MSM Noticing That Patent Gridlock Stunts Innovation 233
trichard tips a column on the editorial page at that most traditional of mainstream media, the Wall Street Journal, arguing the point (obvious to this community for a decade) that the US patent system costs more than the value it delivers. The columnist is L. Gordon Crovitz and here is an excerpt: "New drugs require great specificity to earn a patent, whereas patents are often granted to broad, thus vague, innovations in software, communications, and other technologies. Ironically, the aggregate value of these technology patents is then wiped out through litigation costs. Our patent system [is] a disincentive at a time when we expect software and other technology companies to be the growth engine of the economy. Imagine how much more productive our information-driven economy would be if the patent system lived up to the intention of the Founders, by encouraging progress instead of suppressing it."
ORLY? (Score:5, Insightful)
we-could-have-told-you-and-did dept is right
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we-could-have-told-you-and-did dept is right
Most insightful comment ever :-)
Patents generate great value (Score:5, Insightful)
The patent system is run by the USPTO + lawyers primarily for their benefit. They control it and their "experts" will drive any future changes in patent processes. From their perspective it is generating great value and there is very little motivation for change.
USPTO generates a healthy profit for Uncle Sam too. USPTO makes the same on a low quality or a high quality patent. All that matters is volume. Therefore the system favors cranking out many low quality paptents.
Cranking out patents generates good income for lawyers too. But the real money comes in when a patent is contested. This happens mostly when the patents are low quaility. Therefore patent lawyers score more out of low quality patents than high quality patents.
Therefore the whole system is set up to provide better revenue by generating many crap patents. Don't expect the system to change any time soon!
Re:Patents generate great value (Score:5, Insightful)
Internationally, the number of patents issued in a country is often cited as a proxy for Innovation.
Thus there are even political reasons to keep issuing patents to ideas - it means that the US is praised as the most "innovative" country on Earth since more patents are issued in the US than anywhere else.
Re:Patents generate great value (Score:5, Informative)
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IIRC there were transistor radios made which had transistors which were not electrically connected. Because the number of components was seen as a metric of how good the radio was. This seems an even better analogy with the USPO.
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Given these above issues about the people who run the patent system, it points towards a trend, especially when combined with a thought I posted a while ago, which is...
"as we live in a world where some people are determined to control others, then everyone else has no choice. Unfortunately a minority of people, seek power o
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"we live in a world where some people are determined to control others, then everyone else has no choice. Unfortunately a minority of people, seek power over others and they are obsessed with finding new ways to control other people (for their own gain), but what they fail to realize, is their acts of control create a pressure for change away from their control. The power seekers throughout history have tried to create a bias in their favor, but it never lasts."
Plutocrats are pitiful faux-prophets (or is that for profit) politicians (not civil servants), corporatist (not capitalist), clergy (not local clerics), aristocrats (not mentally and emotionally healthy people) ... we know them by their reach for what is not theirs and by many name titles and names.
All plutocrats are scurrilous sycophants seeking slavery and subjugation of others by usury, dejure, and/or dogma, because as people they are without human values/honor. All pluto
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That would be a pretty silly metric, since in any country - including the U.S. - many (most?) patent applicants are foreign companies.
The rate of patenting in a country is a good measure of the strength of a country's economy, since it relates to the interest of companies in selling their products there. But the USPTO has no control over the strength of the economy - no one will praise a patent office fo
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I think you don't understand the word 'proxy' as it's used in that sentence.
"Proxy" can mean an agent - one who speaks on behalf of another. An executor of a will is a proxy for the deceased.
Based on your acerbic comment, I presume that you're reading "proxy" as "substitute." That's fine, and I could address that sentiment. But you're mis-addressing your vitriol, because the original post was ambiguous. (In fact, it's not even clear which way the original poster intended that comment.)
- David Stein
Re:Patents generate great value (Score:5, Insightful)
To my understanding, the USPTO is entirely aware and quite unhappy with the recent turn of events. For better or worse, it does not have much influence over how the system works, leaving the decisions to the political machinations of others-- ostensibly, well-funded lobbiers and greedy legislators. And the latter hold most of the blame.
You see, the USPTO used to be funded out of the general coffers, leaving the patent fees as a nice little christmas bonus that served mostly to keep people from wasting the PTO's time. Then, our legislators decided that it would make better fiscal sense to let the fees fuel the Office itself rather than shuffling things back and forth. But wait, there's more! The PTO only gets to charge the legislature-set rates, and then its coffers get raided for 10% of their earnings. So now the patent system gets screwed up because our Beloved Congressmen figured out a way to make a bit of money off the deal.
Thus, the PTO has to float itself off of fees-- but can't set the fees to costs, or even hold on to all the money once they've received it. This is why they have to work on a strict quota system; there's no space to make allowances for things like, say, the size of the patent application. A 20-page peanut de-sheller gets the same time as a 200-page biofuels refinery.
Oh, and if the party trying to get the patent appeals a decision? (implicitly, a negative one) That time doesn't get added to the quota. See the problem now? When they have to figure out some giant software patent (or other useless/obvious/previously designed idea), turning it down creates more work that they don't have time for. So the examiners don't have time relative to the size of the claim, nor do they get time allocated for them to go through and fight the appeal when they turn it down. The system naturally leads to allowing exactly the outcome seen here; the Office itself has merely responded to outside pressures and control.
