firm cannot benefit completely from its investment and effort (reverse engineering, blantant stealing, whatever). That's why there are patents. It allows firms to profit off their inventions, so all that time doesn't go to waste. And yes - in a utopian society, we would all work towards the greater good and be productive for the fellow man...bu
          • But where did this idea come from that the inventor has exclusive right to "benefit completely from its investment and effort"? I'm comparing this to deregulation. Regulation fixes prices at artifically high levels, increases cost of business (compliance), and more.

            Let's compare to patents:
            - fixes prices (corp partnerships and duopolies collude)
            - increases costs of doing business (legal, licensing)
            - Plus, it allows monopolies to form

            I don't see any positives. But I'm not a reserach scientist Why do rese
            • I'm not an expert at all either -- my previous comment was based on basic economics. To be completely honest, I morally/theoretically agree 100% with what you said. The only thing is, I don't see it being realistic. Granted, there are plenty of scientists and engineers out there who aren't in it for the money, and most likely they are the most brilliant (think: Newton, Einstein, etc.). But, patents won't stop them from disclosing the ideas anyway, they still have the right to release it.

              The issue, in my o
              • So take the pharma example, I would think that's even more straightforward. The company owns the idea (this of course could vary by contract with the employer/funder), and the company doesn't have to release the findings at all. Or, for goodwill, they might do so after a certain period of time.
        • Lots of stuff got invented before patents ... so I see no reason why patents are or ever were needed to encourage invention.

          Dear god, I hope you're joking. The rate of innovation and invention has increased exponentially over the past 150 years, and a good part of that is because now you're assured at least a shot at marketing your idea before someone sees you and copies you exactly. The incentive for full time invention is there.

          Without patents, we wouldn't have the light bulb, the telephone, the computer

          • Lots of stuff got invented before patents ... so I see no reason why patents are or ever were needed to encourage invention.

            Dear god, I hope you're joking. The rate of innovation and invention has increased exponentially over the past 150 years, and a good part of that is because now you're assured at least a shot at marketing your idea before someone sees you and copies you exactly. The incentive for full time invention is there.

            There's many different incentives apart from patents, everything from

            • You pretty much had my exact response up to this line:

              I've yet to see any significant evidence justifying this massive interference by the government in the citizen's business. I would actually support patents in limited areas of technology if there were evidence of long term public benefit.

              I'm curious:

              • How would you define "long term public benefit"? imho, public benefit (forget long-term) is rarely seen by anyone - just look at the poor fiscal and envornmental decisions made daily by our leaders of
          • Without patents, we wouldn't have the light bulb, the telephone, the computer (transistors were a patented invention) or pretty much anything that anyone ever sunk R&D money into.

            Bunk! Utter Hogwash! If something is useful, then someone somewhere will invent it. Elisha Grey also developed a telephone. Actually the first telephone was invented by an Italian by the name of Meucci. Morse didn't invent the telegraph. Edison didn't invent the light bulb. Innovation isn't made by patent, fortunes

      • Re:VC-Think (Score:1, Insightful)

        by Anonymous Coward
        Ask any major company (Like 3M) to sign a NDA and they will refuse. By their logic, they are so big, that someone within the company has done work similar to yours. If they sign the NDA, they will give up the rights to that work...

      • Patents really *are* great if, like me, you are a researcher.

        A matter of opinion. This implies your research inputs are patented as well and the free exchange of ideas that is critical to good research is stifled, despite what patent boosters like to naively claim.

        Without them it would be nearly impossible for an independent inventor to get a product to market:

        Depends on the product. Depends on the idea. Businesses start up all the time that aren't protected in any way by patents and they do just

        • This implies your research inputs are patented as well and the free exchange of ideas that is critical to good research is stifled, despite what patent boosters like to naively claim.

