Patents are about to become a bigger problem

http://ownlocal.com/newspaper-support-group/patents-are-about-to-become-a-bigger-problem/

95 52 15 years ago

suprasanna2• 15 years ago

I don't see how this isn't a bigger issue or hasn't been brought to light. As I understand it, large corporations (or anyone with the money, really) can simply file patents for future products they predict will come to market and then sue startups and entrepreneurs when they create the actual product.

Someone please tell me I'm misunderstanding this.

VladRussian• 15 years ago

yep, pretty much it.

The original idea of patents was along the lines: Person A develops a self propelled buggy moving with the speed faster than light. Without patent protection, there is a lot of incentive to keep the details of the technology secret. The patent protection would be awarded in exchange of him disclosing the details of the technology, thus enriching the human race's body of knowledge and furthering the technology advancement.

Modern day patent system - a Corporation A files a patent for the idea of a "self propelled buggy moving with the speed faster than light." Whoever comes with real implementation later, would be forced to pay license fee to the corporation or wouldn't be able to bring it to market. This is pretty much the innovation tax (though if a tax isn't extorted by a government then it is more correctly called extortion/racket).

jeremymims5• 15 years ago

The key point is that "first to file" doesn't actually honor the idea of invention. It honors the idea of filing the patent first. So, now it's a race to file instead of invent. Perhaps the patent system has behaved this way for some time, but it's codified now.

From wikipedia: "In a first-to-file system, also called "first inventor to file" system, the right to the grant of a patent for a given invention lies with the first person (the first inventor(s)) to file a patent application for protection of that invention, regardless of the date of actual invention."

ejames• 15 years ago

In theory, a patent is supposed to be specific enough that the patent itself accurately describes the object, to the extent that a reasonably knowledgeable person could actually manufacture the object using only the patent as a blueprint. In other words, you would not be able to write the patent application unless you had actually invented the object in question, because otherwise you wouldn't know how to describe the theoretical object well enough for a person to manufacture it. Therefore you cannot patent imaginary future inventions.

In practice, this rule is effective only to the extent that the Patent Office enforces it.

lmarinho• 15 years ago

Building on that, I pose a question. Has anyone here ever used a software patent as a reference to help solve a problem?

suprasanna2• 15 years ago

As you point out, the issue is that the UPO doesn't enforce that as rigidly as it should (or maybe, is reasonable to expect). As tjr pointed out in a separate thread, 'This American Life' did a great piece on software patents specifically, definitely worth a look if some of you are interested in learning more. Certainly gave me better perspective. http://www.fsf.org/blogs/community/tal-when-patents-attack

monochromatic12• 15 years ago

You aren't entitled to a patent unless your disclosure is specific and detailed enough to be enabling. If it's enabling (and novel, nonobvious, etc.), then why shouldn't you get a patent on it?

baguasquirrel• 15 years ago

What is the state of patent law, especially regarding software patents, across the world? If patents really are going to be a murder on innovation, then the least broken system should enjoy an advantage, no?

jeremymims5• 15 years ago

Keep in mind that the standard for "First to File" is actually present in much of the rest of the world. Large US corporations have argued that this switch will make our companies more competitive. What's happened is that American companies see a unified global patent system eventually taking hold and they want to use their resource advantage to dominate a future marketplace. They're primarily concerned with establishing market leadership lock in. Innovation as a desired outcome for the advancement of mankind couldn't be further from their thought process.

lhnn• 15 years ago

It's hard to have a lot of hope for the United States.

monochromatic12• 15 years ago

If it makes you feel any better, this article really misunderstands a lot of things.

ChuckMcM• 15 years ago

Now if they would combine expiration date with file date we'd be done.

The reasoning is fairly simple, patents expire and the idea becomes public domain, that is why, starting in 2015 as the great patent binge of late 90's starts expiring, through 2025, all of that 'crap' that you see as being patented will become public domain. Unlike copyright there will be no restriction on you using it. (like you can write your own RSA encryption code now without fear of being sued)

Also during that time there has been some progress made on getting better examiners into the office since we're starting to see examiners who actually used computers in high school versus the ones in 1995 who had just heard about them and never actually used one.