So, if there's anybody who's been most directly screwed with the patent system, it's the PTO (and its stalwart examiners). And it's our fault, because the fundamental, systematic problems came because of greedy, reprehensible legislators riding high on massive voter apathy.
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In that way they would be more careful to grant bad patents.
Re:Patents generate great value (Score:5, Informative)
While you make some good points I must comment on some of them to give some perspective from my view as a former patent examiner who started back in the 1970s and, after a hiatus, is back on the "other side" as a patent agent.
The essence of my complaint with your comment is the tone that posits the poor, poor PTO against the greedy and corrupt politicians and applicants. While I agree that, at least as that applies thoroughly to the politicians there is plenty of blame to laid at the feet of the self perpetuating PTO management, the so-called permanent bureaucracy, who survive and select their successors from political administration to political adminstration, from Congress to Congress.
The production system, set up in 1960s as "goals" and given real teeth with the introduction of the Performance Appraisal Plan formulated in response to Carter's Civil Service Reform effort assigns an average "expectancy" in each art area against which examiners are measured (anything less than 90% is unsatisfactory; falling below that generates first an oral warning to get it above by three months; failing that a written warning with another thre months; failing that, being fired) the achievement is an average; examiners are not measured on an individual application basis, so an examiner is free to allocate his/her production requirment as he/she sees fit. Obviously if more time is spent on more difficult cases, less time must be spent on other cases, simple or not. Examiners get credit toward their production for each first action on the merits (FOAMs) and each action in the nature of a disposal (allowance, abandonment, examiner's answer for an appeal). Examiner's can write off some time for specified tasks, but all remaining time is "examining time") and is figured in calculating production. And, if the applicant appeals, the examiner writes an examiner's answer to the applciant's appeal brief and gets a disposal count. The case goes up to the board and returns after decision; if reversed or affirmed in part the examiner passed the case to issue but gets no further count; if affirmed it just gets noted and sent to abandoned files (court appeal is possible but that is very rare).
Because measuring things like search adequacy, rejection/allowance judgement are somewhat subjective but metrics sucha s production, workflow standards are objective and that meeting or exceeding the latter contribute to the "good" of reduced pendency management of the patent examining corps has be, at a fundamental level, been based on these metrics. Any issues with quality primarily arise from outside pressure, which management responds with all kinds of initiatives such as "quality review" or "second pair of eyes" but nothing to do with really improving search effectiveness or giving more average time pre case so that the best prior art is likely to have been developed in most of the applications.
Currently outside quality criticism (cat pointer, swinging on swing) have lead to a reject,reject, reject mantra, which has had the effect of lots of crap rejections being cranked out; lots of cases have been pending even longer because lots of non-final rejections comming from newbies who are not finding good art and just keep sending out easily refuted rejections after being goaded by supervisors to get better art and to keep making new (yet still junk) rejections. Management is in a trap of their own making from decades ago and now they can't even dig themselves out of it despite an unprecedented hiring orgy which scoops up lots of low production newbies, many of whom don't last more than two or three years. And, in any case, most managers doen't realize this, and just insist that examiners are lazy, incompetant dolts who (with the rare exception of those promoted into management) can't meet their simple, common-sense demand to just crank out thoroughly search and argued actions in the time allotted, preferably less so as to reach the Office goals for reducing pendency. Although all top civil service managers came from the examanin
Re:Patents generate great value (Score:4, Insightful)
The essence of my complaint with your comment is the tone that posits the poor, poor PTO against the greedy and corrupt politicians and applicants.
Yep, that's a common misconception that warps many arguments about the USPTO (here on /., in Congress, and everywhere in between.)
The USPTO is not supposed to be the opponent of the applicant that issues patents only when it is defeated. It is not supposed to be a stopgap, or a dam regulating the rate of innovation.
Rather, the USPTO is supposed to be an impartial body that researches the technology, compares the invention to the prior art, and reaches the right conclusion about whether the application should be issued. Correctly issuing a patent should be just as joyous an occasion for the USPTO as correctly denying a patent.
Unfortunately, many forget that this is its role. These days, that includes USPTO management, which loudly and often proclaims its goal of raising its rates of rejection. Its efforts these days are mostly about giving examiners more power to reject applications, and throwing more arbitrary obstacles in the path of applicants.
Criminal prosecutors are tasked with proving the occurrence of crimes - NOT with increasing the number of people sitting in jail. Those are two very different goals, right? Same with the USPTO... it's lost its focus.
- David Stein
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that includes USPTO management, which loudly and often proclaims its goal of raising its rates of rejection.
That's what they should do. There has never been a valid patent granted, and there never will be. Raise those rejection rates to as close to as 100% as possible. Raise the fees, dramatically, like adding two zeros to them, to decrease the number of applications. Double the fees each time an additional patent is applied for by the same corporate group in the same year ($100,000, $200,000, $400,000 ...)