          How does a patent stifle a free exchange of ideas? The patent documents are open and available for anyone who wants to read them. Without patents, information also has value in its secrecy. If I am not protected when I disclose my invention, there is nothing preventing me from keeping it partially (or wholly) secret -- in fa

  • Greg Blonder is suspicious (Score:4, Funny)

    by Rosco P. Coltrane ( 209368 ) on Tuesday December 20, 2005 @03:31PM (#14302354)
    As a teenager, I sat raptly in the U.S. Supreme Court gallery listening to attorneys argue University of Illinois Foundation v. Blonder Tongue Laboratories, a landmark patent-infringement case

    you listened to rapty to attorneys in your teenage years? this guy's a sicko, I was doing plenty of strange new things as a teen, including things involving my left hand, then girls (in that order), and also things involving dried fauna and cigarette paper, but certainly not listening raptly to attorneys. Sheesh...

  • It did not !!! (Score:4, Interesting)

    by Anonymous Coward on Tuesday December 20, 2005 @03:32PM (#14302358)

    For over 200 years, the U.S. patent system has catalyzed economic growth ...


    It did not, correct statement would be: for over 200 year innovation was able to overcome rotten patent law, but it finally approaches a dead end.

    Consider this troll, but the only good that patent system does it makes investment, for those who have money, more appealing, than just sitting on the pile of cache (I would think there are better ways of achieving that ..).
    It does not protect the small guy, as it promises. Nowadays, small guy virtually has no chance of success, because of large corporations patenting everything left and right.

  • When Is Somebody Going To... (Score:3, Interesting)

    by dch24 ( 904899 ) on Tuesday December 20, 2005 @03:35PM (#14302405) Journal
    When is somebody going to clear up the difference between hardware patents and software patents? Sure, it's a tricky issue with FPGA's on the one side and Flash BIOS on the other, but am I infringing on a patent when I write free software? Isn't the patent supposed to protect the initial investment of the guy who designed the widget -- but only for about seven years (that's for hardware; it's different for software) -- and then ultimately, the patent process is supposed to open up the idea for anyone to see at that point.

    From the article:

    I say this as someone who grew up believing in the value of patents. As a teenager, I sat raptly in the U.S. Supreme Court gallery listening to attorneys argue University of Illinois Foundation v. Blonder Tongue Laboratories, a landmark patent-infringement case involving my father's company. As an inventor, I earned some 70 patents. And as a scientist, I managed research labs generating hundreds of patents a year.

    But now, as a venture capitalist, I have come to the conclusion that protecting intellectual property (IP) with today's patents is virtually worthless -- despite the large court awards you may read about in the morning paper.

    • At the moment, there is no difference between hardware and software patents. Your code can be infringing even if it's free. And the patent publically publishes 18 months after application, usually well before issuing. Patents are in force for 20 years from date of application. Don't know where you got 7 years dude.
  • Perhaps one reason why "obvious" patents sometimes get granted is simple inability by those deciding which patents to let through to judge whether something is obvious. Chances are, they will not have much advanced knowledge in all the thousands of topics on which patents are made, and considering just how many requests they receive, it would be very difficult to consult an expert, and even more so to find such an expert who had no interest in seeking a patent himself. Besides, people reviewing patent reque
  • Clearly he could much more easily screw the company's founders if it wasn't for those blasted patents they had already filed.

  • The most significant bit of the article (Score:5, Insightful)

    by dillon_rinker ( 17944 ) on Tuesday December 20, 2005 @03:45PM (#14302546) Homepage
    Frmo the article:

    "While at AT&T (T) in the early 1990s, I sponsored two separate ideation sessions around a potential new market, bringing in 50 experts each time to brainstorm for applications. Both groups generated ideas with real commercial value.

    Both groups, however, generated more than 95% of the same ideas in common. They were "obvious" in the fullest sense of the word and would have been commercialized with or without the incentive of a patent. But the Patent Office found them "novel," and issued AT&T claims by the basketful."