So you file as soon as you can, and if its a spurious filing you have exactly 20 years (if we could have them expire on file+20) to make the product work and to ship it with patent protection. Alternatively, we go back to a requirement that the invention must have an exemplar which the PTO can examine with the application. That however was originally eliminated because it was slowing everything down. (although some of the model work is simply stunning, check out the museum some time).

In the mean time I'm gonna watch all my old Star Trek episodes and file patents on all that stuff :-)

yason2• 15 years ago

I've often wondered what's the commercial and political mechanism that controls patent legislation and the lifetime of a patent. I mean, we're still at a mere 17 years with patents but Mickey Mouse is at roughly 95 years by now. Why is it worth lobbying for copyright extensions but not patent lifetime extensions?

bluedanieru• 15 years ago

Just a guess, but doing what you describe to patent law would seriously and obviously harm the economy and isn't politically feasible, whereas insane copyright terms just give the assholes at Disney a license to print money, some of which finds its way back to the very corrupt bastards who extended the term in the first place.

Put another way, copyright as it is currently conceived degrades the creative space, but it isn't directly taking food out of people's mouths (it is, but in a less obvious way, and no one gives a shit about artists anyway).

yason2• 15 years ago

I could imagine that myself, too.

It also means everyone knows patents are bullshit and collectively the companies don't want any of it but since we've got it established already and it's really hard to shut down the companies know they need to play ball yet do nothing in favor of patents.

tzs4• 15 years ago

The author is deeply confused. This part is simply incorrect:

   See, “First to File” doesn’t require that you build
   anything at all, that you have an intention to build
   something, or that you’re getting a patent on something
   that hasn’t, you know, already been invented by someone
   who couldn’t afford the patent.

First to file makes no changes to any of that. It all remains exactly the same as it was under first to invent.

All that first to file changes is what happens when two (or more) separate inventors, who meet all of the statutory requirements for patentability (e.g., novelty, utility, non-obviousnous, reduction to practice and enablement), both file for patents.

Under first to invent, you try to figure out when each inventor actually started working on reducing the invention to practice (just having the idea is not enough). You find the earliest time T such that the inventor was working diligently on reduction to practice between T and the time of the patent application. T is that inventors invention date. Lowest date wins.

Under first to file, you look at the date on the application. Lowest date wins.

First to invent is problematic because it comes down to comparing two or more vague dates, and there can be a lot of subjectivity involved, such as deciding whether or not an inventor was working diligently or not toward reduction to practice.

jeremymims5• 15 years ago

As the author, I do appreciate that someone thinks I'm confused, but this sentence is hardly the point of my argument. My point is that large corporations are at an even larger advantage with this system and that it hurts entrepreneurs. What has already been a tilted playing field will become even more so.

The key with "First to Invent" is that someone could demonstrate that they had invented something but not actually patented it previously. For instance, if you came up with a novel software process, didn't patent it, and went about your business, it should theoretically be harder for another company to come along and patent your work. Since our patent system is broken, it hasn't always (maybe usually) worked that way. With "First to File" all you need to do is be first to file. And at a mere $15k to $50k to file, this is an undue burden on startups who are inventing things. As the author, I do appreciate that someone thinks I'm confused, but this sentence is hardly the point of my argument. My point is that large corporations are at an even larger advantage with this system and that it hurts entrepreneurs. What has already been a tilted playing field will become even more so.

edit: Because some people clearly don't want to understand the point here, there are several steps (lawyers, patent searches, etc.) that cost you money before you can file. This is included in the $15k to $50k I'm talking about.

monochromatic12• 15 years ago

> For instance, if you came up with a novel software process, didn't patent it, and went about your business, it should theoretically be harder for another company to come along and patent your work.

First to file doesn't change this. Prior art is still prior art.

This is slightly simplified, but here's the gist. The only change is when Inventor A comes up with an idea first, Inventor B comes up with the same idea (independently!) later, and they both file for patents, but Inventor B has the earlier filing date. Under the old law, Inventor A wins; under the new law, Inventor B wins.

If you're not in that situation, first to file doesn't change things.

cube132• 15 years ago

>For instance, if you came up with a novel software process, didn't patent it, and went about your business, it should theoretically be harder for another company to come along and patent your work. Since our patent system is broken, it hasn't always (maybe usually) worked that way. With "First to File" all you need to do is be first to file. And at a mere $15k to $50k to file, this is an undue burden on startups who are inventing things.