You'll never look like a fool rejecting any patent (just like business managers and mutual fund managers chi
Re:Patents generate great value (Score:4, Insightful)
It has lots of influence over how the system works - it is the system. There are only three restraining forces on the PTO:
1) Budget constraints (I'll get to this point in a minute);
2) The limitations of its role as an administrative agency (its rules have to be administrative, because substantive rule changes [like "this general class of inventions is or isn't patentable"] are the jurisdiction of Congress); and
3) The text of the law, including the U.S. Constitution, and the international treaties signed by Congress.
There's a whole lot of freedom inside these boundaries. The USPTO has almost complete control over *how* the system runs, even if it can't arbitrarily decide *what* it's supposed to accomplish.
The PTO only gets to charge the legislature-set rates, and then its coffers get raided for 10% of their earnings.
Your information is out of date. Fee diversion at the USPTO has been brought to an end over the last four years.
This is why they have to work on a strict quota system; there's no space to make allowances for things like, say, the size of the patent application.
This is a serious problem - one of many arising from the asinine productivity requirements set for examiners by USPTO management. There are MANY problems with that system... but the effects are sufficiently downstream that blame can (and usually is) shifted to applicants, Congress, blah blah blah.
The system naturally leads to allowing exactly the outcome seen here; the Office itself has merely responded to outside pressures and control.
Which outcome do you mean? Yes, the examiner is being time-constrained from a more effective examination (by the PTO's productivity rules.) But examiners are ALSO being pressured by their supervisors ("SPEs") from issuing these applications - particularly in some groups (*cough* software.)
The result is churn: applications that are kicked around from examiner to examiner, where no one can come up with an effective basis for rejection but no one is allowed to issue it. Churn is bad for *everyone* - the applicant, the examiners, the USPTO, and the industry in general. And there's a whole lot of churn at the USPTO.
And it's our fault, because the fundamental, systematic problems came because of greedy, reprehensible legislators riding high on massive voter apathy.
Sad... your post was otherwise sound and logical... did you *have* to cap it with this bit of pandering to the /. crowd?
Congress has almost nothing to do with the state of the USPTO. They rarely amend the patent act, and when they do, it's with small changes. Several "patent reform acts" (of varying quality, but all under-informed) have been kicked around within Congressional subcommittees, but none has received traction. And the one area that Congress controls - budgeting - has been resolved in the USPTO's favor.
The *real* source of the problem is a long chain of ineffective PTO management. People get appointed to manage the PTO not through experience or leadership potential, but as a political favor. If you want to blame a branch of the federal government for that... then how about the one that does the appointing? (hint: it's not Congress.)
- David Stein
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Just ask the USPTO and patent lawyers!
*sigh* Any post that begins by conflating the interests of the USPTO and patent lawyers - two completely different groups with orthogonal goals - is difficult to take seriously. But looking past that...
The patent system is run by the USPTO + lawyers primarily for their benefit.
No one at the USPTO is getting rich off of the patent system. It's an administrative agency that sits there and fulfills a task. Government salaries suck with comparison to the public sector.
Um,
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How so? Don't they both (directly or indirectly) make more money the more ptents are granted?
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What the hell is a paptent? Is it related to a puptent? Or is it more like a papsmear? :)
Seriously, though, the USPTO is not a profit generator. We spend around 1.7 Billion a year to fund the USPTO... although patent (and trademark especially) fees help offset some of the cost of running the USP
Intentions of the Founders (Score:2, Insightful)
Times change, values change and so must legal and political systems. Being old and dead does not give you eternal wisdom. When the FoundingFathers postulated on freedom of speach, equality and guns they were not thinking of the inernet/TV, women and blacks, nor automatic weapons.
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Some of the founding fathers would still be considered radical today.
Yeah, a good half of the nation at that time had their fortunes tied
up in a problematic labor arrangement. Not even all of THOSE people
completely bought into slavery as an institution.
Some people are much better at being COMPLETELY SELFLESS than others.
That doesn't negate what other virtue they may have.
Consider that the next time you avoid something that's only minor inconvenience in comparison.
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I really hope that was an attempt at satire.
'Problematic labor arrangement'!? You make it sound like someone is in an office and lacks promotion prospects. Human beings were owned as fucking property. Try and respect that.
And your excuse for them is that they had their fortunes tied up in it? Is that supposed to make me sympathetic towards them, that their being rich was built on the misery and forced labour of others?
You don't have to be completely selfless to not profit from the enslavement of human being
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The belief that blacks are at the same "level" of being human as whites is relatively new since that time. Condemning the founding fathers for what was a societal standard at the time would be like saying that all medieval technology was wrong because they thought the earth was the center of the universe. You judge what you can in the context of how it exists. They understood what it meant to be free, and what kinds of rules it took to enable that. They didn't contemplate freedom of their slaves any mor
MSM? (Score:5, Insightful)
Am I ultra-unhip because I didn't know this was an acronym for "MainStream Media" without having to figure it out?
Re:MSM? (Score:5, Funny)
Considering the first line of the summary says "mainstream media", I think this does in fact mean you are ultra-unhip.
I suggest you get in line right now for the new iPhone and stay there until your hair naturally spikes itself and you sprout a pair of Oakleys.
Re:MSM? (Score:5, Funny)
I suggest you get in line right now for the new iPhone and stay there until your hair naturally spikes itself and you sprout a pair of Oakleys.