    This, in a nutshell, is everything that is wrong with the patent office. Most patents granted are NOT non-obvious. I would suggest that what the patent office needs is a peer-review process.
    • From the article:
      "We need to invent ourselves out of this mess."
      I already did, but someone is sitting on the patent.

    • Re:The most significant bit of the article (Score:4, Insightful)

      by Hektor_Troy ( 262592 ) on Tuesday December 20, 2005 @04:27PM (#14303056)
      Ah, yes. Peer review of patens. Brilliant idea - I can just see how it'll be peer reviewed in big coorporations:

      Step 1:
      Any patent application which has ideas that we could use ourselves are to be stamped "obvious".
      Step 2:
      Make sure non of our ideas are submitted for patenting.

      I'm currently in the process of finishing up the business plan for a start-up company, so we can get the funding needed from VCs. While looking through possible patents, I decided it'd be obvious to start with the biggest competitor on the market - and lo and behold, they have patents on their stuff. Rather obvious they'd have that.

      However, some of the things they've patented are things that I came up with, on my own, in less than five minutes of thinking about the problem. Considering that these are problems way outside my domain of expertise (mechanical engineering vs software), I would argue that the patents aren't non-obvious. IOW, if I was peer reviewing these patents, many of them would be marked as obvious and not patentable.

      BUT - I also have a clear interest in having these patents voided, because they cover methods that I consider to be ideal for the job. I have a financial interest in their dismissal. Personally I'm the kind of person who likes to reward where reward is due, so I'm not likely to dismiss a patent on personal grounds, but people like me are very rare indeed.

      Obviously you wouldn't have software developers peer review patents on mechanical things, but chances are that if Company A works in Field X, they have the expertise needed to peer review Field X, but also a vested interest in everything in Field X. Developer B would be hard pressed to get his Patent P through peer review in Field X, when Company A wants to get as many breaks as they can.

      • Re:The most significant bit of the article (Score:4, Insightful)

        by GigsVT ( 208848 ) * on Tuesday December 20, 2005 @06:19PM (#14304281) Journal
        That's easy to prevent.

        The review process shouldn't disclose the patent at first. It should disclose the problem the patent solves.

        Then challenge a some people well versed in the field to come up with realistic solutions to the problem.

        If one of their solutions is very much like the patent being applied for, then deny the patent.

        This isn't rocket science.

  • The problem isn't the speed of patent filings.... (Score:5, Informative)

    by 8127972 ( 73495 ) on Tuesday December 20, 2005 @03:47PM (#14302567)
    ..... It's also what is allowed to get patented. Consider the whole NTP/RIM debacle. NTP is holding RIM hostage with some (at best) weak patents that exist because someone is allowed to file them. While it is true that their patents are being shot down one after the other, it should never have gotten this far. Clean that up and I think you'll see the question posed by Newsweek become a non-issue.

  • False premise (Score:4, Insightful)

    by Anonymous Coward on Tuesday December 20, 2005 @03:53PM (#14302638)
    For over 200 years, the U.S. patent system has catalyzed economic growth and protected the national interest.

    Bovine excrement! This is a fallacy, it can neither be proven or disproven. Repeat after me; "patents are not a metric for innovation".

  • Idea (Score:4, Interesting)

    by RyoShin ( 610051 ) <tukaro AT gmail DOT com> on Tuesday December 20, 2005 @03:54PM (#14302649) Homepage Journal
    I'm not sure how the patent office works now, but here's how I would envision a good patent office:

    First, to receive a patent, you have to have a working model that can be shown on demand. Otherwise, we'll keep going on this new path of people patenting something without actually producing anything.

    Second, all patents submitted will be checked over by a "Tier 1" employee. The "Tier 1" employees wouldn't have to have vast educational backgrounds; in fact, most would probably be college students working part time. These people would check over the forms and accounts, making sure that all paperwork is properly submitted, legible, and the required amount of money has been paid. If not, they send it back out to be redone.

