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Patents

Too Many Patents as Bad as Too Few 203

Posted by Hemos from the getting-the-word-out dept.
NonSoftAntiCurve writes "Forbes.com has an interesting article about how too many patents are as bad as too few when it comes to incentives for innovation. 'The tension between the patent as a way to stimulate invention and the patent as a weapon against legitimate competition is inherent in the system.' There is a scary example of how this plays out in practice."
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Too Many Patents as Bad as Too Few More

Too Many Patents as Bad as Too Few

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  • The Forbes group of companies conveniently holds some of the most ridiculous patents on Earth, including nose hair pruning shears and random mom joke generators.
  • and here all this time I thought it was just a beautiful thing!

  • same as laws.. (Score:4, Insightful)

    by thrillbert ( 146343 ) on Friday June 14, 2002 @04:30PM (#3703806) Homepage
    If you do not have enough laws, you would end up with chaos. If you have too many, then you are oppressing the people.

    All in moderation, as one smart person said.. but I'm too dumb to remember who said it.

    ---
    If God had meant for us to be naked, we would have been born that way.
    • "Everything in moderation" is inscribed in Apollo's Delphi in Greece. So it goes way back...
    • There is a simple balance, you've just got to remember that there are brand new US patents being issued on things which were done about 100 years ago.

      I know I'm not popular here for being in the "Slashdot party line" of Linux against Capitalism, but I think just about anyone can find name just at least a dozen patents which are plain old corporate recycling of ideas that were well known before the "innovative party" was even born or their company was set up.

      Personally, I'd rather see some amount of responsibility taken by the Civil Service and the corporations because I know exactly how much damage playing monopoly with Geneticically Modifified Food causes.

      Has anybody wondered why they have been addicted to junkfood, and exactly why nothing is being done about it ?
      This wouldn't have anything to do with creative science tampering with life just for the bottom line ?
    • All in moderation, as one smart person said.

      Moderation? Slashdot moderation? urgh....

    • This was the title of a Zine my friend Eddy Liddle in Japan used to keep. The title was in reference to the failures of semiotics because of the proliferation of symbols in the wake of the stunningly inexpensive media reproduction techniques that began to show up in the early twentiety century and are still proceding today in the likes of boradband, optical media and hard drives.
      A similar idea is the basis of one of the chapters of Jameson's book Postmodernism although there are many earlier references along the same lines from many authors. The the general idea is that as language proliferates through the intervention of machines meaning becomes destabilized. The euphoria part is a choice made by the individual. You can love it or hate it although it becomes increasingly difficult to remain unmoved which is what most people seem to prefer.
      The abundance of patent data to the point that it becomes a cloak of knowledge rather than a guiding light will lead to an overhaul of the system, but not until the majority of Americans are moved as they were in the early part of the last century. Obviously, that movement will only come with financial chaos.
      On the bright side, (this is the euphoria part) we might not be that far away from reforms.
  • There is a scary example of how this plays out in practice

    Beware this sounds a bit like a goats.ex link story.!!!

  • As Voltaire once said... (Score:3, Interesting)

    by Anonymous Coward on Friday June 14, 2002 @04:32PM (#3703825)
    A multitude of laws is a sign of a sick nation.

    So it is that a multitude of patents is a sign of a sick economy, IMHO.
  • Hey, didn't Jackie Chan make a movie about that Sun/IBM trademark meeting? No wait, that was a Chinese restaurant, not a Sun Microsystems boardroom. And hey, it was a triad, not IBM. And come to think of it Jackie Chan doesn't show up in the Forbes article and kick IBM ass.

    Pity though.
    • Of course if Jackie Chan were to kick their asses, Bruce Lee's heirs' lawyers would likely show up waving Bruce's patent on "Kung-Fu Infliction of Blunt Force Trauma as a Method of Smiting Evildoers".
      • Of course if Jackie Chan were to kick their asses, Bruce Lee's heirs' lawyers would likely show up waving Bruce's patent on "Kung-Fu Infliction of Blunt Force Trauma as a Method of Smiting Evildoers".

        No bother... Jackie Chan would definately fight it (in court?) and point to Chang San-Feng as prior art :)

  • Too many patents, and nobody will want to do anything....

    • Re:Well Duh... (Score:2, Informative)

      by Anonymous Coward
      software patent rights are 100% commensurate with open code. The invention is not the only thing a patent rewards, it is also the disclosure. The ideas behind patented software are open to the public, and are documented for the first time in the application. If you can find the idea somewhere else with an earlier date the patent is invalid. However, the term (20yrs) is too long for the pace of innovation, yet it is not nearly as bad as copyright protection's whopping 75yrs.
      • Not quite commensurate with open source? Sorry, not even close in practice.
        You speak of disclosure as though people write patents intending to have their work reporoduced,but that would be a ridiculous assumption in patents that is true in open source.
        In fact, the job of the patent attorney is to reduce discolsure to an absolute minimum through any and all deceptive practices. That's simply what patent attorneys are paid for. Contrast this with open source where very few, I'd assume very few, coders consult with a lawyers on how to make their code incomprehensible to their competitors.
  • Let's see if I can use Slashdot as a free version of Google Answers...

    Does anybody have the patent number of IBM's "notorious fat lines patent", referenced in the article? I searched a bit on uspto.gov, but couldn't find it.

  • It is Scary (Score:5, Interesting)

    by Lucas Membrane ( 524640 ) on Friday June 14, 2002 @04:34PM (#3703836)
    I know of a medical researcher making great progress on a wonderful device that might eventually be implanted in many people. He notes that there is one problem he needs to solve, a problem with the body rejecting one of his materials. Someone else has solved the problem, but they've got a patent on using the material that they use, so he's got to find a different one that works almost as well or better. Would be a shame if many people wound up walking around with a second-best material inside of them.

    • Re:It is Scary (Score:3, Interesting)

      by aclarke ( 307017 )
      It would also be a shame if a company spent millions of dollars developing a revolutionary material only to have the rest of the world use it for free and the research company not get reimbursed and as a result never create anything else again.