I'm holding out for the next iPhone, in the hopes that I'll also sprout a pair of Birkenstocks.
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I really think that's what AC meant by "figure it out" I too had to "figure it out". I kept thinking some branch of Microsoft had suddenly decided to stop wandering around with it's eyes closed. (Which is about as crazy a concept as an oil tycoon [pickensplan.com] saying drilling for oil won't get us out of this mess...)
Re:MSM? (Score:5, Informative)
Don't worry.
Being ultra-unhip is the essence of geekdom.
Hip geeks are just poseurs.
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Orthopedists are poseurs?
There's a reason for the gridlock. (Score:5, Insightful)
Idea vs. implementation? (Score:5, Interesting)
From what I understand, patents are not supposed to be granted for ideas, or methods, only for implementations.
Every idea is an "implementation" of a more general idea. There are 1. video games, then 2. puzzle video games, then 3. puzzle video games with falling blocks, then 4. puzzle video games with falling blocks that can be rotated, then 5. puzzle video games with falling blocks that can be rotated and line up x-in-a-row of the same color, then 6. puzzle video games with falling blocks that can be rotated and line up x-in-a-row of the same color to eliminate floating blocks. Nintendo has a patent on 6. So where does "idea" stop and "implementation" begin?
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Idea = "puzzle video games with falling blocks that can be rotated".
Implementation = Tetris.
Seems pretty obvious to me. Implementation is an instance of an idea.
Re:Idea vs. implementation? (Score:5, Informative)
This still makes it confusing, if that were the case, then that's copyright. Not a patent.
I think patents need to be brought into Newton's era. You can only patent implementations of mechanisms that perform some physical process. Novel methods of performing some process would be protected, but not the end result.
So you could patent -a- process to produce a particular drug, but not that drug. If someone else goes to the lengths of finding an alternate and viable method of producing a drug, then sorry.
You could also patent -a- process to perform floating point math in a CPU, but not the floating point math itself or the result of any particular operation. If someone else figures out how to do the same thing, meh.
Copyrights should protect creative works, trademarks protect those who engage in trade and patents protect processes.
Copyright = uniqueness of creative work
Trademark = uniqueness of trade identity
Patent = uniqueness of process
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If someone else goes to the lengths of finding an alternate and viable method of producing a drug, then sorry.
And how do you define "alternate"?
Is an alternate method one that seems exactly like the original but using blessed water so the result is holier.
What about a method that uses a component that you assume to be equal (water) but that your opponent in the patenting sees as different (water with undetectable infinitesimal traces of a nocive element).
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That, like all trademark and copyright cases, is up for the courts to decide.
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That's exactly why patents on software should not work.
Patent the drug as part of a process (Score:2)
So you could patent -a- process to produce a particular drug, but not that drug.
What about patenting a drug as part of the process of reducing illness in a person?
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I can think of a few flaws with this idea, even though I like some of it:
1. The results with the drug industry would be huge and probably not what is intended. Why have drug patents at all when it costs $500M to fully develop a drug and probably only $1-2M to come up with a new process for making a drug. Drug companies would just sit and wait for somebody else to invent drugs and then find a new way to make them, and there would be no new drugs unless the government did all the work. If you want that th
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Great. Who would have thunk that patents were object oriented.
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IANAL, but here's my Rule of Thumb :
1. Patents protect novel ideas
2. Copyright protects actual implementation
So a given implementation that embodies a patented idea is protected by both the patent and its own copyright.
Hence a different implementation may still violate the patent, but will not violate copyright of some other implementation.
The silliness in the patent system has come about because patent offices too often judge 'new' ideas to be 'novel', as opposed to 'obvious to those skilled in
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That doesn't work for physical devices (e.g. this CD player next to me is not copyrightable, no matter how many unique features it may have).
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Errr... um... that's not going to work.
Copyright covers artistic works, and is limited to the aesthetic qualities expressed in the work. Works that aren't "artistic" in some way aren't covered at all. Machines, chemicals, industrial processes, etc. - these aren't artistic in any way.
Unfortunately, copyright has been ssttttrrrrreeettttchhhed to cover software products, on the VERY tenuous theory that EVERY act of writing softwa
Degrees of reification (Score:5, Interesting)
Now, what can we say about the abstract? Well, there are (a) generalizations, and (b) there are specifics missing, without which the specification cannot be converted into a narrow set of possible implementations. Abstract data types, for example, say nothing about the language they would be written in, how they are to be implemented, or even what the actual programmatic interface will be.
Let's say we narrow some things down. We've defined implementable data types, we've defined the primary programming language and (if need be) dialect, we've defined a style (eg: procedural vs. functional vs. OO vs. 5th Generation), we've defined at least one target architecture (be that a specific JVM or a specific piece of hardware), we've defined the exposed API and we've defined some means of testing compliance to these requirements in a computable, programmatic fashion.
You now have something you can white-box test. That's close, but I don't think it goes quite far enough. Let's add one more requirement: A sufficiently large range of externally-used functions, internal APIs, data types and invariants are also defined such as to produce a high level of confidence through testing that what has been written is indeed what was designed.