    After Tier 1 has approved a patent for review, it moves on to one of what would be many sections of "Tier 2". The sections would be divided according to industry (automotive, computer (hardware), computer (software), household, argiculture, etc.) and would be headed by those deeply educated in the field, and staffed by those not as educated, but who still have a firm understanding of the subject. An employee in this section would be given just the patent itself and a Potential Patent ID (PPID), and nothing else, to remove both any relationship they may have with the submitter and so they have less bullshit to worry about.

    After examining the patent, they will do some quick searches to see if anything similar has been submitted. They won't check entire patent sheets, just the synopsi. If they appear to be the same, the patent would be marked as a potential copy, with the patent already on file that seems to match, and passed along to another section (Tier 2.5), who's only job is to compare the patents and find duplicates. That section would employ those with general educations (jack of all trades, king of none) who would inquire to the original section if they have any questions.

    If the patent has no apparent relation to anything else, the regular Tier 2 staff can either accept or require a demonstration, if they thought it was total bubkiss. The patent seeker would have to come in with (or alternatively help arrange to have one of the employees come out to) the device and show that it works, after which it would be accepted.

    If it's decided that patent isn't a reproduction, or Tier 2 accepted the patent, the patent would go through final processing (Tier 3), which would double check that everything has been filed and verified, and then grant the patent.

    Tier 3 would also handle disputes. They would read over claims, do some basic research, and pass the claims on to Tier 2 for extended review. Tier 3 could also have the option to "contract" educated individuals in the related field to review the patent (used mainly when the section for that industry has a large influx of patents to review.)

    Actually, hold off on that first part so I can do a vague patent for anti-gravity or warp drive or something.
    • With our luck, the Slashdot editors would handle the Tier 2.5 sections.

    • Re:Idea (Score:2, Insightful)

      by russ1337 ( 938915 )
      I like your idea.
      Its simple, logical and fair; and they are the three reasons why your structure will be difficult to implement in a bureaucratic world. Also, it is very difficult to take a complex system and make it more simple - (Ever increasing entropy).
      Step one is the big step in the right direction.
    • The problem with the first part (patents only granted to working models) is that then small inventors won't be able to market their original invention ideas that need big capital to implement. A previous post from an alleged researcher explains this problem in detail.
    • This is a nice idea, but I think there would still be problems....

      One thing grad school in ECE is teaching me is that I know and understand very little (compared to how much exists in just that field)... When I attend the huge conferences, I am somewhat familiar with the works presented, but I no capability to fully *understand* their proofs, fully understand their methods (get at their heart), or even compare how novel their approach is compared to existing ones... (At least none of this without **a
  • The term "Patent Trolls" ,from the article, is highly inflammatory and counter productive to the argument. These "Trolls" are simply reallocating the risk associated with introducing a new invention to the market. Instead of the single/small inventor bearing the burden of introducing the product to market, the investors share the burden amongst many who are willing to accept the risk. This financial support of the inventor fulfills the purpose and policy of a patent law, namely to "promote the progress o

    • Re:Another foul use of the word "troll" (Score:4, Insightful)

      by nhnfreespirit ( 809462 ) on Tuesday December 20, 2005 @04:29PM (#14303076) Journal
      Except thats not what is happening... What is ususally labeled a patent troll, is someone who buys up patents with no intention of ever doing anything with the invention covered. The simply sit on the patent until someone invents (and markets and promotes) something (often only vaguely) simmilar and then they sue them. This is basically what is happening in the NTP vs. RIM case. NTP has never used these patens to create a product or invest the money the poor inventor lacked to commercialize his idea. This is a parasitic behaviour at best.
      • NTP is being portrayed as the bad guy in this situation (and they very well might be). No one is reporting the number of companies that NTP approached regarding licensing the technology. Who knows how many companies looked at the technology covered and decided that they could improve upon it. Instead, it is simply reported that NTP is stalking a company that has produced a product that is profitable. And whether or not it was NTP that sued RIM for allegedly infringing the contested patents, or the origi
      • Is there really no remedy for someone to take who invents something only to have someone who hasn't produced anything with a patent sue them? I would think we'd only issue patents to people who have actually got a working prototype of something.
    • "These "Trolls" are simply reallocating the risk associated with introducing a new invention to the market."

