EFF: Tell Congress: We Can't Afford More Bad Patents

https://act.eff.org/action/tell-congress-we-can-t-afford-more-bad-patents

by camkego • 2 years ago

140 56 2 years ago

act.eff.org

ramshanker• 2 years ago

I am of the opinion that instead of letting legaleses define good/bad patent, we should let the economics work it out. Mandate patent filers to declare a public flat license fee . Along with annual recurring patent-maintenance tax to government as some X% of that declared fee.

Market will decide which patents are worth maintaining for 20 years, and government get proportional revenue as well.

marcjuul• 2 years ago

While that's an interesting thought experiment and there are definitely good reasons to make it more difficult to sit on an unused patent, it's already difficult enough for lone inventors and small organizations to get and keep a patent. This would require everyone to either have a lot of money up front to pay the maintenance tax or keep the license fees low thus ensuring that they will never have a lot of money.

fyrn_• 2 years ago

That puts all the power over patents in the hands of those with deep pockets. They would be able to directly pay to prevent competition. It's insane to eliminate limits on what could be patented while doing that.

They could fund the keep-away of basic things like "ordering x on your phone" with the proceeds from being the only actor allowed to do that. Fundamentally exploitable system incentives.

CobrastanJorji• 2 years ago

Your solution seems to be addressed at solving a "there are too many patents because they're cheap to acquire" problem, but that's not a problem. Patents are expensive to acquire already. Bad patents don't lack value. Rather, they offer insane value for little effort if you guess the right thing to patent.

Look at the EFF's example. Say it's 1987, you've been playing with AOL for a bit, and you realize that someone might want to use a computer to do stuff like ordering pizza deliveries. You file a patent where your "invention" is "okay it's like pizza ordering on the phone but you do it with a computer instead." Then you pass it through a lawyer who draws up some diagrams to make it look like it's an invention, and boom, patent US4797818A is granted and you now control the entire online food delivery ecosystem until 2007. Oh, but then someone else says "wait, what if the customer does that but USES A PHONE." Well, now they own that for 20 years, so now you both can arbitrarily limit this space. Great. Oh, but now swomeone says "oh, but what if you do this and also the food is displayed IN CATEGORIES!" Well now he's got a patent, too.

It's madness. The problem isn't that it's too cheap to acquire and maintain these. The problem is that these are so obvious that they are no longer inventions.

throwaway484762• 2 years ago

One issue is that you don't have to have a prototype to get a patent. Except perpetual motion machines, too many people tried.

cjfd2• 2 years ago

I declare that I patented human breathing. Every human who is breathing is to pay me the, really very cheap, fee of 1 cent per day. O there is a tax? So now I only get half a cent per day per living being.

gruez8• 2 years ago

You probably joking, but that wouldn't work because of https://en.wikipedia.org/wiki/Prior_art. All the "bad" patents were probably novel at the time they filed. That's not the issue. The issue is that they're for arguably obvious stuff like "[x] but on internet/phone" that the sibling commenter is talking about.

Timwi2• 2 years ago

Or we could just abolish the concept of patents entirely. All they do is stifle progress so that somebody can make money at an unfair advantage to everyone else.

gruez8• 2 years ago

All they do is stifle progress so that somebody can make money at an unfair advantage to everyone else.

You don't see any problem with pouring huge sums of money into developing something, only for a competitor to copy your idea and undercut you? As an inventor, why would I bother putting in all that effort knowing that would happen?

Ygg2• 2 years ago

Make sure keeping a patent is prohibitively expensive. Start with some trivial price y, like say a dollar. Then make every year cost equal to `(y*x)!` where x is the year/month/time period and `!` is the factorial function.

Any patent worth the upkeep for first 10 years is probably worth keeping it.

gruez8• 2 years ago

How does this work for patents like drugs or whatever, which are very expensive to develop/bring to market?

vlovich123• 2 years ago

But some companies evolve on top of their patents and use them to obtain a competitive moat over a period of time to outcompete larger players. If the patents were available for a flat license fee, you’d penalize patent innovation by smaller entities as bigger entities could pay the flat license fee and copy the patent. So smaller players will either just keep it a trade secret and hope that no one finds out (which theoretically hurts society due to lack of published secrets) or have to hope they can monetize their patent super fast & find someone with really deep pockets to fund that work.

And as mentioned, patents are super expensive. From talking to some people it varies significantly depending on your details but probably starting is ~10-20k per patent.

anotherbadlogin• 2 years ago

Abolish software and "business-method" patents.

Until that's done, patent "reform" is a sham.

adrian_b2• 2 years ago

What is the most egregious about software patents is that they work only because in the first few decades of software development no patents could be obtained for software.