THEN you have something that's as solid as, say, a car. You can always add extras to a car, so that is still "abstract" in some sense, but it's solid enough. You can test the controls within the car, and perform basic observations on things like whether the engine is running, to establish that it is indeed a car and not a pile of scrap. I would argue that software could be considered "implemented enough" once it had reached the same level of solidness and reality as a model of car from the manufacturer.
Level of detail and innovative step (Score:2)
Patents should give a significant contribution to the state of the art, in exchange for the temporary monopoly granted to the patent owner. I think you have a patent-worthy "implementation" when your description is
1)detailed enough that someone who knows the field in general can build the item without further instruction. For your example, that would be the average guy with a degree in CS.
2)not obvious in the sense that said average software engineer would come up with it within a few hours when asked for a
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In this case, I think the full description of Tetris in 6. (barely) qualifies as "not obvious".
Nit: It wasn't Tetris; it was Dr. Mario and Nintendo's so-called "Tetris 2". The original Tetris doesn't involve color matching and would probably read on only the first four "claims" that I mentioned. In fact, the Dr. Mario patent cites Tetris as prior art.
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The solution to this mess must come from a deeper level than just 'implementation' vs 'idea'.
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Depends. Idea covers a range of things, from a pretty detailed concept of how to make w working example of something to a wish that something existed. Patents for the latter are most of the trouble.
Re:There's a reason for the gridlock. (Score:5, Insightful)
Actually, patents are supposed to cover methods and apparatus, and they always have.
When you're granted a patent it is supposed to cover *how* something is done. Unfortunately a lot of patents are so broad as to actually cover *what* is being done. These patents should be denied.
Re:There's a reason for the gridlock. (Score:5, Insightful)
I disagree.
The purpose of patents is to incentivize the invention, disclosure, and bringing-to-market of novel, non-obvious inventions which would not have been otherwise. It's not a reward for a job well done, or a particularly tricky bit of inventing. I suspect that Rivest, Shamir, and Adleman would have invented, disclosed, and brought-to-market RSA even if patents were not available to them (which was the case everywhere else in the world, in fact). In fact, this is probably true for the vast majority of inventors in the computer field.
If they're willing to work without that incentive, it is wasteful to grant it to them anyway. It doesn't matter whether the invention was on the cusp of becoming obvious to everyone, it matters whether or not the invention would have come about but-for the possibility of patenting it.
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Sure it does, because of the disclosure factor. If inventions weren't patentable, tons of effort would be wasted in obscuring inventions to rely on trade secret law. RSA would have been created, but it might not have been published.
Incentivizing public disclosure is fully half of the reason for the patent system. The value there can't be underestimated. The software industry, in particular, engages in way too m
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Krogers certainly doesn't get a monopoly enforced by the federal government.
What you seem to be advocating in terms of patents is just exactly that:
Krogers gets to tell me I can't grow my own apricots or blackberries.
The inevitable increase in prices and decline in quality will result.
Krogers shouldn't get an exclusive license on anything because they
have deep fundemental problems with their supply chain and store
operations. IF their products weren't commodities, there would be
"mass pi
Re:There's a reason for the gridlock. (Score:5, Interesting)
The trouble is that software blurs the distinction between a device (patent) and a work (copyright). The distinction used to be easy. If you had a new type of engine, you got a patent. If you wrote a book, you got a copyright. But software is kinda like writing a book (so it should be copyright), yet it is used to build the internals of an infinitely modifiable machine (so it should be patented).
This is going to get worse as home 3d fabrication like RepRap becomes more common. Software is now being used to build a physical object, thus eliminating the patent/copyright distinction. At a TED conference [ted.com], an MIT professor talked about a fab method they apparently have going in the lab, where computation is done by arranging molecules; in theory, you could compute yourself a new car. Just imagine what that will do to the patent/copyright distinction.
The end result is that a new form of IP will have to be developed that will combine copyright and patents. In the US, this is probably going to take a constitutional amendment, which almost dooms the effort from the start.
Re:There's a reason for the gridlock. (Score:5, Insightful)
There's really no problem at all. The thing is, there's no requirement that a piece of software be protected only under one legal regime. The regimes do not overlap, but they can each protect different aspects of the same software.
In copyright, there is the idea/expression dichotomy, which results in copyright protecting the implementation of an idea, but not the underlying idea itself. In the case of software, this would mean that all of the algorithms of a program would be uncopyrightable, but the way in which they were written would be copyrightable. So long as you write them a different way (or write them the same way independently, without having copied; or write them the same way due to some functional consideration, such as the dictates of efficiency, of a particular platform, language, etc.) you're fine. For tangible objects there is also the utility doctrine, which prevents the working parts of machines, for example, from being copyrightable.
Patents, OTOH, protect inventions, however they happen to be embodied. So if you invented some bit of functionality, the patent would apply regardless of whether someone copied what you did, or independently came up with it. It would apply whether their code was bit-for-bit the same, or whether they implemented the same invention in a totally different way which still fell under the patent. Of course, if they can achieve the same end result by a different method, then that's not infringing.
So in sum, copyrights are used to prevent people from copying particular bits of source or binaries, but patents are used to prevent people from making identically functioning software, regardless of copying.
