American law is patent nonsense

http://www.ft.com/cms/s/2/ea9503c2-f0f9-11e1-89b2-00144feabdc0.html

by callum85 • 14 years ago

130 51 14 years ago

Most people (whose business isn't propped up by it) seem to agree patent law in the US is, to a greater or lesser extent, broken. How can we fix it? Short of deep pockets to fund a lot of lobbying (maybe a big Indiegogo project...where's The Oatmeal? ;), I don't see how we overcome the lobbying of large IP producers who don't want things to change.

jseims• 14 years ago

I don't think you have to overcome the lobbying of IP holders, as they're also hurt by too many patents.

The tech industry just needs to agree that we'd all be better off with a truce, and lobby to change the laws. Personally, I'd like to see no patents for software and business methods.

beagle33• 14 years ago

> they're also hurt by too many patents.

But they also spent a lot of money to get (and maintain) these patents over the years, so while they might not try to fight a patent reform, there is no chance they will lobby for it: With all the pain they are enduring, the patent system STILL gives the big guys an edge on the small guys.

> Personally, I'd like to see no patents for software and business methods.

Me too. But patents (paid for already) have already been granted, so even if you stop granting them today you still have to wait 20 years for old ones to expire; and patent holders would (rightfully) demand their money back if you decide to expire them early.

The only solution (which several people have apparently come up with independently) that I'm aware of that has a chance of working, is introducing a "cost-of-carry" for patents - if patents are property, tax them like property, at e.g. 1% of decalred value per year.

Think your patent portfolio is worth $1B? That's nice. Pay $10M/year to maintain it. The value would come into play in estimation of damages (e.g., patent infringement limited to patent value per violator, or at most 3 times as much for willful infringement); and alternatively in an "eminent domain" style seizure - someone could take the patent away from you in return for 20 times declared value.

The mechanics are non trivial, but can be solved in such a way that they create an incentive not to overstate the worth of a patent, yet still provide protection to inventors - and it would put old and new patents on equal footing.

stephengillie• 14 years ago

At a minimum, I'd like to see Non-Practicing Entities be unable to sue for infringement.

buro9• 14 years ago

Define that.

Because surely all a patent troll would need to do is implement a product that demonstrates a single patent in their pool.

Or are you suggesting that every patent must be implemented as a product for it to be enforced?

And if so, as an example of similar things, the UCI (cycling body) state that all Olympic track bikes must be available to the public, and this is true of Team GB equipment that you can order, for a price in the region of GBP 100k per bike.

So would it be enough for a patent troll to offer an implementation of a smart phone for USD 5m?

ktizo• 14 years ago

Just make patents non-transferable instead, so they always must be licensed from the originating named individual or individuals (no direct patents by corps). That at least restricts the ability to amass a sizable monopoly over a whole sector.

stephen_g• 14 years ago

I don't think that will help a whole lot... There are some uses for non-practicing entities (eg, groups of patent holders like the MPEG LA doesn't do anything but it'd be impossible for anyone to licence an H.264 decoder without them because you'd have to get licences for hundreds of individual patents from a whole lot of other companies instead).

We need to get to the source of the problem, which is that most software patents are either too vague or are for obvious things, and the term of protection is far too long.

winter_blue2• 14 years ago

It's rather disappointing that in a democracy you have to lobby, i.e. spend lots of money to get anything done. What would be really great though would be a direct democracy, perhaps one that is Internet-based, where voters can raise motions and with sufficient votes pass them. This is a castle in the air though...

adolph2• 14 years ago

This article is not very enlightening. It: doesn't address any of the claims; views the jury decision as if it were the final adjudication rather than something that will be appealed and likely modified; quotes Apple rumor website commenters.

dohko• 14 years ago

I don't understand. Do you disagree with the author's points of view? Why is it not enlightening?

The way I am reading this article, and it can be wrong, is as a by-and-large synthesis on the author's point of view on why US patent law is antiquated and supposevily bad for the Tech Industry of this country.