      If only everybody were altruistic in their motives. Then maybe the patent holder would license his/her material to your friend for a reasonable fee, and they'd both be happy. I think this is how it's SUPPOSED to work...

      • Re:It is Scary (Score:3, Insightful)

        by SirSlud ( 67381 )
        >Then maybe the patent holder would license his/her material to your friend for a reasonable fee, and they'd both be happy. I think this is how it's SUPPOSED to work...

        It is how its supposed to work, but patents are often much more useful as leverage to supress the viability of copmetitors' work than as a means of getting paid for that discovery.

        If you think about it, you only need one good marketable patent to support yourself. Any more patents, you can just use that as ammunition to fuck other people up.

        Its the same with copyright. Can you imagine we are (happily, according to the IP camp) paying people's sons and daughters for a few years of creativity on behalf of a father/mother/uncle/aunt or whatever?

        The pot of gold at the end of the rainbow is simply too rich. People are altruistic (well, altruistic as in 'i wish to life with minimal social friction, and i dont need *everything* I can get, I'll share that so that I dont have to consistantly fight and keep my gaunrd up), until you put them in a pit and convince them that fighting to the death is the only way to live.

        • Re:It is Scary (Score:5, Insightful)

          by dillon_rinker ( 17944 ) on Friday June 14, 2002 @05:15PM (#3704044) Homepage
          ...paying people's sons and daughters for a few years of creativity on behalf of a father/mother/uncle/aunt or whatever

          Sons and daughters? Copyrights last for, what, life + 70 years? Barring advancements in logevity treatment, my children (~20 years younger than I) and my hypothetical grandchildren (~40 years younger than I) will all be dead 70 years after my death. My great-grandchildren will be either dead or retired. At some point, the recipients of my creativity will be my great-grandchildren and my great-great-grandchildren.

          Patents, no matter what else is wrong with them, have the good grace to expire 20 years after being issued. Let's all hope that no one ever comes up with a Sonny Bono Patent Act.

          • Patents, no matter what else is wrong with them, have the good grace to expire 20 years after being issued.

            Actually, it is 20 years after they were filed. It used to be 17 years after issuance, but no more.

            • Patents, no matter what else is wrong with them, have the good grace to expire 20 years after being issued.

              Actually, it is 20 years after they were filed. It used to be 17 years after issuance, but no more.

              In other words, we've arguably already had one Sony Bono copyright act for patents.

              As for patents' shorter duration, one must balance that against patents much further reaching restrictions. With copyright you are prevented from copying a particular work, but you can still incorporate parts of it via quotation/fair use, and there's nothing to prevent you from writing a similiar story/program/movie with slightly different characters. Remember all the cheesy 70's techno-super-hero knockoffs (6 million dollar man, the guy with the watch that made him invisible, etc.) ... some of 'em had episodes that could literally have emerged from a word processor with just the character names changed and some minor alterations to dialog.

              Contrast that with patents, which would have made the cliffhanger ending off limits to everybody for 20 years (and quite possibly longer, as there is a habit of making very slight alterations to a product, especially medicines, and then getting a new patent on essentially the same item).

              Copyrights are bad, and I've long advocated their elimination and replacement with something far milder, that doesn't convey monopoly priveleges on anyone, creator or not. But patents are just as bad ... they slowdown not only current innovation, but lock out future innovation that could build upon what we have today for a minimum of 20 years!

              The social and economic costs of these government mandated monopoly regimes is simply too high ... monopolies need to be replaced with tax incentives and required public acknowledgement, and the terms of even those reduced dramatically.
      • Let me tell you something about this "revolutionary" concept. First revolutionary ideas do not exist. All ideas are based on other ideas and hence are not entirely unique. And since we are in a global economy now the 3,000 monkeys typing and one of them writing Mozart applies more than ever before.

        And this is something that we are not able to comprehend. We are not unique we are all part of an eco-system where more than one person will have the exact same idea. This is because we all get the same information and we come to the same conclusions.

        Think about this... Lets say genuis's (Einstein) are created in the same odds as a lottery, which is one in 13,983,816 odds. Our planet has 5 billion people. Using lottery odds: this means that 50 people are pure geniuses. And pure geniuses would be the most likely to create REALLY unique ideas. Result? There is no unique idea because there are too many people! And hence a patent system only protects to stop innovation.
        • OK. Let's get this straight. There are something like 6 billion people in the world. 6000/13 != 50. Maybe 500, but not 50.

          Second, I really dislike it when someone brings up Einstein in this type of discussion. How familiar are you with PhD theses? Generally, PhD research is based heavily upon other works. In fact, just as with today's world, I think you would find that the scientific world of 1905 would be etremely sceptical of any research that did not contain references to other peoples' works.

          Yet Einstein's Theory of Special Relativity (the one published in 1905 entitled "The Electrodynamics of Moving Bodies") had no references. Zero. This thing defies all logic according to what is publishable. Even by 1905 standards. Research without references generally is considered bunk. Without merit.

          Einstein's genius transcends almost every scientific achievment known to man. It is without a doubt on par with Newtonian physics and the invention of calculus. There was no work that it built upon. Einstein's theory of special relativity is completely original, without need of references. His genius is not that of 1 in 13 million. It is the genius of one in 10 billion. It is a genuine leap of faith. It is completely revolutionary. It is far more than the result of 3000 (or 3 trillion) monkeys typing randomly. If we see another Einstein in our generation we should consider ourselves lucky.

          What this has to do with patent law, I'm not sure. But please don't pull out Einstein as proof that there are no "revelotionary" concepts. Einstein's Theory of Special Relativity is about as close to revolutionary an idea as I think humanity has ever produced.
          • When the number of zeros go beyond 5 I mistype!

            How familar am I with PhD thesis? Extremely since I am a University Grad!