Software patents are bad because they're so wasteful, not because they're ill-defined. They're not incentivizing invention, disclosure, and bringing-to-market in the computing field, and are probably hindering it. Since patents are meant to cause more of those things, at the least public cost, the best option for software would be to not offer patents. In the future, we can reexamine the field to see if the natural incentives present are no longer sufficient, and the artificial incentive of patents should be added. But right now, it's a bad idea. Ditto for business methods. That's also such a naturally fertile field that we don't need patents.
Matter as software (Score:2)
The endgame here is that matter will be software, and software can be physically represented in matter.
With technology advanced to that stage, the only way you are going to be able to enforce patent/copyright is at gunpoint. Why?
Imagine there is an immortality drug or some other life-saving invention patented/copyrighted. You can make it yourself for free but cannot afford the licence. What will you do? Save your life, of course.
Note that in the free world you can make patented things for personal use and r
Re:There's a reason for the gridlock. (Score:5, Insightful)
That seems to be how the drug companies are artificially extending their patents by finding new uses for their drugs or patenting the drug with a different coating on it.
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Well, the solution to that is simple enough. Prevent competitors from making the pill with the new coating, but allow them to make the pill with the old coating, or whatever.
I think that is actually how it works, but some unethical companies use various loopholes to tie up competitors in litigation over what is essentially legal activity, and regulators allow the loopholes to remain.
Not all pharma companies actually stoop to these tactics. Some have gone on the record stating that they will only enforce t
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From what I understand, patents are not supposed to be granted for ideas, or methods, only for implementations.
I think implementations shouldn't be patentable either. Innovation would happen anyway, because companies have to come up with something new in order to be better than the competition. Also, dedicated inventors and scientists would continue to crank out new ideas and inventions, because this is what drives them. It's their life.
So we could abolish the whole system and the costs and litigation associated with it. Technological develoment wouldn't grind to a halt, and it may even be faster without the artific
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Company X spends 100M developing a new drug. Company Y saves 100M, copies the drug, and uses that money on marketing and undercutting X. Company Y drives X out of business.
Presumably these inventors and scientists live in a climate wher
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Since the ideas and implemenations will be shared instantly there will be no point in a single company spending so much for development. The costs will be shared between hundreds of companies, each doing a part of the job.
The inventors will be employed by these companies.
It's an entirely different model which is hard to grasp with our current mindset. The above is only a guess. I'm sure people will come up with creative ways to adapt to the new situation.
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This would only happen a few times, because eventually company Y would run out of money because companies Z, Q, R, F, G would also all produce the product. Without new products, all companies will die. Company Y (or Z, etc.) would then choose to develop something new to get an edge on the others or collapse. Most people choose to try to
Software Copyrights is plenty! see Phoenix BIOS (Score:5, Insightful)
http://en.wikipedia.org/wiki/Phoenix_Technologies [wikipedia.org]
Phoenix went through an elaborate clean room process to create a non-infringing BIOS implementation that could be proven to be an original work and not a copy. The effort they went through (and all of us benefit!) was probably more expensive than writing the original BIOS. It was worth it as it led to all the PC clones, but consider the effort involved to overcome just a software copyright.
If they had software patents back then, not only would the clones not have been available, but broad patents on all the ideas implemented in the BIOS would have tied up almost all subsequent BIOS type firmware, so that almost no personal computer could have been built at all! Including the Mac, Amiga, etc. Software is an implementation of an idea, and the ideas should not be patented. Software copyrights are about protecting the implementation, and that is plenty of protection.
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From what I understand, patents are not supposed to be granted for ideas, or methods, only for implementations .
You understand wrongly.
The costs of patents (Score:5, Interesting)
Businesses spend MASSIVE amounts of money either filing patents for offensive/defensive activities or trying to work around them. I would be very interested to see an accounting of a) what percentage of patents actually result in a license b) what the cost in terms of employee and lawyer time was to create the current body of patent work (plus the fees of course), c) the number of decisions to NOT make a competing product due to patent issues, d) the number of patent cases resulting in a patent being invalidated e) the number of patent cases settled out of court for less than the legal fees to challenge the patent f) (this is complex) the number of patents with BOTH cases settled out of court for less than potential legal fees and with existing patent licenses before the litigation and finally g) the ratio of licenses taken out on a patent to the number of observed workarounds (and patents on the workarounds) done by companies to avoid said patent.
If the ratio of a to b is very small, it would mean that there would have to be MASSIVE returns on license fees to justify the money paid to create patents. Otherwise we the customer are footing the bill for the horse and pony show.
c is hard to document, but every instance where it happens is one less competitor and in a capitalistic system that means less pressure to drive down prices on a product. The idea is of course to offer the patent holder a limited monopoly in exchange for publishing the idea, but the fact remains the customer loses on this deal UNLESS the invention would not have been published/implemented WITHOUT the patent system. Impossible to know I suppose, but food for thought.