I don't see any of his points as incorrect, in fact I agree with his sentiment.

Therefore, do you disagree with he is saying? Or do you just think that he is right, but fails to make any good suggestion on how to change the current flawed system?

adolph2• 14 years ago

I found it not enlightening for the reasons I listed. I guess I am on the lookout for something that makes sense of Apple v Samsung specifically and how the verdict fits into an understanding of the challenges posed by patent law. This wasn't it and I suppose I am too impatient, it will be written in long form and take more time.

czr804• 14 years ago

This is a surprisingly poor article for the FT. It confuses different types of IP legislation, and is full of unsupported assertions.

rwmj• 14 years ago

It's an opinion piece not a scientific paper. It doesn't need rigorous proof, and if you want that you can easily look at the papers they do reference.

epistasis• 14 years ago

An effective opinion piece should make arguments that are intelligible and convincing to knowledgable readers. If somebody was trying to argue that the SV funding model was fundamentally broken but confused basic terms, they would be rightly excoriated. If a knowledgable reader dismisses the writer as ignorant and confused on the subject, the best that the piece can aspire to is agitprop for riling up people that know little about the area but want to have an opinion on it.

Joeri• 14 years ago

The problem is that both sides of the debate state their claims on a foundation of unsupported assertions. As a consequence the entire debate is reduced to a battle of gut feelings.

Where are the objective cost/benefit studies of the patent system?

jedbrown3• 14 years ago

This book, despite its clear agenda, includes a fair amount of quantitative analysis.

http://levine.sscnet.ucla.edu/general/intellectual/againstfi...

Chapter 3 has interesting historical case studies, including, for example, the patent-free flurry of innovation that increased the efficiency of the steam engine by 5x in the 25 years immediately following expiration of Watt's patent, in contrast to the efficiency plateau that occurred while Watt's patent was enforced. Chapter 8 has a modern macroeconomic analysis.

bartl• 14 years ago

That may be to show how people in the USA are overly respectful for "IP".

Besides, if you can patent the look of icons (which is design, thus, art, and not in any way an invention), who is conflating the types of IP, anyway?

czr804• 14 years ago

You can get a design patent on the look of icons, but not a (utility) patent.

Despite the name, a design patent is very different thing from a (utility) patent, which is what people normally think of as a patent. In many ways it's better to think of a design patent as a class of trademark.

If we want to reform the "patent" system, then at the very least we need to be clear what we are arguing against. Different types of IP - patents, design patents, copyright, trademarks, trade dress, etc. - were intended to achieve very different social objectives. Each has its own sets of strengths and weaknesses, and each has been distorted by regulatory capture in different ways.

I think it's important to understand these differences, and something of their history, to be able to make effective improvements.

nirvana2• 14 years ago

You just confused a design patent with a utility patent.

Frankly, I've personally not yet seen an anti-patent argument from someone who actually understood what patents were, how they worked, etc. They constantly confuse terms, misrepresents what the patents they are dogging actually say, or rely solely on unsupported assertions.

Including hundreds of comments here on HN, all of which seem to be ideologically driven repetitions of talking points, and none of which come from people who have read the patents or which accurately represent what the patents actually cover. (Eg: all the commentary on the Samsung trial, not one criticizing the patents was accurate.)

Its not like patents are secret- they're published on the web for anyone to read.

Near as I can tell-- google felt they needed to rip off the iPhone for android in order to compete, and therefore, suddenly, patents are bad. Yet microsoft's metro UI shows this isn't the case....

chrisacky• 14 years ago

I don't understand why half of the current comments on this article are currently bashing the Financial Times for such an underwhelming/"not very enlightening"/"poor" article.

This article is akin to the lobbying that any interested party does when they want to see change... To make a comparison... half of what Chris Dodds said from the MPAA was utter balls and constantly full of inaccuracies and litter picking his facts to suit him...