            Lets look at this from a logical point of view. Just because something had no reference does not mean it came out of the blue. Because that is what you are saying when saying he had no references. For Einstein to get the ideas he had he had to have a basis of knowledge. This means he had to know something about the science, which was discovered by someone else.

            To prove my point, if Einstein had be born in 5,000 BC would he have had the same ideas? No because approximately 50% of our knowledge comes from our environment. Would he have had other ideas? Most likley yes, but not relativity. The reason is because he did not have the basis. Why am I mentioning 5,000 BC? Because that was the time that we as humans stopped evolving physically and had all of the mental capacities of today.

            As Newtown said "If I have seen further it is by standing on the shoulders of Giants" So why build a patent system based on this?

            • Patents don't apply to scientific discoveries. I don't want to get involved in an argument about the efficacy of patents. Our patent system isn't based upon, nor does it apply to, scientific discoveries. Our patent system applies to inventions, a very different subject than scientific discovery. One applies more to science, the other more to engineering (I don't mean to imply that either is bounded by these, however).

              I was merely commenting on the futility of using Einstein as an example of "ordinary" genius and incremental scientific discovery. I do not think Einsteins meets these criteria.

              Several people have achieved significant leaps in scientific discovery. Among these people I include Newton, Einstein, and Archimedes. Using these people as examples where giant leaps in understanding were not achieved is, IMHO, wrong.
              • Ok we agree with the problems of the patent system. But my point is that there is no such thing as a unique genius. These people just happen to be at the right place at the right time. Did they help civilization? Sure they did, but are they unique? Absolutely not since there would be another place and another time.

                Just as a simple example: Columbus. Found the new world and he was the hero. But now it has been found out that the vikings were the first to arrive here. But yet the world remembers Columbus? Why? Right place at the right time. Newton understood this fact and he said this using his famous quote.
                • No. We don't agree with the problems of the patent system. I told you I didn't want to get mired in a discussion about the patent system. From your statements, I can only state that we disagree--I really don't want to discuss it, because such a discussion wouldn't accomplish anything.

                  Comparing Columbus to Newton or Einstein is simply wrong. One took daring bravado and required leadership skills. The other two were geniuses that come along very infrequently. If Newton had only discovered gravity, then maybe you could write it off as him being at the right place at the right time. But he bested this achievement by creating integral calculus. This took an unusual level of genius. Had Einstein merely discovered that matter and energy were intimately linked (e=mc^2), then maybe you could write it off as him being at the right place at the right time. But he bested this achievement with his Theory of General Relativity. If Archimedes had merely discovered that water displaced by an object placed in a tub of water equals its volume, you might be able to write it off as him being at the right place at the right time. But he bested this achievement by developing the fundamentals of what we now know as differential calculus.

                  These sorts of discoveries don't happen twice to the same person (OK...maybe they *could*, but I really doubt this was the case with any of these people, and the odds of this happening are essentially zero). These people made their great leaps of discovery not because of luck (or leadership or bravado) but instead because of an amazing level of genius. They are not comparable to Columbus, IMHO.
                  • You are right we agree to disagree.

                    I never said luck. I said from the original post that learning is incremental and it is also being at the right place at the right time. Had either Newton been at another place or another time we would be talking about someone else.

                    Want another example, lets talk radio, telephone, etc. We all think Thomas Edison invented the radio, but in fact it was Innocenzo Manzetti.

                    To become a genius that is remembered in history it does not simply take amazing intelligence. It takes multiple things, like luck, intelligence, etc. Now about amazing discoveries occuring twice? I am not so amazed because once you are recognized people will listen to your other oddball ideas as well.

                    And lastly remember the quote of Newton: "If I could see further it is because I stood on the shoulders of giants." I think that ratifies my point!

    • Re:It is Scary (Score:3, Interesting)

      by saphena ( 322272 )
      The purpose of a Patent is to allow others to use the invention, in fact, in English law, a Patent can be defeated by demonstrating that the invention was not made available for use.

      The only "obstacle" preventing your medical researcher from using the best material is that he doesn't want to pay the royalties.

      Royalties are the means by which the inventor gets rewarded for his contribution to "the common good".
      • Right, but say the object is a titanium pin which is 10cm in diameter and 100cm in length (or some similarly simple/cheap thing). And say the royalty is $1,000,000 per pin. Technically, the only thing holding you back is a simple royalty. Realistically, you're 100% blocked.
    • Wouldn't necessarily be a shame if people wound up walking around with the best material inside of them, after paying a license fee to reward the one who solved the problem.

      Licensing is one solution, out-inventing the competition is another, and so is waiting. Forbes points out that in the eighteenth century, 17 years was not a very long time. A shorter term might make more sense today, now that inventors can line up financing and outsource manufacturing in a matter of months.
    • > Someone else has solved the problem, but
      >they've got a patent on using the material that
      >they use, so he's got to find a different one >that works almost as well or better.

      Has he even considered licensing the material?

      How long until the patent expires? Will it take longer than that to develop the product anyway?

    • Hey,

      Would be a shame if many people wound up walking around with a second-best material inside of them.

      Another way of looking at it is that Americans have health insurance that can pay out many thousands of dollars. As a result, companies that produce health equiptment can have high profit margins.

      It would be a shame if a guy invented a brilliant new material that saved thousands of lives, and big drug companies took his idea and made millions from it without giving him a dime.

      If he wants a reasonable royalty of something like $25 per unit (Which would, of course, come out of people's medical insurance), that seems fair to me. If he has a good product, he deserves some money for his effort.

      Just my $0.02

      Michael
  • From their site [eetimes.com]:" Meanwhile, the impact of the U.S. patent system on innovation is being studied by the National Academy of Science. The academy is expected to issue a report shortly."

    Additionally from the National Academy [nationalacademies.org]" The question arises whether in some respects the extension of IPRs has proceeded too far. "

    Guess I won't patent my perpetual motion device today.

