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Do Patents Still Work?
from the stuff-to-think-about dept.
"Here is my real question: What if we stopped issuing new patents in the United States: would 'the progress of science and useful arts' suffer? Prior to the advent of the Internet and the success of the Open Source movement, I would have said yes. Now I am not so certain. What do you think?"
Of course, these days, patents are used to prevent innovation more than anything else. I find this rather ironic.
More hilarous than ironic, this gem from Forge illustrates what can happen when the Patent system gets slightly out of control: "Hyperspace communications has been patented and is now my nominee for strangest patent. According to this story on the Register someone has not only "invented" hyperspace but has also figured out how to use it for transmitting data faster than light. My question is, does a fictional work count as "prior art"? To add to this concept Arthur C. Clarke is widely credited with having invented the communications satellite. The infamous band of space in which geostationary satellites orbit is known as "the Clarke Belt" in his honor. However he once said in an interview that he might have patented the idea if it had occurred to him that someone might actually build such devices such a short time after his story."
The big question here is how can you patent something that hasn't been invented yet? It seems that I can conjure up any flight of fancy that might just have a passing chance at becoming truth, patent it and make that idea mine forevermore?
const submitted a question that offers a potential solution: "I'm interested whether the patent madness may be stopped by restricting the number of patents in addition to shortening their time. If only 100 patents will be granted each year for the computing industry, only significant advances will be patented and things like the now infamous one-click patent will not get through the jury of experts in the field. The progressive scheme may be like the following: 1 patent - 10 years; 10 patents - 3 years; 100 patents - 1 year." which would make getting patents more of a competition between implementations, and to compete for the protections offered by patents sounds like a fair way to "promote the progress" in any given market.
Patents promoting progress (Score:5)
It seems that the patent holder has too much control over how their patents are used. In the past this didn't matter so much. Producing a machine costs money. A small surcharge from the inventor of the machine wouldn't affect this significantly. If the inventor asks for a fair price then everybody's happy.
The system breaks down when the patent owner uses the patent to prevent competition. Either by refusing to let anyone use the technology, or by charging too much to allow certain groups to use it. Because software can be produced on a shoestring budget, the latter is often unintentionally the case.
It's not that patents aren't necessary... (Score:5)
Due to my research, I've looked at patents where they actually make sense; chemicals and chemical processing, in which the patent usually revolves around the composition of the catalyst used. Some of these are very narrow, but some cover huge numbers of possible compositions, as well as large numbers of possible elements to use. (Such as up to 20 metals as catalyst promotors.) This would be all well and good if their provided enough examples of these, but in most cases, only 2 to 3 examples are given, covering only a tiny amount of their 'composition space'. Sure, I know that one can extroplate that if platinum (a noble metal) works, then most likely other noble metals such as palladium will also work, but most of the metal selections don't have rhyme or reason-- they just take as many as possible.
This is part of what needs to de done: the reviewing of the patent. Often I read that the patent office is swapped, and they have to push patents through as fast as possible to achieve their required quota, and furthermore, especially for computer-based patents, the expertise is not there. One solution is to throw more money at the problem and get more patent people in place with more viable skills with newer patents, but that's only half the problem.
The other is the time factor. Earlier this century, when the speed of information transfer was limited to snail mail, telegraph, and the telephone, the disclosure of ideas would take a long time, and thus long times for the delays of patents was necessary. However, as we've got to television, satillite communications, the internet, and whatnot, information moves much much faster, and the same time that was required 100 yrs ago is not really needed. However, one must still considered that there are a considerable number of patents that come out on tangible, real, processes (such as chemical production); if the patent office was to shorten up the time scale too much, a competiting company can design and build a facility (which can take a few years) that uses a patents but turning it on the day after the patent lapses, and benefit from the findings of the other company without paying for it, which is highly uncompetitive to the entire field.
So the time of patents does need to be shorted but not too much; 17 yrs is currently too long for the e-commerce patents, but 5 yrs is too short for process patents. Furthermore, you cannot just catagorize patents into "short term" and "long term" ones; while you could easily seperate the patents of today into those two areas, how can you know that in the next few years someone will have a patent that could fall into both because of the thinning of the real and virtual worlds? The nature of the patent should grant it no special privaleges.
At this point I would argue 7 to 10 years for patents. It should be long enough for the patents that were truly put in place to be protected, but fast enough for the new types of patents to disappear quickly. But of course, if combine this with patent reform and a tightening of the review process, few "bogus" patents would be issued, and we would not have to wait 7 to 10 years for that bogus patent to elapse.
For a limited time (Score:3)
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Patents = funding model (Score:3)
There are many possible ways of funding research - public money, charity-type organizations, etc. However, the patent system overwhelms other funding models we might try because it creates the potential for such astronomical returns on investment. Other models can't compete.
Here is my alternative: set up a patent tax. It works just like a national sales tax. Any product that makes use of a patent has the patent tax applied to it. the proceeds from the patent tax go to the holder of the patent. In addition, NO ONE is restricted in any way from using patent technology. The patent tax could vary with each patent - that's detail that could be worked out in interesting ways.