I don't particularly care if the Financial Times do the same here. Not every FT reader will be clued in to the inadequacies of the patent system, and I think this article does do a fantastic job of explaining in lay terms how much of shambles technology patents are.

Back when I studied Law at University, I actually remember my first lecture on IP and Patents; it was on "Justifications for Intellectual Property Rights". We talked about Venetian/Florence Glass Blowers and the Pharmaceutical Industry...

Comparing the different industries makes it easy to see how you can justify patents for one use case. Providing a limited monopoly in pharmaceuticals (for the most part) guarantees the incentive for the ridiculously high research and development costs that goes along with bringing a product to market.

Providing a monopoly right for technology where you position your fingers over a device to interact with it, is ridiculous and just shows how antiquated and behind the times the Law is.

Yes, the article might be muddling up some things, but it does a great job of bringing to attention how broken the patent system is for technology/software/computer implemented inventions.

billswift• 14 years ago

There are many problems with patents in drug development as well, as Derek Lowe discusses in these essays, http://pipeline.corante.com/archives/patents_and_ip/ . It may be time to try to develop something new, maybe based on patent law, maybe not, even for pharma.

ADDED: One problem pharma shares with software is "patent thickets" where there are many applicable patents, applying to different layers of technology, that the current development relies on.

flexie2• 14 years ago

The article is mostly right, but I find it ironic that to access the article, I had to accept their cookie policy - a result of nonsense European legislation.

czr804• 14 years ago

Why is that ironic?

flexie2• 14 years ago

Just shows that there are foolish laws everywhere. American IT companies may have to deal with software patents. Europeans deal with - sometimes - misguided and excessive consumer protection rules such as the cookie rules.

bhousel• 14 years ago

Intellectual property law isn't nonsense. It evolved over hundreds of years (and continues to do so) from other areas of property law in the common law system.

baddox• 14 years ago

Those two things are not mutually exclusive.

greyfade3• 14 years ago

It did not evolve from property law. It evolved from monopolies granted by kings, and the desire to control who could publish and how extensively. So-misnamed "intellectual property" never had anything to do with property laws until very recently.

gbz2• 14 years ago

Too much ink has been spilled on this topic but most arguments against software patents continue to be patently confused and unelightened about the core matters. For one, patents do not exist purely to 'incentivize', but also for reasons of fairness and justice. If software patents should be abolished, why exactly do we need copyright laws? Why don't we allow any book/paper/poem to be copied and resold by anyone under their own name? Why don't we allow people to make derivative copies of say harry potter books and build their own fortune? Im sure society wont be worse off for it.

Second, the problem with the patent system isn't that patents are given too easily (trust me, its not that easy), or to obvious things -- as they say, all beautiful solutions are obvious in hindsight -- but that companies that infringe patents have convinced themselves that they are within their right to do so. There's definitely a strong case for giving immunity to companies below a certain size (revenue, employee base etc) from patent prosecution, but most large companies can easily license patents but refuse to. Yes, there are still abuses of the system, but those are bound to arise no matter what system you put in place.. someone will always try to game it. And as software patents are litigated, common law will settle down on standards and businesses will know whats kosher and whats not. Much of the current excitement is because we are currently in the midst of the first explosion in assertion of software patents where common law is still evolving.

Last, many of the claims being made regarding the supposed absurdity of apple's patent claims are so fundamentally (or willfully?) uninformed, that it begs wonder (not very unlike the willful distortion of news from other countries thats so common in major western news platforms). Apple never really asserted a patent on a rectanle with round edges.. and as for its claims on UI elements -- it was a trade dress claim primarily, not patent claim. The bounce back and tap to zoom claims were patent claims -- but rest assured, micrsoft would probably have implemented the same with no bounce back and context menus to zoom. (no ms office app after 30+ yrs in mkt still has bounce back -- so maybe its not that obvious). However, the prior art arguments are legitimate and can only be settled in court.. which samsung simply failed to do.

expaand2• 14 years ago

What does abolishing software patents have to do with "copyright"? Two completely different animals.

