20 years just seems way too long for a patent, especially as fast that the tech industry moves nowadays. Even 3 or 5 years would be better if we're going to keep having government granted monopolies.
It could take 5 years at university to get it working at all, 5 years as a startup to get the first product to market, 5 years to scale up the marked from zero. Then you only have 5 years left where you actually have a chance to make money.
Shortening the patent life to even 10 years would make it unattractive to patent groundbreaking technology.
If you immediately make it to market, the story is different. In the software-sector everything is moving much much faster than in the physical world. The negative effects of patents become much more obvious then.
One way to go about that is to limit the license fees the patent holder can get. This would change the game in major ways (mostly for the better I think).
Furthermore, the alternative (AAC) is open source. So there obviously exist incentives that are not patents. So 0 years of protectionism was enough for some people to innovate.
It is very common for people to act like patents are somehow necessary for innovation, but this is a story where patents were harmful.
And the scenario outline underlines that it may not be.
Shortening patent life will hurt big businesses somewhat. It might completely kill the use of patents for small startups and research groups, and completely eliminate whatever protections they have left, if any. Patent protections already heavily favor big businesses. Big businesses will be fine either way. Shortening patents will have little effect on whether they survive. What I wonder is what we can do to make the patent system useful to small businesses, like it is so often claimed to be, or what alternatives there are to incentivize and protect small business innovation.
It is absolutely true that longer patents would help some small businesses. But it is ALSO true that longer patents would HARM some small businesses. After all, large businesses own most of the patents. So long as their product only requires one patent, the small business is at no real risk from existing patents and is free to use their own patent to establish a foothold in the market. But do most products require only one patent? (Do any in this day and age?)
If a small business requires several patents to conduct their business and these are largely owned by existing, established firms, then patents may actually harm small businesses more than they help. I would be interested to see actual statistics on the size of each effect: I would be unsurprised if it turned out that patents do more harm than good to small businesses, even if the small business holds a patent.
You are right, shortening patents could allow more small businesses to compete with tech that expires, it could be a positive for small businesses.
But, that doesn't directly encourage any innovation, or protect the development efforts of any individual small businesses. And once patents expire, everyone can compete. There's normally a lot of dis-incentive for a small business to even consider jumping into that fray after someone's got a head start on the market, especially if the patent holder was a big business.
I'm most interested in how to encourage and protect the technical innovations of small businesses without making it a tool big businesses use to crush small ones and monopolize markets for obvious and non-innovative progress. Shortening patents could have a positive or negative effect on the health of small business, but I worry that it wouldn't address the stated goals of the patent system for small businesses.
So tune the law for software patents ? Software industry is large enough to get specific treatment.
In practice the first 15 years would (and commonly are) simply stretched with continuation patents...
You are an inventor, and you want to create a new company. Your adversaries are big companies with lots of other patents and lawyers. If there is a conflict (they steal your idea), you don't have any real practical recourse.
It took this man the majority of his adult life to win out in opposition to the Ford Motor Company's "acquisition" of his design for the intermittent windshield wiper.
So your solution to some of the issues caused by government-granted monopolies is to impose price controls!?
And don't think that an across-the-board royalty cap would last longer than a year or two. Price controls would only empower a new horde of bureaucrats and rules that would adjust royalty caps based on industry and company.
In this future, a patent means something different to each entity and in each sector.
Government wants to stimulate growth in a certain sector? Bump up the patent royalty cap.
Big business with lots of lobbyists and jobs? Bump up their caps (or reduce the competition's), for the sake of the jobs, you know.
Which probably would not be a bad thing.
He got offended when I said the patent system was messed up
There's a decent argument for drug patents (drugs cost a fortune to develop; makers only recoup losses if they can mark up the cost of drugs massively; competition gets in the way of that), but I'd argue this is a better argument against the whole industry and an argument for more public funding of drug research.
If you can't make your business work without patents, I think that's a bad sign.
I don't think it's feasible to get rid of patents, but I think they could (and should) be made easier to challenge and invalidate, and there should be some restrictions to discourage patent trolls (what restrictions exactly is debatable).