    • >>

      Interestingly enough, you mention the _one thing_ that's genuinely difficult to patent. The USPTO has gotten so many perpetual motion machine applications over the years that it requires, for that one invention only, a working model. Anything else, paper's fine, but for perpetual motion, you gotta bring them a physical device.

  • Last year in a show of how easy it was to disrupt and abuse the patent process by registering a common, every-day idea a Melbourne lawyer patented a "circular transportation facilitation device" [bbc.co.uk] with more info on the story here, [theage.com.au] here [ipmenu.com](pdf file), and here [harvard-magazine.com]

    Obviously it's too easy to get things patented these days, especially in areas of high technology as few if any patent officer workers are well versed in the areas of technology. Most of the patent office stampers would have little inclination as to how an intigrated circuit works or if an item of software recently designed is any different or unique from any other piece of similar software.

    Sure, it's nice to be able to patent and protect your inventions and innovations, but when most of today's patent holders are larger corporations, it's hardly meant to protect the garage inventor anymore.

    • When you apply for a patent, you start with a very broad claim. That way, if and when it is rejected, you narrow your claim until it gets accepted. You always start with as much as possible so you can narrow it down without adding anything.

      My company just filed a patent for our product and the first claim pretty much comes down to: "Using a computer with a database to analyze scientific data." Of course it will get rejected. Problem is, sometimes claims like this make it through.

    • Re:Too Many Patents, Like this one on the Wheel (Score:1, Funny)

      by Anonymous Coward
      Well, you don't have to go and reinvent the wheel.

      [ducks for cover]

    • Obviously it's too easy to get things patented these days, especially in areas of high technology as few if any patent officer workers are well versed in the areas of technology. Most of the patent office stampers would have little inclination as to how an intigrated circuit works or if an item of software recently designed is any different or unique from any other piece of similar software.

      Kind of amazing to think 100 years ago Einstein was working in a patent office. My how times have changed.

      GMD

  • There will be a HUGE burden of patents which will need to be re-reviewed. It will be very difficult and I'm sure some people will advocate invalidating all patents from 1980-ish onwards. I would advocate such a process. Require all patents assigned to corporations to re-apply but waive the fees if the patent goes through the second time. For patents issued to individuals, the office could automatically review them. I personally think that corporate welfare should be kept to a minimum.
    • Since patents only last 17 years, "invalidating all patents since 1980-ish" === "invalidating all patents", unless there are term exceptions buried in the law somewhere.

      Not that I'm agreeing or disagreeing with your post, just thought I'd point that out. You may or may not want to reconsider your position. Not that the USPTO gives a fig what we, the Consuming Public, think.
      • Actually, there are sort-of term extensions: you can add things to your application before it is granted and in the process almost indefinitely extend the duration that the application is in progress thereby shutting out competition without a fully granted patent that might last 30 years or longer. There was an article here on that a few months ago.
  • patents are encouraged. People who have patents awarded are rewarded by the company. This is done because our industry (pharma, drug delivery, an biotech) is littered with patents. Most of these patents are to "protect" your innovation and property - but mostly get used in cross-lisencing litigation. Some of these patents are legit and are needed. A lot of them, though, are just there to serve as landmines to others in the field.

    • If it became cheaper to litigate these matters, it might not be as much of a problem.
      Imagine if all patent litigation was cheap and affordable to all. The odds seem reasonable. If only half are valid, and a small percentage actually apply, this would not be a problem.
      Or, we just need to decide to divide all lawyer's bills by 10 or 100 and encourage them to produce results and not bills.

  • "maybe you don't infringe these seven patents. But we have 10,000 U.S. patents. Do you really want us to go back to Armonk [IBM headquarters in New York] and find seven patents you do infringe? Or do you want to make this easy and just pay us $20 million?"

    Now correct me if I'm wrong, but my understand is there are laws against this thing, and SUN could easially have taken IBM to court over this claim. If IBM wants to pay someone to examine all 10,000 patents, that is their right. However the threat that they could is illegal to use.

    • It's blackmail because it's cheaper for Sun or any other company to pay up than to fight a legal battle with IBM.
    • Extortion is perfectly legal, you just have to pay bribes ;)

      In other words, while that may be what it boils down to, you can be sure that they payed plenty to lawerys to make sure that it got the point across without ever being something that you could bring them to court over. Take a look at threats of prosecution under the DMCA for an excellent example of this.

  • Look who's talking. (Score:5, Insightful)

    by dinotrac ( 18304 ) on Friday June 14, 2002 @04:48PM (#3703911) Journal
    Nothing in this article is news except for the source.

    This isn't RMS, it's a patent attorney writing in Forbes.

    I think I'll stay in tonight. Surely, there are pigs flying about.
  • Patents not only exist to help innovation, they also exist to grow the commons so that eventually everyone can use it patent-free. If there are too many patents, than the natural competitive system breaks down.

  • The Supreme Court Agrees (Score:5, Informative)

    by User 956 ( 568564 ) on Friday June 14, 2002 @04:48PM (#3703913) Homepage
    From The Supreme Court:

    It was never the object of those laws to grant a monopoly for every trifling device, every shadow of a shade of an idea, which would naturally and spontaneously occur to any skilled mechanic or operator in the ordinary progress of manufactures. Such an indiscriminate creation of exclusive privileges tends rather to obstruct than to stimulate invention. It creates a class of speculative schemers who make it their business to watch the advancing wave of improvement, and gather its foam in the form of patented monopolies, which enable them to lay a heavy tax upon the industry of the country, without contributing anything to the real advancement of the arts. It embarrasses the honest pursuit of business with fears and apprehensions of concealed liens and unknown liabilities lawsuits and vexatious accountings for profits made in good faith. (Atlantic Works v. Brady, 1017 U.S. 192, 200 (1882)).