I am for abolishing software patents - for all the reasons everyone sites. But "stealing" someone's actual code or implementation or book or music is another story.

gbz2• 14 years ago

Not sure why they are completely different animals. Both protect property rights in creative work which can be easily copied/replicated (without attribution or compensation).

As for abolishing software patents -- would help if you can list the reasons people cite -- I can't offer a counterargument otherwise.

expaand2• 14 years ago

US patent laws derive directly from Clause 8 of the US Constitution, where it says that Congress is empowered.. "..To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries"

Note the words "To promote the Progress of Science and useful Arts..."

I would say that any necesary condition on a patent would be that it indeed "promotes the progress of Science and the useful Arts". In other words, the purpose of even sanctioning patents is so that people would have incentives to go out and invent things. The assumption is, that absent a patent, folks will sit on their bums and not invent anything. With a patent, the inventor can profit, but so does society. If there is no benefit to society, why allow the patent?

Until relatively recently (the 1980's?), software patents were virtually nonexistant. Did that stop "inventions" in the world of software? That's laughable, since that was the time of immense creativity, new companies, products, inventions. To me that is PROOF that patents in software are hardly needed to "promote the progress of Science and the useful Arts". Think of all the software companies that came of age in the 1980's and 90's. WITHOUT patent protection (for the most part). WHY allow software patents? For what purpose? The only reason I can see is to benefit the legal profession. And large companies.

In addition, software patents have a number of flaws, mostly due to practicalities deriving from the ease with which software designers can conjure up new techniques, visual elements, user-interface designs, wire protocols, languages,database designs, and the like. Software is a "soft" science - it doesn't require expensive laboratories or extensive field trials. It is playing in a virtual world. You can sit in your room and without spending millions of dollars, come up with amazing things. But so can the person across the street or around the globe! And they do! So MUCH of what is "patented" are just "obvious" takes or re-takes of what already abounds, or would abound, should someone else in a room have to solve that same problem. Many patents are not novel, complicated, unusual. Clever, maybe. But someone else in the same circumstance might come up with the same exact thing. Why should the first person be granted 20 years of "protection"?

IF we were to allow software patents at all, say, for truly novel, complex things (yet to be determined how you would define this), we should limit the term - to say, 3 years. So yeah, go patent your "One Click" or your "Bouncy Screen" - if approved (dubious for these), you would have only 3 years to profit from your exclusive deal. Far fewer patents would be applied for. Far less litigation.

And software designers and companies could create great things and compete on what they are offering, and not who they are suing. And, believe me, tech would flourish. Software patents are a TAX on everyone.

winter_blue2• 14 years ago

I really like the page's background color. Overall the non-white background is gentle and soothing to the eye. Add to that the fact that the page is not too littered with ads and other graphics, it's presentation is overall great! (The real kicker is the background color through :)

dumb123• 14 years ago

A provocative title.

The issue really starts with the American culture (of litigation), not American law, per se.

And of course the encouragement of litigation, the acceptance of it as a way of life and a way of doing business, and the high amount of ensuing court activity breeds a rather large body of case law, a complex legal landscape, which gives way to a sort of feedback loop leading to more litigation.

"Can we sue our way to prosperity?"

This was a title of a Congressional study a year or two ago.

I think it captures the essence of the problem. Wealth is increasingly being created _only_ through litigation. (Reminder: IP rights are often nothing more than rights to sue alleged infringers.) Is that toxic? Is it sustainable? I don't know. I don't think Congress knows either.

npguy• 14 years ago

Who came up with the idea that anyone deserves money for coming up with an idea? :-) that is the concept that sits at the heart of this broken patent system.

We should all just agree that execution is everything, and only fight when someone copies actual code etc.

expralitemonk• 14 years ago

The U.S. patent office is allowed to keep all fees it collects for its own budget, so it has an incentive to grant as many patents as possible, no matter how silly they are.

American law is patent nonsense

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