Every instance of d is a waste of money in terms of all the effort to get the patent, the time of the patent office working on it, and whoever is forced to fight it. Ouch.
e needs to trigger a close examination of the patent - if the settlement is just to avoid going to court, it must mean that either the company doesn't think they'll make more in a lawsuit even if the patent is valid, the patent holder can't afford a battle either, or the defendant is not going to pay out of pocket just to invalidate a bad patent when its cheaper to settle. In the latter case, it is a waste of economic resources.
f is a possible way to get a handle on how often the first possibility for e happens - if they have successfully licensed it (not cross-licensed as part of a stand-down agreement between big players but actually had someone pay for the right to use it) and still took the lesser fees it might be at least a suggestion there could be validity in the patent.
g is simply a waste. Bright, talented minds try to work out a way around some idea, when they might be working on new features, products or inventions. Sometimes you get new ideas working around patents, but a lot of it is just monumental silliness. The consideration is avoiding the patent, not the best engineering solution.
If somehow all of these costs could be totaled up, I would be very interested to see what the end number would be.
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This is damage that's basically impossible to measure. Some giant companies probably track the direct decisions, but even then there's no way to measure "bringing products to market in general is dangerous because of unknown patent risks" effects.
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Agreed. That doesn't mean it's not a cost. I know several of these are difficult/impossible to measure, but the effects are none the less real.
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Tell me about it! My boss is all like, "Why did you write 100 lines of incomprehensible C code without a single comment explaining what's going on?" I'm glad I finally got some backup on this issue.
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You're absolutely right. But this already has been done.
http://www.researchoninnovation.org/dopatentswork/ [researchoninnovation.org]
Dead On (Score:4, Insightful)
Re:Dead On (Score:5, Interesting)
Well said!
At the end of the day the real test of whether something should be patentable or not should be related to the reason patents were instituted in the first place...to incent investment in R&D by rewarding that investment in innovation. The reward, in the form of artificial protection from competition for a limited time, is enough to ensure the investor(s) profit from the investment. Obvious or not, if a company or individual has invested significant time/money in a program aimed at solving a problem and come up with a new and unique (even if obvious by hindsight) solution they should be rewarded not for the idea, but for the investment, thus incenting investment in innovation.
The fundamental problem with the patent system today is that it has been warped over the years into something it was not intended to be. Remember, the patent system is not something that has to exist; it is something that we as a society agree to have in order to incent individuals and companies to perform activities that are of benefit to society. Patenting of business processes, software patents and incidental patents (my own personal winner for least deserving) are all the result of this move away from the original intention. Combine this shift with the allegations of overworked and wrongly incented employees and the patent system certainly looks broken
There appear to be two basic uses for the patent system that unfortunately are sometimes at odds with each other.
[Aside: When I worked for a large s/w company we were encouraged to regularly trawl through our developed code for potentially patentable algorithms, this is clearly a case of (2) not (1)]
Surely the only useful purpose for a patent system is to incent companies to make investments that would otherwise not have been made. If a company got a clear benefit from an investment and would continue to benefit whether granted a patent or not then there is no point in society (i.e. the rest of us) granting them a patent! What they have is a trade secret that should be protected by other laws (copyright?); it should not be a patentable innovation. Other companies should have the right to make a similar investment to develop a similar solution (or license the technology/solution from the original company if that is agreeable and makes more economic sense)
Today, if a company has a trade secret that they feel they could make money off they typically have to patent the trade secret (even if only defensively) and then license it. This behaviour (licensing developed solutions) should be incented but not using the same system as that which incents investment in innovation.
So how about taking this approach...
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You can't keep most products as trade secrets - almost any product can be reverse-engineered today for a fraction of the original R&D cost. So, this kind of move would probably get rid of patents altogether. I'm not convinced this is the best solution to the current problems.
The precise text (Score:2)
If they no longer serve this purpose is it time to abolish copyrights and patents [abolishcopyright.com]?
Just to be clear . . . (Score:5, Interesting)
It Helps Secure Venture Capital (Score:5, Insightful)
If you're starting a new business, having a patent goes a long way toward convincing potential investors to become actual ones.
WTF (Score:2)
trichard writes tips a column on the editorial page at ... the Wall Street Journal
So the TLA MSM now means WSJ? OMG! WTF!
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Actually, it's interesting you should mention that, since the same company that owns Fox News owns it now:
From the WSJ wikipedia entry [wikipedia.org]:
As of December 13, 2007, the Wall Street Journal is owned by Rupert Murdoch's News Corp.
On May 2, 2007, News Corp. made an unsolicited takeover bid for Dow Jones, offering US$60 a share for stock that had been selling for US$33 a share. The Bancroft family, which controls more than 60% of the voting power, at first rejected the offer, but later reconsidered its position.
Thre
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800 generic drugs backlogged at the FDA (Score:5, Interesting)
From here [onthepharm.net]:
Staggering numbers.
Can software patents be abolished any more? (Score:3, Interesting)
Considering the massive economic resources that have been invested by big players filing software patents, is there any politically workable way to change the law and make software unpatentable again? It would be (in the eyes of patent holders at least) the same as throwing all the money invested straight out the window. Although this may be (practically speaking) what happens anyway as far as the economy (us) are concerned via paying lawyers to fight, those benefiting from the fighting and having committed the $$ may be a hard sell. Not to mention the difficulties involved in crushing those annoying upstart competitors without having patents to wave around.
The ray of hope for real change may be (oddly enough) the patent trolls and their parasitic activities hurting EVERYONE else, but will they be enough to turn the tide?