Anyone who patents now some kind of software algorithm is able to write any practical implementation of the patented algorithm only by incorporating many techniques that have been invented earlier, but they have never been patented, even if typically they would have had much better reasons to be granted a patent than the newly patented algorithm.

If it would have been possible to patent software since the beginning, the software industry could never have existed, due to mutual destruction that would have blocked any development.

johnnyanmac• 2 years ago

why shouldn't software be patentable?

themoonisachees2• 2 years ago

Because software is incredibly elastic, which heavily blurs the line on what is and isn't a new invention. It is also nebulous, which means that it's "easy" to obtain a patent for a system that seems reasonable at first, but then decide "actually I meant all of this other stuff too" and on paper the patent does apply to all the other stuff too, because short of submitting the exact code to be patented you pretty much always get to do this.

Ekaros• 2 years ago

On some level I think some things make sense to patent. And they are more algorithms. Let's say compression of file or image or stream. Sure go ahead and give those a patent. If they are superior someone will pay license fee.

On other hand idea of compressing something should not be patentable. If someone can read few lines summary of patent and come up with solution that does same thing, but might not be interoperable no you should not get patent.

blagie4• 2 years ago

Personally, I would:

1) Limit the number of patents granted every year. Patents worked fine 100 years ago, when there were fewer of them. The standards for things like "non-obvious" should increase to keep a cap.

2) Ban patents on anything which only became possible in the past ≈10 years for reasons unrelated to the filer. E.g. no patents on anything which requires ChatGPT until ≈2030, so there is time for prior art to build up and to learn what's obvious.

3) Change patent duration by domain. 20 year software patents make no sense (5 year ones seem okay). 5 year patents on e.g. aerospace seem to make no sense (20 year ones seem okay).

4) Make an open process where anyone can cheaply and easily attach prior art to a patent and try to invalidate it.

5) First-to-invent / first-to-file makes no sense, as it seems that if two people invented the same thing at the same time, that should set a strong presumption of "obvious." If two people file for the same patent, unless one is very clearly first in all respects, each should act as prior art for the other.

vladms2• 2 years ago

You remind me of https://xkcd.com/592/

For every point, you have to take a subjective decision that is in no way trivial.

1) Additionally to what happens today now you need to compare patents (how would you increase the cap for non obvious if you can't say A is more non obvious than B)

2) Additionally to what happens today now you need to decide if something was possible 9 years ago. Our search tools are not that great at "present me the image of 9 years ago" and even then not everything is public, etc.

3) Additionally to what happens today now you will have same patent applied to multiple domains with small variations.

4) Yet another process, which now happens in court if someone thinks the patent must be defended (a granted patent does not mean it can not be later invalidated)

5) How do you decide very clearly first ? No improvement versus today.

I do agree with you though that the current system is not ideal. But a simple change like reduce to 10 years the duration might be the best next step (and while I like 5 years idea, making big jumps has more chance of push-backs from invested actors)

sebstefan• 2 years ago

I thought you'd be linking to 793

https://xkcd.com/793/

blagie4• 2 years ago

For every point, you have to take a subjective decision that is in no way trivial.

Have you ever been through a non-trivial patent filing process? Any other non-trivial administrative law case? A non-trivial court case?

This is precisely why these processes are so complicated, both under the rules I proposed and the rules currently in place. It's why we have judges and lawyers. The way policy happens is people float ideas, much as I did, and as other people have. Those get discussed at a high level. If something looks reasonable, people do deep dives and work out the details. Those are further smoothed over as laws translate into regulations, and the contours are defined in case law.

I don't think your comment reflects an understanding of the problem we're trying to solve, which is narrowly patent trolls, and broadly, that it's impossible to do anything without inadvertently stepping on a dozen patents.

WE NEED FEWER PATENTS.

1) Additionally to what happens today now you need to compare patents (how would you increase the cap for non obvious if you can't say A is more non obvious than B)

You don't need to compare. The patent office administrative apparatus needs to adjust the bar each year. There's already a bar set by them. That's the point of delegating to an executive branch -- they can make changes like this one quickly.

2) Additionally to what happens today now you need to decide if something was possible 9 years ago. Our search tools are not that great at "present me the image of 9 years ago" and even then not everything is public, etc.

Same as prior art. A patent examiner looks and has a discussion with the patent filer. It can be invalidated in court.

3) Additionally to what happens today now you will have same patent applied to multiple domains with small variations.

Which I would like to reduce or eliminate. When LSA was invented, there was a swarm of patents applying it to every which domain, making it impossible to do much of anything.

4) Yet another process, which now happens in court if someone thinks the patent must be defended (a granted patent does not mean it can not be later invalidated)

With one difference -- and this was lack of clarity in my writing -- my process kicks in at the time a patent is filed. If I want to avoid patent trolls in my domain, I can set up a search for relevant patents.