    It certainly appears from this Supreme Court opinion, written over a century ago, that the US patent office was already out of control. Sad to say, things have only gotten worse. Thanks largely to the League for Programming Freedom (yes, I'm a member), software patents have gotten at least some of the notoriety they deserve. But the more patents I read, the more I come to the conclusion that things are just as bad in the more traditional hardware areas. It seems that every day somebody finds a patent that just makes everyone's jaws drop open in utter astonishment. Here's one I just discovered: US patent 5,443,036 covers the use of a laser pointer in playing with a cat. Check it out; this is not a joke, unless you consider (as I do) the entire US patent system to be one very sick joke.

    To their credit, in 1994 the Patent Office put out a call for comments on "obviousness" standards for patents, asking if perhaps they have been inappropriately lowered. (Is the Pope Polish? Are your taxes too high? Does a bear...well, you know.) Here are the comments I filed in response. Naturally, they were ignored.

    Recently a Slashdot reader hit on a brilliant analogy that ties it all together for me, and I'm not even a bearded linux hippie: patents, he said, are merely a form of industrial pollution. After all, both pollution and patents are economic externalities that can enrich individuals or companies at the expense of society as a whole. And both are often defended as economic necessities. At one time, society celebrated the belching black clouds of smoke and soot from steam locomotives, power plants and steel mills as signs of progress and economic prosperity, but this changed. I fervently hope that I live to see a similar sea change in public attitudes toward the patent system.

  • Is it just the USPTO? (Score:3, Insightful)

    by Henry V .009 ( 518000 ) on Friday June 14, 2002 @04:52PM (#3703937) Journal
    Within the past five or six years, economists in particular have started to question the USPTO's practices, finding little correlation, if any, between patent proliferation and invention.
    The article makes a number of good points. Now, I am generally in favor of patents, as long as there is good correlation between patents granted and invention.

    According to the article, this is no longer the case because the nature of the USPTO has changed in the past couple of decades. If that is the case, fine. Reform the patent office.

    But what if that is not the only factor? What if technology has gotten too advanced for any practical patent system to work anymore? What if genuinely new ideas can only be separated from the mass of old obvious ideas by the experts in the fields? It used to be that someone with a B.S. degree had a good chance of deciding whether or not a patent should be granted. If a doctorate is needed, can the USPTO sustain that? There is no way they could hire enough good people for every field. The people they would need are the people who should be out inventing. Maybe patents on IP have become impossible. Now there is a brave new world for you. I'm no rabid slashdot IP ranter either (you can be the judge though). I support a good patent system. But this article got me wondering if it is possible anymore.

    • It used to be that someone with a B.S. degree had a good chance of deciding whether or not a patent should be granted. If a doctorate is needed, can the USPTO sustain that? There is no way they could hire enough good people for every field. The people they would need are the people who should be out inventing.

      I'm sorry but I disagree with your last sentence. I think the patent office needs some intelligent people with critical minds and willingness to rapidly come up to speed on some new technology that they aren't familiar with. I would imagine that being an inventor requires a whole different set of intellectual skills. They have to be sharp also but rather than being critical, they need to be overly creative and imaginative. Whereas a patent reviewer should be good at identifying what's been done before, the inventor has to create something that hasn't been done before. I don't think that stocking the patent office full of excellent reviewers would hurt our nations ability to innovate.

      GMD

  • ..once someone tried to pull this [fark.com] off. Parents can be utterly stupid sometimes.

  • Not trying to troll but... (Score:3, Insightful)

    by pinkpineapple ( 173261 ) on Friday June 14, 2002 @04:54PM (#3703954) Homepage
    Explain to me how a company with programmers on its payrool, and that supports open source can protect itself against code/ideas thieves if they don't patent their ideas? I just try really hard to understand what is the right balance between using open source to free users from proprietary software and still being able to have some ways of making a buck or two by protecting ideas. Very curious about you guys's answers.

    PPA, the girl next door.
    • I don't feel the "group think" is advocating the complete deconstruction of the patent system. Rather, we're calling for a responsible and competent patent office. For example, I dare you to defend (I wish I had bookmarked the link into the USTPO) a patent I just read over syntax highlighting in document editors. We are to believe that highlighting syntax in my C++ editor is so innovative that this one company can now bring litigation upon any programmer who might have implemented this feature in their application. I consider that gross negligence of the patent office (after all, I don't fault the patent submitter for taking advantage of the system... companies will always acted in an underhanded manner as long as they are allowed to).

    • No patents? No problem. (Score:4, Insightful)

      by ChaosDiscordSimple ( 41155 ) on Friday June 14, 2002 @05:33PM (#3704130) Homepage
      Explain to me how a company with programmers on its payrool, and that supports open source can protect itself against code/ideas thieves if they don't patent their ideas? I just try really hard to understand what is the right balance between using open source to free users from proprietary software and still being able to have some ways of making a buck or two by protecting ideas.

      The first part of the answer is: most companies with programmers on the payroll don't make any money selling the software or enforcing patents. Most software is developed for in house use or to solve a particular problem for a specific customer. So only the minority of companies need to worry about this at all.

      If you're releasing under the GPL, your competitors will be unlikely to take your source. If they do, they either have to release their source back to you so you can take their improvements, or they're infringing copyright and you can sue them.

      As for "stealing ideas," an even smaller number of companies develop any ideas worth patenting. Most software which is sold uses well understood, non-patentable techniques.

      As for stealing your ideas, so what? Companies like Cygnus and Red Hat managed to do alot of business selling a product that wasn't patented. Only recently did Red Hat start getting defensive patents. There are other things to sell beyond a monopoly on an idea. Most notably, if you had the idea first and developed it to fruition first. Who is going to be able to have the first to market advantage? You. Who is going to be in the best position to push the idea to its limits and maintain the cutting edge? You.

      Will the elimination of software patents reduce the profitability of some software companies? Certainly. But it will be a very small number of companies. Those companies will still have some advantages in the market. And if the market grows and competition increases as a result, maybe it's a good idea.

  • I have a patent on the obligatory posting of funny patent posts on slashdot. It also appears that the same patent also covers recursion. All Lisp users, prepare to empty your bank accounts.