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is there any politically workable way to change the law and make software unpatentable again? It would be (in the eyes of patent holders at least) the same as throwing all the money invested straight out the window.
And they should have known better instead of being enthusiastically part of the problem. What is the best thing about hitting yourself on the head with a hammer again?
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I've heard it suggested that SCOTUS might overturn software patents on the whole, but for that to happen, someone would have to bring a case up that high and challenge the patentability of software.
Counsel had to know this was of questionable value (Score:2)
Gambling should not be rewarded, and much less so by giving the jackpot to every player.
As can be seen e.g. from the article linked here, eminent lawyers, economists and computer scientists left no doubt [slashdot.org] that the purported foundations for making software patentable were shaky at best.
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its very simple to me (Score:5, Insightful)
The patent system is a privilege to encourage publication of invention while granting a limited-term monopoly on licensing that invention.
Like the copyright system, it has been twisted by special interested groups into some kind of right whereby creators of art and technology and knowledge deserve some kind of lifetime monopoly. Throw in companies, works for hires, NDAs, etc and suddenly you have the very thing both systems were founded on to combat: a semi-feudal permenant monopoly on inventions and works of art.
I like to think of it this way - most people think it'd be unfair of somebody to be able to create their own Mickey Mouse merchandise. But certainly, Disney has reaped enough benefit from the original artistic creation, and certainly, if the character is so ingrained into our cultural fabric, it seems asinine to say only one company should be legally granted the permission to re-tell/re-interpret the stories? If the laws many companies sought came into effect, they would have been sued out of existence by their own original creations. That's what limited term means. After awhile, its not your story to tell. With respect to patents, it's the same thing - longer term, wider and more vague claims.
Everyone agrees that inventors/authors should be able to protect their work. It's just that when the terms of that protection get too strong, shrewd capitalists just can't resist, and always work on tipping the legal tables in their favor.
And screw the founding fathers - the acknowledgment that patents and copyright can encourage intellectual and cultural progress pre-date the US by centuries. What has been lost is the concept of balance and compromise. It's a political minefield politically within the context of the American Dream. Somewhere along the line, people started confusing right to private property with right to earn.
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...will begin to tackle the problem of IP law stifling innovations in media?
Somehow I'm not holding my breath.
QUOTED FOR TRUTH
Bullies (Score:2)
Patent abuse is the symptom. (Score:2)
Western society is stagnating, badly. I look at leaders like Gordon Brown and George Bush and I see Leonid Brezhnev. Old men, polishing their medals and maintaining an establishment that is dying from the inside out.
Per capita energy consumption has already peaked and gains in efficiency are increasingly marginal (as dictated by the laws of physics). The kind of expansion our elites have made their fortune with is no longer possible, and so they have fallen back on pure rent seeking. They have had to commod
Disclosure argument is worthless (Score:2)
Imagine if you couldn't write stories containing lesbians, because that idea was currently copyrighted. Or maybe you could use lesbians unless they behaved in one of many specific ways. For the full list you would have to check the copyright office where all copyrighted ideas are stored, written in a format that is supposed to make the ideas so hard to understand as possible. Also, if you actually check the copyright office you would be more liable to get punished if you wrote something infringing. That is
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Imagine if you couldn't write stories containing lesbians, because that idea was currently copyrighted. Or maybe you could use lesbians unless they behaved in one of many specific ways.
You don't have to imagine much, there is a company [plotpatents.com] that seems to be trying to do exactly this by patenting plots (or storylines).
The simultaneous invention problem (Score:2)
I think I understand the thinking behind having patents - as a way to prevent others from profiting from a patent owner's hard work on researching and implementing a solution to some problem merely by seeing their solution and copying it.
HOWEVER - it seems that many new inventions come about due to the combination of current scientific knowledge, current technology and current problems. This often leads to the same (or very similar) inventions being independantly made by several people across the world with
That's not the purpose of the patent system (Score:2)
Not trying to distract you from your main point about simultaneous inventions, but there's a bit of apparent confusion in your opening sentence. Perhaps you understand this point and were merely simplifying, in which case I apologize, but as written this propagates an unfortunate misunderstanding:
I think I understand the thinking behind having patents - as a way to prevent others from profiting from a patent owner's hard work on researching and implementing a solution to some problem merely by seeing their
Ars Technica has a good review as well (Score:2)
- Jesper
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I found this article [arstechnica.com] (actually it is a book review) on Ars Technica to be much better. It is longer, explains some of the problems in detail, and includes an interview with the authors of the book which prompted the Wall Street Jurnal to run the story.
Dont know what happened to the Ars link and my Anchor tag. Here is the full URL: http://arstechnica.com/articles/culture/book-review-7-08.ars [arstechnica.com]
- Jesper
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Attempting to fix this would draw legislative fire from congress.
I've been thinking about that too.
For the sake of discussion, lets say that some event happened that forbade patenting the 'method of' anything.
What happens then? There are so many highly ambiguous patents already issued which companies paid between $10,000 and $25,000 to obtain, not counting the costs of litigation.
Would those just instantly become null and void? I doubt it unless the government bought them all back under the idea of eminent domain (as patents are considered to be property). What would be
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