5) How do you decide very clearly first ? No improvement versus today.

This is simple. I am switching from OR to AND. You have to be first-to-invent AND first-to-file. If you're first-to-invent, and I'm first-to-file, neither of us gets the patent.

Indeed, if I'm first-to-file, but you can show that you invented before I filed, no patent is granted.

The improvement is fewer patents.

flohofwoe2• 2 years ago

Patents worked fine 100 years ago, when there were fewer of them.

I don't think it's about the number of patents. In the distant past, patents were intended to allow individual inventors to monetize their invention for some time by selling licenses to companies.

Today, patents are mostly used as a weapon in corporate warfare and by patent trolls to extort money from companies, both a complete perversion of the original idea.

Not sure if it is possible to return to (and enforce) this original intent of protecting the individual inventor, but if not we should just get rid of the whole broken patent system in general.

mk893• 2 years ago

You can: increase the price for patenting something. Google will think twice before spending 100K for hello world. Patent trolls you'll always have, but you need to reduce them.

The system has to become again "healthy" to foster real innovation and competition, not a garbage bin to block each others.

ecocentrik• 2 years ago

If the system worked at all, an inventor could still make money selling IP weapons to corporations.

NeoTar2• 2 years ago

"First-to-invent / first-to-file makes no sense, as it seems that if two people invented the same thing at the same time, that should set a strong presumption of "obvious." If two people file for the same patent, unless one is very clearly first in all respects, each should act as prior art for the other. "

I think this is too much of a simplification. Imagine the case of blue LEDs. It was known that these would have a huge market, and there were probably 100 different research groups around the world spending millions of dollars and thousands of hours trying to determine how to make them commercially successfully - even with some early weak prototype and research papers. That's clearly not 'obvious'.

In our history, one team (well, really an individual) managed to perfect the process first, but it could easily have been two or more teams randomly hitting the same solution at almost the same time.

I'm not sure what the 'right' thing to do in that circumstance would be - award it to the team who happened to try 'x' first, the team who filed first, or shared somehow.

But my point is that simultaneous does not necessarily imply obvious.

nextaccountic• 2 years ago

In real life, the inventor of the blue led was basically scammed by his company. The company earned a lot of money and basically shifted the whole business to produce blue leds. Veritasium recently made a video about that https://www.youtube.com/watch?v=AF8d72mA41M

I think this illustrate another point: patents should protect inventors, not companies. Companies shouldn't be able to amass a "portfolio" of patents to bully their competition either.

oezi2• 2 years ago

3) Change patent duration by domain. 20 year software patents make no sense (5 year ones seem okay). 5 year patents on e.g. aerospace seem to make no sense (20 year ones seem okay).

One other idea would be to require a working prototype to be demonstrated as part of the filing otherwise the duration of the patent would be halved.

danaris2• 2 years ago

"For every complex problem, there is an answer that is clear, simple, and wrong." ~ HL Mencken

The problem is not the number of patents. If you limit that number, what you will get is a host of patent trolls and other largely-bad actors optimizing to be the first to get each year's patent quota.

EasyMark2• 2 years ago

I especially agree with #5, if you don't invent/show reasonable progress on an algorithm/device/etc within X (TBD) years the patent is useless; you should have kept it a trade secret or worked on it. Also, anything that is overly broad should be laughed out of the patent office. also current patents are far far too long

Xelbair• 2 years ago

The core idea of patent was to protect inventors from richer entities stealing their work and mass producing it.

Patents nowadays are used by rich entities as barriers to entry to industry.

The whole system is broken.

mk893• 2 years ago

I was reading somewhere (forbes?) that more than 90% patents are anyways useless.

Most patents are to scare people like the average Joe that opens up a company and needs to be careful about a whole bunch of things. In reality, competition is so brutal that nobody gives a damn - and at very high levels, they will find a way out. Plus, to if we knew all the patents existing, there would be no new companies - you can't patent obvious stuff, yet they do it.

Especially in our industry, we could have a better life without a lot of patents - mostly trivial stuff which shows how stupid our system is and why countries outside our system laugh at us.

Hard-core stuff like covid vaccines and unique innovations which outside countries feel cybercrime is worth doing - that's probably the stuff you want to create a patent for. Although I have my own ethical view that vaccines and health-related discoveries should be open, but yeah, that's another topic.

The rest is literally garbage that has to feed a broken system for the sake of keeping the system alive.

USA is in some cases really worse than EU countries in terms of modernizing things.

lp4vn• 2 years ago

I think that patents should only be enforceable if there is a commercialy product or service using it in the interval of maybe 5 years since the patent was registered. People making money by buying patents and suing companies is downright evil.

EFF: Tell Congress: We Can't Afford More Bad Patents

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