  • Well this seems to be obvious (Score:3, Insightful)

    by sielwolf ( 246764 ) on Friday June 14, 2002 @04:57PM (#3703968) Homepage Journal
    Isn't this always the problem? I mean, every problem? We can't live without something, but we can't have too much of it: Patents, seratonin, oxygen, laws, protein, etc, etc, etc. Hell, probably half of the discussions on Slashdot could be resolved by realizing that a middle ground equalibrium point needs to be reached.

    Sadly every time a new subject is broached, two factions arise with the same redundant "yes but" arguments. And you always have the brave few trying to reconcile everything. But it's always pointless. After a point all the damn DeCSS/MPAA/RIAA/DMCA topics look the same.

    The core of the problem: there is no concrete value of optimality that can be stated that is true in all infinite cases.

    Examples:
    How many patents should we allow?
    How much protein should we eat a day?
    How many rights does a corporation have?
    • The core of the problem: there is no concrete value of optimality that can be stated that is true in all infinite cases.
      I wholeheartedly agree, however, the reason these issues are becoming so pressing these days is because the rate at which patent saturation is stifling innovation is increasing geometrically. For one thing computer code has a variety of attributes that were unforeseen 100 years ago:
      • Freely duplicable
      • Potentially short span between conception and implementation
      • Highly reusable
      • Highly expandable
      I am a fiscal conservative, and I love the elegance of the Free Market system, but it's based on assumptions of the Industrial Age. Our economic system is splitting apart at the seams trying to reconcile all the implications of digital data and communications.

      While you are right that there is no concrete optimal value (for anything really), our system will remain skewed until we figure out a more effective method of rewarding contribution to society rather than rewarding legal expertise and clever marketing.

      For the love of America, politicians better wake up to this problem, because otherwise all the creative minds who are responsible for true innovation will all move overseas where they won't be squashed by huge corporations.

  • The article is quite silly.
    If you have a lot of patents - this is good from your point of view since you can generate revenue and sue would-be imitators.
    If you don't have a lot of patents - this is bad from your point of view since you will get your ass sued.
    Is this the author's intended message?
    If not - what is the point of his article?
  • IBM uses more than just patents to take out the competition. They also like to place moles into their competitors, such as Carly Fiorina at HP. They want a monopoly. Microsoft arent the only Borg! http://www.uncoveror.com/fiorina.htm

  • What is that toxicologists say? Something like "the poison's in the dosage."

    It's kind of like that with patents. I work for a small engineering R&D company, and if we couldn't patent what we developed we just couldn't develop it. But too many patents, and future innovation (ours included) is stifled.

    By the way there are lots of other problems with the patent system. For example, the way the system is set up it tends to discourage collaboration, e.g. between private sector and universities by making the "who owns what IP" so convoluted as to price it out of feasibility for small companies.

  • Steps:
    1. Get a patent on the process of pattenting things
    2. Charge anyone who infringes on your patent $500 million
    3. Except for those patents you deam to be worthwhile, they get by for free
    4. Get rich AND fix things!

  • Two words (Score:2, Troll)

    by pete-classic ( 75983 )
    loser pays.

    -Peter

  • Too many patents are worse than too few. (Score:3, Insightful)

    by HiThere ( 15173 ) <charleshixsn@@@earthlink...net> on Friday June 14, 2002 @05:15PM (#3704043)
    Actually, too many patents are **WORSE** than too few. Especially if they are broadly interpreted. Especially if they are expensive in time and money to challenge.

    Most of the patents that I've encountered recently seem to be of the sort that violate the basics of patent law. Prior art, trivially obvious, etc. But nobody can challenge them because it's too expensive. It can tie you up for YEARS, even if you can afford it (and we're talking millions here, when you count the appeals and all).

    Plus, of course, you don't know *when* they will decide to drop the shoe on you. And when they do, if they win they'll be able to collect all of your profits, and then some, as damages. Unless you devote the time and effort to fight them at a time of their choosing, and frequently in a court of their choosing (though that's a bit limited).

    The patent system is so broken that we would be far better off without any patents at all. It needs to be started from scratch, and not have *ANY* of the patent lawyers or members of patent cartels be allowed to take part in the redrafting of the laws. (Yeah, fat chance, I know. But that's what's needed.)
  • I don't think there's any doubt in anyone's mind who knows anything about the situation but that our uncritical and over-generous patent system needs serious reviewal. Likewise the overly-broad and overly-long copyright system. The matter of EULAs hasn't been addressed at all in a legal sense. Nor have potentially discriminatory and damaging region locking and copy protection schemes.

    What is needed now is for congress, the courts, business, or the people to take a long hard look at the situation and make some changes for the better, but I don't see anyone moving on these issues individually or as aggregate. And even if they were, there's a serious possibility it could just be made worse. Anyone have any ideas?

  • The problem is duration, not quantity (Score:5, Insightful)

    by Sloppy ( 14984 ) on Friday June 14, 2002 @05:46PM (#3704217) Homepage Journal

    IMHO, the biggest (perhaps the only?) problem with patents, is that the duration is not a function of the development cost. If a company really does spent a gazillion dollars developing something, then maybe a 20 year monopoly makes sense. Or maybe 40 years. Or maybe one year. But that's not how the system works.

    And that's reason software guys, in particular, bitch about patents so much. (And it's not just Free Software guys. Commercial developers of less-than-megacorp size are going to tend to hate patents as well.) We happen to work in a realm where development is so ridiculously cheap, that the arbitrary hard-coded duration is completely inappropriate and senseless.

    • I've often thought along these lines, but I don't think a "scaled" approach would really work for most patents. If you made the power of a patent proportional to the R&D cost to invent it, then every company would just cook their books and claim that each and every little device cost $billions...