I'll give an example of how this works - take the Amazon 1-click patent. If Amazon patents this under this patent tax, then any user who choses to use 1-click must pay the patent tax, whereas if they choose to order normally, they wouldn't. You can see how easily the market would determine the value of this patent - nobody would do it. The only thing Amazon has succeeded in doing by patenting 1-click is ensuring that no one will use 1-click. So, they probably would not have made such a ridiculous patent under this system.
Another example: Someone invents a pill that cures breast cancer. They patent the pill. Now, any company can manufacture the pill and sell it, so it's likely to be cheap, right off the bat, but there's the patent tax, of, say 100%. So, the patent holder makes a lot of money - even though others are allowed to sell their product. It probably makes economic sense for the patent holder NOT to make their own product, as they would make as much money off of others, without having to be a manufacturer.
In any case, I think we could get rid of patents, and we'd, as a society, just have to come up with different funding models. I think we could do that.
Are patents *in general* a bad idea? (Score:3)
We, as a community, tend to look at "patent" and see "software patent." A better question, when we talk about patent reform, is whether patents work in general. Yeah, they tend to be a bad idea when it comes to software, but in general, are they a bad idea?
We, as a community, need to take off the rose-colored Open Source glasses, and look at patents in a broader scope. Most of the patents that are issued every year have nothing to do with software. Many of them are not even related to technology. Before we start "reforming" patent law, maybe we should look at other areas that have a lot of patent activity.
I don't intend this as a flame! We hear about software patents all the time but there is definitely more to the patent picture.
darren
Cthulhu for President! [cthulhu.org]
patent "problem" is part of something much bigger (Score:5)
But these problems should be seen as part of a larger challenge facing intellectual property protections. The Napster and DMCA and DeCSS problems are all related to copyright - another form of intellectual property protection, which is challenged by our new information technologies' ease of dissemination.
Some people have called for major revisions to our copyright laws [techreview.com], and others (like Jeff Bezos and the people in the introduction above) have suggested that the patent system should face strict reforms.
These are sometimes extremely good suggestions, but we would do well to keep in mind the following:
2. We cannot just tinker with these systems, but must treat them with profound respect (even if they are broken [salon.com]) because huge amounts of money and acclaim could end up going to people who don't deserve them, while innovators who do deserve them could get screwed.
3. If we think of copyright and patent problems as parts of a larger set of intellectual property issues that need consideration, it will actually help avoid confusion -- and we will be more likely to convince others (read: legislators) that these issues deserve attention.
For more background on the patent problem, see James Gleick's superb piece, Patently Absurd [around.com] (NY Times, 12 Mar 00).
A. Keiper
The Center for the Study of Technology and Society [tecsoc.org]
Washington, D.C.
The other side of the coin (Score:3)
I will point out that even in our current system the megacorp will always win. I've personally worked at smaller companies that have had valid patents that were infrindged on by very large companies. All that happens is a bunch of lawyers sit in a meeting room and basically say "Yeah, we're pissing on your Patents, but we've looked at your finacials and you do not have the backing to sue us. Don't let the door hit you in the ass on the way out."
When you are a large company and have lawyers on staff it isn't hard to wage a patent war. If you're a small company you will be sucked dry by the lawyers.
It doesn't matter if you scrap the current system or keep using it. Money speaks in judicial system.
Original Patent System (Score:3)
In the 1700s, only a handful of patents were granted each year. The bestowing of a government monopoly was considered such an exceptional event that the Secretary of State personally approved each patent application.
As well, copyrights lasted for a relatively brief period of time, had to be registered by depositing an archival copy of the work, and had to be renewed or the copyright would expire.
Theory vs Reality. (Score:3)
Furthermore, the mere fact that the government grants a "monopoly" on the idea for 17 years, does not mean the holder enjoys any such protection. In the vast majority of cases, competitors come out with equivelent products without having to go through the patent. So, if the effective life of the patent is only 5 years (actually quite high in many areas), it is all that much more important that the inventor ramp up his profits at the outset. To provide a smooth (or flat) "patent tax" tax, or one that is set arbitrarily by the government, might prove harmfull in two ways. If reward (read: tax x usage) are too low at the outset, this will lower the incentive for the inventor. Second, if it is too low, it may discourage the competing companies from trying to come up with unique alternative solutions of their own. Instead, they just "license" it as your "reasonable" fee. All in all, it would create a pretty apathetic system...perhaps not quite as bad as no IP, but significantly worse than what we have now.
In closing, the patent system is more necessary than it ever was. Sure, there are some abuses, but it is blown out of proportion by slashdot users. Slashdot confuses the mere existence of a patent, with the ability to profit and enjoy that protection. The patent office has been flawed for years, but the test is not the patent office, it is the courts. In other words, the granting of a patent does not mean it holds up in the real world, so to blow a few odd patents up as proof that "innovation" is now impossible is simply not true. [Yes, I agree the patent office has serious flaws,
Re:Some of you sound like idiots! (Score:3)
judge: ignorance is no excuse. It is every man's duty to understand and obey the law.
me: Well judge.. let's get on with the trial.
judge: No. First, you must get a lawyer, as only a lawyer can truly understand the law.