      But a patent troll doesn't make the *thing*, he just makes the patent. The only risk he has is the patent fee. The last thing any of them want to do is risk the cost of actually making something, at best because then you can see their invention and its no longer vague lawyer words in a document. At worst because the invention can't work.

      "promote the progress of science and useful arts."
      Only if patent

  • Poor article (Score:5, Interesting)

    by jbeaupre ( 752124 ) on Tuesday December 20, 2005 @04:06PM (#14302798)
    After reading the article, I have to say the author has a poor grasp of patents. Yes, he has 70, but by his own admission they were trivial. He's also using terminology loosely. Do numerous patents get granted for trivial stuff? Yes. But the patent office has never been given a narrow definition of novel and non-obvious. Not their fault, talk to congress and the SCOTUS about that.

    As far as only granting broad patents, those can be just as trivial as narrow. A broad patent may not have enough details worked out to be useful. I think he was trying to say that only economically important or scientific breakthroughs should be granted patents, everthing else being narrow. Nice idea, but it only works with 20/20 hind sight. Some times it's the guy, 30 years after the first broad patent is filed, that figures out the critical specification to make the whole thing work.

    As far as his comments about venture capitalists, so what? If they aren't bright enough to figure out good technology from bad, good patents from bad, that's their own fault. Making it easier for the dumbs ones to become rich isn't very motivating.

    So all the article ends up being is the random musings from someone ill informed. Fix the system if you must, but don't listen to this guy.

    • Re:Poor article (Score:3, Insightful)

      by burnin1965 ( 535071 )

      Some times it's the guy, 30 years after the first broad patent is filed, that figures out the critical specification to make the whole thing work.

      In that case the patent should not have been approved until the "critical specification" was resolved.

      From http://www.uspto.gov/web/offices/pac/doc/general/i ndex.html#whatpat [uspto.gov]

      '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 perfor

      • Let me expand a bit on the 30 years bit. I took a verbal shortcut by saying "work." I meant be successful. The original idea may work, but not well enough to be widely useful. Take DNA sequencing. It's been possible for decades and I'd be surprised if it wasn't patented. Great breakthrough. Revolutionary. But it was slow and impractical. Then comes PCR. Same technique, but tweaks the process in a way that makes it vastly more practical. So which do you allow? The original invention, which worked
        • Don't get me wrong, I do not disagree or dispute much of your opinion or analysis of the article, but I think the patent office needs to be strict on certain aspects of patentablility requirements, one of them being useful/operative/working inventions. While I agree with your concern over determining patentability based on the breadth of the patent filed I believe the invention absolutely MUST pass the operative test or should be rejected. I don't care if it takes 5, 10, 30, or a thousand years. By lowering
          • Thanks for the details on the Pavel patent. I was too lazy to check into it. Yeah, that sort of patent irritates me as well. Now I understand where you were coming from. We used to run into that problem with doctors giving suggestions. They'd tell us they wanted something to do X faster. If we came up with a product that did X faster, they would insist it was their idea and should get royalties. Sorry, but expressing a need is not the same as meeting that need. Sounds like Pavel did the same thing.

  • One reason for the current state... (Score:5, Insightful)

    by mavenguy ( 126559 ) on Tuesday December 20, 2005 @05:01PM (#14303426)
    ...of the US patent system concerns the issue of obviousness, and is illustrated by the following quote from TFA:


    And much of what the Patent Office sees as invention is merely science applied to a new field by equation or analogy. At AT&T, we took old microwave patents and filed identical claims on optical inventions, which are also radio waves, only 10,000 times smaller. We were able to do this even though it was obvious to anyone who ever picked up a physics textbook that once you have the ability to make things smaller, the physics just translates over.