      I do, however, think that certain specific areas could benefit from more or less powerful patents. I know that some kinds of drugs (eg for rare diseases) wouldn't be profitable enough under the current system for companies to justify developing them. Perhaps a special long-term patent could be granted to encourage research into these medicines... And on the other hand, 20 years is way too long for a patent on a software algorithm or method of business...
    • It's shouldn't be a function of "development costs" either. I can claim to "invent" one click shopping with $1000000 of research spent on twinkies. Who cares. Effort in itself is not an indication of value. Patent durations need to be tied to the rate of development of the industry/field they are in. Software patent? Fine. 1 or 2 years. Business patent? Ok, maybe 1 year for you.

  • See the Violence inherent in the system! (Score:3, Funny)

    by Gorbie ( 101704 ) on Friday June 14, 2002 @06:02PM (#3704291) Journal
    While the slashcode wouldnb't let me post the transcript...go HERE and get the whole text!

    http://www.intriguing.com/mp/_scripts/peasant.tx t

  • The Tale is True (Score:5, Informative)

    by youngsd ( 39343 ) on Friday June 14, 2002 @06:11PM (#3704356)

    Before coming to my senses, I was a patent attorney. The story described in the article where IBM was on a shakedown mission rings true. I have seen both IBM and Lucent use exactly this technique many times (including with clients of mine).

    They don't really mind when you show them that your client doesn't infringe. They are perfectly willing to go get another bunch of patents and make you go through those. Understand what is going on here: the patent attorneys take a lot of time going through all these patents to show that they don't apply. Lawyers are expensive -- eventually the client realizes that IBM or Lucent isn't going away, and they pay up. Mind you, in all of the cases I have direct knowledge of, there was never any reason to believe that any of the patents were infringed. They seemed to be a random assortment that were generally in the same technical field as the victim company. But the result is always the same -- a payoff to the 800 pound gorilla.

    It is sick, but true.

    By the way, the author of the article used to work at the firm where I got my start (Fenwick & West). He got booted for being too much of an asshole -- and among lawyers, that is saying a lot. Wired did a cover story on him back around '97.

    -Steve

  • Self correcting? Nope. (Score:3, Insightful)

    by Selanit ( 192811 ) on Friday June 14, 2002 @06:12PM (#3704357)
    Reading the article, it occurred to me that this might be a self-correcting problem; but then I thought a bit more and decided it wasn't.

    My reasoning went like this: IIRC, patents granted in the U.S. provide protection from competition for 11 years, and may be renewed, but not indefinitely; hence the Unisys patent on LZW compression (used in .gif files) was filed in the mid-eighties, and will be expiring in another couple of years.

    Once a patent has expired, that's it -- you can't re-patent it, and neither can anyone else. So logically, if people are currently filing zillions of frivolous patents now, that means in twenty years it will become considerably more difficult to file frivolous patents.

    But then I sat back and thought "No, in twenty years they'll be filing a whole new set of frivolous patents on technologies that don't yet exist; and nobody will care about all those frivolous patents that they filed way-back-when."

    A problem like this -- too many patents filed -- would be self correcting in an era with a more stable technological basis. When the innovation rate is slow it's a lot easier to make a patenting system work well; incremental changes are a whole lot easier to evaluate for patentability. This is why the USPTO did so well for its first couple of hundred years; innovation was definitely going on, and fairly rapidly compared to historical levels (eg the Middle Ages), but it was still occurring at a manageable pace. The car fulfills the same function as a cart; light bulbs are a light source, just like candles or lanterns. The technologies seen in the first couple of centuries of American history were, for the most part, logical extensions of and replacements for pre-existing devices.

    But all that began to change when the pace of innovation really picked up. It's hard to assign a date, but for convenience you might pick the last years of World War II as the beginning of the rapid increase in the pace of innovation. Even then, it wasn't so bad at first. But as the rate of innovation picked up, two factors were greatly exacerbated: 1) the complexity of new devices, and 2) the increasing prevalence of new devices with little or no ancestral devices. Television, for example: a television is not only considerably more complex than it closest pre-existing analogue, the radio, but also performs a previously unknown function -- the transmission of images over distance. Evaluating the originality of the first TV is not hard; but what about all the subsidiary patents that soon follow? Patents on improved antennae and cathode ray tubes, channel selectors and so on. To seriously evaluate all of those, you basically need to be an electrical engineer, with lots of time to study each new application.

    But when you're getting dozens of patents a day, and you have the same size staff as you had before, and the applications you get increasingly arcane, your ability to fairly evaluate each new app goes down the drain under the workload.

    The current pace of innovation cannot be sustained indefinitely; eventually our tech base will settle down again. In the meantime, we need two things: more specialists at the USPTO charged with evaluating patents in a particular field, and stricter standards for what is patentable. Business methods should not be patentable, nor should software -- or compression algorithms like the LZW one mentiond above.

    Unfortunately, these reforms are going to be difficult to implement. Stricter patent standards will not be practical until we have more specialists to fairly evaluate the influx of arcane high-tech patents. Unfortunately, those specialists are mostly the ones applying for patents. You can make a heck of a lot more money by getting patents than by granting them. In order to attract the specialists it needs, the USPTO is going to have to offer competitive salaries; and that, I think is going to take an act of God. Chances are slim to none that Congress would raise their budget without a pressing political reason, and the only other source of cash are the application fees and maintenance fees. Increasing the budget by soliciting and granting more patents would simply worsen the problem we're trying to avoid in the first place.

    I sure hope this gets worked out, but I predict that the USPTO will continue more or less as it has been for the forseeable future.
    • Once a patent has expired, that's it -- you can't re-patent it, and neither can anyone else. So logically, if people are currently filing zillions of frivolous patents now, that means in twenty years it will become considerably more difficult to file frivolous patents.

      But then I sat back and thought "No, in twenty years they'll be filing a whole new set of frivolous patents on technologies that don't yet exist; and nobody will care about all those frivolous patents that they filed way-back-when."

      You are absolutely right, but you don't go far enough. Frivolous patents will be filed for (and granted!) on the same invention again and again. This is very common practice in the pharamceutical industry, where a slightly modified version of a drug (perhaps with a new coating) is granted a new, broad patent which they can then use to extort money from or even completely shut down attempts at making a generic version of the old (now patent-expired) drug.