Did you publish it? Was it put out into the public space? If so, it's prior art, and evidence that the patent should be invalid. This HAS NOT CHANGED.

If I make a piece of software, put it out for sale, then someone files a patent after my software has been out in the open, the patent is not new and novel. It should be thrown out.

Again, like tzs said, this only applies if two inventors invent something simultaneously. Under First to Invent, each inventor needs to prove that they thought of the invention before the other. Under first to file, the patent is granted to whoever patents it first.

tzs4• 15 years ago

> With "First to File" all you need to do is be first to file.

No. You have to invent, and then you can file. You seem to think that "first to file" removes the requirement for invention. It does not. It just changes the priority determination in the case where two independent inventors have both invented overlapping inventions.

WiseWeasel7• 15 years ago

The problem lies in the fact that an inventor no longer has a recourse to contest a patent lawsuit against him by showing evidence that the patented idea was implemented prior to the patent filing date (or before the determined invention date). This exposes all inventors to having their ideas copied and patented by others, drastically increasing the incentive to patent their own ideas on a continual basis. This has the effect of significantly increasing the total number of patents being filed.

monochromatic12• 15 years ago

This is not correct.

Natsu• 15 years ago

It's true that the system was broken before and will remain broken after this reform, but I don't see how that makes the author confused.

One might reasonably hope that a reform bill would contain more reform, after all, and one might legitimately criticize a reform bill for failing at its purpose.

WiseWeasel7• 15 years ago

On the plus side, it seems like only a small matter of time before this obviously broken system collapses under its own weight, and we're forced to do something slightly more sane instead.

Once the ensuing tidal wave of patent applications is upon us, the USPTO will have no choice but to drastically lower their (already depressingly low) standards for patent acceptance due to lack of resources available to check them, and the growing portion of corporate profits evaporating to legal costs will put pressure on some actual patent reform.

Personally, I am angered that inventors will lose a recourse to challenge individuals who file patents on their previous inventions, and I in no way condone breaking the system for honest businessmen in order to make a case for fixing it, but at least I can take some solace in the fact that it will be a quick demise, unless I'm missing something.

joe_the_user• 15 years ago

Uh yeah,

The US patent system will collapse under its own weight, about when the US health care system collapses under its own weight, the US education system collapses under its own weight, and while we're at it, the entire US collapses under its own weight.

I can imagine that but I don't think we should, uh wait, till then, considering doomed systems show a distressing ability to just keep going when people do nothing but wait for them to collapse...

monochromatic12• 15 years ago

> Once the ensuing tidal wave of patent applications is upon us, the USPTO will have no choice but to drastically lower their (already depressingly low) standards for patent acceptance

Or, you know, the backlog could just get bigger.

pavel_lishin• 15 years ago

> America’s most quintessential inventor did without them and thought they were foolish.

Right, but he also didn't care about selling his inventions to feed his family, having other sources of income. It's easy to give away something you don't need.

thyrsus2• 15 years ago

That might not be true: http://www.portfolio.com/news-markets/national-news/portfoli...

thyrsus2• 15 years ago

Entities like China that are less than assiduous in respecting patents are going to benefit enormously from the hobbling effect of U.S. patent litigation. I don't think it's a complete counterbalance to the lack of free information flow which generates opportunity for corruption, but we really shouldn't do this to ourselves.

linuxhansl• 15 years ago

I think we have generally mixed up "value" and "cost".

Patents are (or should be?) a legal construct providing a temporary monopoly on an invention to incentivize investment into (costly) research. I.e. protect the "cost" of an invention.

Cost, however, is not necessarily directly related to value.

Patents (imho) should not protect "value". If you have a great idea one morning, that might indeed be very valuable. But you would have had that idea regardless of whether its patentable or not, and society as a whole is not better served by granting monopolies on such ideas. Instead the market decides who builds the best product. Other IP protections such as Copyright are still crucial for this obviously.

In the end I think that (case) law usually reflects general trends in society. This is not a society of altruism (anymore) but a society of the mantra "take the money and run". Once or if that changes the law will eventually match that.

One way out of this mess is to document, publicly, every idea - however insignificant it might be. That way there will be prior art to everything that is obvious.

Patents are about to become a bigger problem

Related Stories