    When I started in the Patent Office (This is before it was renamed Patent and Trademark Office), it was common to use this kind of reasoning to make rejections, and you would be sustained if challenged, because this was the "accepted" view by the Board of Appeals and the Court of Customs and Patent Appeals, the judicial appellate court from the Board, at the time (since then merged into the extant Court of Appeals for the Federal Circuit, who follows the CCPA law). Examiners were accorded great respect in making obviousness judgements and in dicussing the prior art references.

    But, about the same time, the patent bar started to become more aggressive in challenging these rejections, demanding that the cited prior art show, or, to use current terminology, "suggest" reasons why the cited prior art references "would" be combined. Say, hypothetically, the applicant claimed a light source, a mirror at 45 deg to deflect the beam 90 deg, a modulator modulating the deflected light beam, and a detector to, well, detect the deflected, modulated beam. Now consider some prior art: Firstly, a light source producing a beam going directly to a modulator, thence to a detector and, secondly, a reference showing a mocrowave source sending microwaves to a microwave reflector, followed by a microwave modulator, that then followed by a microwave detector. In the old days you could combine the two references in an obviousness rejection and, for the applicant to overcome the rejection (beyond adding significant limitations to the claim(s)) he would have to provide some convincing argument, perhaps supported by evidence supported by a "132" oath/affidavit, showing why such a derect analogy was incorrect. But this is no longer true; now the burden is on the examiner to provide prior art that specifically shows that optical and microwave elements can have similar designs. Of course, any such reference, if not exactly showing the source, reflector, modulator, detector combination would be attacked as not applicable to that combinatio; of course, if you had such a reference, you'd have an anticipating prior art and would make the stronger "102" rejection in the first place ("anticipation is the epitome of obviousness")

    So, why the change? The answer is, basically, the CCPA and its successor, the CAFC. Attorneys kept appealing and winning reversals, and the Court opinions in those cases clearly kept raising the bar on making obviousness rejections. It's not something that, on the surface, is very stark, but it has greatly increased the burden to make each rejection. Now you might have to search twice (yeah, pulled out my butt but probably in the ballpark) as long, even with modern online search technology, to get the prior art needed to support the rejection. Furthermore, you might not find just the exact "teaching" reference to put you over. The result is claims, and applications, go to allowance that would have never made it under the environment that existed years ago. Couple this with extreme PHB management culture that has developed over the past 30+ years and you have the current mess. And, due to the explosion of filings in recent years, even though the examining corps has increased by a factor of 4 or 5 since around 1980 there is still a 3 year pendency in many arts, yet examiners have even less time, due to lots of tasks, many having no positive impact on examination, heaped on top of them, and the fact that the average time allotted to examine an applcation, has not changed since Commissioner C. Marshall Dann gave a whopping one additional hour per application back in the 1970s.

    • Recently (Score:5, Informative)

      by Ogemaniac ( 841129 ) on Tuesday December 20, 2005 @06:46PM (#14304538)
      I attended a seminar on patent protection in my field (chemistry). Most of the speakers were patent attorneys. Basically, the overall theme of their presentations was "we can help you hoodwink the patent examiners", basically by flinging lots of overly-broad @#$# against the wall and hoping the over-burdened examiner lets some stick.

      While patents are probably a necessary evil, the system does need to be reformed, and far fewer patents need to be granted.

  • The original intent of patents was to get companies to reveal their trade secrets in exchange for a limited monopoly. Like everything in business it is a trade, in this case between the inventor and the people. The inventor recieves the limited monopoly, and the people get detailed instructions on how to reproduce the invention in exchange. If the invention is trivial then the people do not get a fair trade, the monopoly is effectively givenaway for nothing. It seems obvious that for something to be patenta

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