      This practice is not limited to the pharmaceutical field, BTW, that is merely the most widely known example (and most potent, since people's lives are affected and, quite possibly ended, as a result).

  • Similar problems with the earloy film industry. (Score:4, Interesting)

    by gdyas ( 240438 ) on Friday June 14, 2002 @06:13PM (#3704366) Homepage

    I'm currently studying film history, and it's interesting to see how similar patent issues that effect the technology were causing problems on the technology use during the early days of cinema.

    By 1907, Edison and his Vitascope (which BTW he did NOT invent, but licensed with Thomas Arnat et al) had alot of patents on movie camera & projector technology, including the crucial "latham loop" that relieved tension in the film. Since 1897, Edison had sought to force competitors out of business using these patents. One company, American Mutoscope & Biograph (AM&B) refused to cooperate, and won against Edison in 1908. Edison, refusing to give up, continued to sue AM&B based on the latham loop. The 2 parties negotiated a settlement, forming the Motion Picture Patents Company (MPPC) in 1908, headed by Edison, AM&B, and a number of other smaller movie companies. The purpose of the MPPC was two-fold. First, to prevent the entry to market of new competitors to the field, and second, to limit encroachment of foreign films on the US market. It was collusive protectionism all the way -- the formation of a self-perpetuating oligopoly. With the patents the MPPC held, anyone who picked up a camera to make a film had to pay them or be sued. Ditto for exhibitors, 'cause the MPPC had patents on projectors as well.

    Once they'd solidified their hold on projection & filming, they went for distribution, forming the General Film Company (GFC) in 1910. The GFC was the sole contractor for all MPPC companies' films. With this move, the only place to go for movies was the MPPC/GFC, controlled by the oligopolists.

    In 1912 the US gov't finally began going after the MPPC as an illegal trust. They won in 1915 & broke it up, invalidating a number of the patents in the process, with the resulting companies devolving into the number of smaller movie studios we know from the 20's through the middle of the century. In the end, what was lost? Nothing less than all of the innovation small players could have brought to the technical end of the movie industry in its infancy. That's the problem with such tight patent restrictions in nascent technology -- the first out of the gate, not the best, tends to win.

  • Clearly "Too many" patents are bad, as are "Too few". Thats what "Too many" and "Too few" mean. Its like when someone says "Too much of that is bad for you". Of course "Too much" is bad for you. That's what "Too much" means - that quantity that is bad for you.

    Baz

  • Let's apply Moore's Law to tech patents (Score:4, Funny)

    by wytcld ( 179112 ) on Friday June 14, 2002 @07:34PM (#3704763) Homepage
    Let's face it, new tech both pays off faster - if it's any good - and needs to be supplanted faster. So let's cut in half the patent term for computer-related patents with each Moore iteration. Boy will that be a spur to innovation! Get it out this year 'cause next year you won't own it for as long, if you don't file 'til then.

  • IBM obtained a software patent essentially covering a piece of software I had a part in writing. They obtained it several years after the product was in common use. So far, they have not attempted to exercise their patent (on us at least.) This is a common tactic by companies both large and small. [slashdot.org]

    The bulk of the problem is that patent reviewers tend not to have the technical expertise to know whether an idea is obvious or not. They also tend not to be well versed in what prior art may exist and where they should look.

    I work in the sciences. When I attempt to publish my work, the work is reviewed by my peers. When I request funding, my proposal ir reviewed by my peers. My work is specialized enough that the people that review my work are often my direct competitors. The flip side is that I get to review the papers and proposals of my competitors.

    I propose the same method be used to approve patents. Three random reviewers should be selected from a group of people who work in the industry or associated academic fields. If two of three can agree that the work is deserving of a patent, the patent should be granted. If not, it should be rejected. Regardless, following review the application and the review statements and the identities of the reviewers should be made public.

  • The article made it clear -- patents have an external social cost (such as lawsuits, courts, USPTO, engineering time lost, licensing meetings, reinvention of the wheel, prisons, police, etc.).

    So, why not tax patents annually, such as real estate is taxed annually, to help society pay those external costs? Patents could be taxes at 5% of the self-assessed value of the patent, with the proviso that anyone wanting to have the patent put into the public domain could pay the current year's self-assessed value directly to the patent holder (or indirectly through the U.S. Treasury). Then, anyone sitting on a bogus patent would have to pay yearly costs based on their speculation, and thus deterring patent squatting, and there would be a way for industries to buy out a patent holder without allowing them to monopolize an industry (such as one poster showed happened with Edison and the film industry). Essentially, this is saying patent holders can't have it both ways. If they say they have something valuable, they should pay taxes on it; if it is not valuable, they should not be able to use it to prevent others from innovating.

    The same sort of logic can be used to tax copyrights and other forms of so-called "intellectual property" as well. Essentially, a tax on intellectual property turns almost all bogus patents and indefinite copyrights into hot potatoes that people would have to make serious business decisions about -- keep it out of the public domain at some annual cost, or let it go.

  • Well, I'm pretty sure that a lot of people already know this, but as far as the quality of patents go, they simply stink.

    While I don't remember what date the special was aired (sometime in 2001), NBC (in the United States) aired a special on the USPTO and how patent examiners are given performance pay. The third paragraph in this article [cam.ac.uk] supports this fact. While the quality of a patent is not measurable, the quantity of patents approved by examiners is.

    Since the USPTO does provide performance pay due to a lack of examiners, they have basically created their own problem. Since everything under the sun is patentable (including restaurants attached to hotels [164.195.100.11] and bra size measurements [164.195.100.11]), the examiners have basically build themselves a self-reinforcing problem that continually encourages them to rubberstamps patents, regardless of what the patent application is for.

    I'm not at all surprised at what gets through the USPTO these days. Simply put, the excessive number of patents only serves the examiners and the legal system.

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