It's explained here:
https://en.wikipedia.org/wiki/Copyright_Clause
"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."
It's to avoid free-riders copying an invention after someone else researches the related dead ends.
Also there's a big distinction between copyright and patents. You don't hear about copyright trolls as often; it's not as crippled of a system.
You'd then get a longer term slump, as all companies stop investing in basic research and long-term R&D, since they can just wait and copy someone else's research instead. When building real physical products, being second to market by a few weeks costs far less than the years of R&D required to build a truly revolutionary product, not to mention you can use that R&D money to either (a) polish the your product more than the inventor's original product, or (b) splurge on marketing.
Can you point to a time where this has turned out to be true by your estimation? An example of a product where there was a tremendous amount of R&D required and the only thing saving the company from being destroyed by competitors beating them to the market 2 weeks later was a strong patent portfolio?
Even in the original iPhone presentation, there's a point where Steve is like, "Oh, and you bet we patented it, lol." But was that why the iphone succeeded? Was that why it could exist in the first place? Were it not for those patents, would Apple have been crushed by competitors mimicking them?
The pro-patent arguments are always expressed as hypotheticals, whereas there are numerous specific examples of patents hurting smaller companies unable to afford the cost of defending themselves. I'd be very interested in situations where the upshot is, "Oh boy, good thing for science and art that those patents existed."
You have a group of people that has performed basic research with minimum funding and decides to commercialize an idea. Since the group's work is already published in conferences and/or journals[1], it is extremely easy for a huge company to just throw some money at the idea and come out with a commercial implementation. But with patents in hand, the research group and the university can decide to either sell the patents to the highest bidder, or continue developing the product if they see the potential. And since the idea is protected by the law, no amount of money can kill the company.
I actually believe that the US patent system is one reason behind the success of advanced tech startups here.
[1]: Publication of results is a requirement for virtually all types of research funding. In other words, if you don't patent the outcome of your research, it's essentially in the public domain.
Meanwhile compare to something like deep learning, which is uniquely unencumbered by patents for several reasons. Yet somehow corporations seem to be interested and the pace of progress is rapid.
There would be a different type of slump too, as companies kept important technologies secret, rather than patenting them
Why would corporations be motivated to promote progress in science if someone else could come along and get all of their hard-earned research and development for free?
It costs millions or billions of dollars to drive innovation, and there are very few (if any) corporations idealistic enough to spend that kind of money if they don't think they will be able to earn it back.
But today's patents are written by lawyers and for lawyers. Patents are usually so terrible at their one job - elucidating inventions - that it takes years of debate between experts just to decide whether a patent even applies to an existing product. They are of no value to the public 20 years later. The whole system has become a make-work welfare program for lawyers and a barrier to free competition.
Drug/Medical patents need some reform that may need to include compulsory licensing after 3-5 years, and a dual-source requirement (two manufacturers) in order to be covered by government subsidized/paid for insurance programs (including VA, Medicare and gov't employees).
(Though you could probably say that copyrights might in some ways stifle people's artistic expression.)
Strongly disagreed. Copyright is at least as broken as patents, if not more. Mickey Mouse and most of the Disney catalog should have gone out of copyright years ago but they lobbied our corrupt Congress for an insane extension which is now uniformly used throughout the industry. Our public domain has been thoroughly robbed.
For more about abuse of the copyright system and courts in general, see the history of abuse meted out by Prenda Law against various innocent parties. That shit show never should have happened, and it took courts years to stop it. Prenda attorneys are now turning state's witness against each other because they're so busted.
How much did you pay to use the language and the vocabulary you're using in this post?
That's begging the question. How much innovation is gained and how much is lost? Nobody can give an answer.
That's a lot easier said than done.
That's kind of the point of a patent. It allows research into the open instead of secret so others can improve on it while the patent holder monetizes what he created.
without it, corporate research would be entirely kept private.
The whole point of patents is to encourage disclosure.
Patents are about giving legal protection to explain how things work, to put it right there for everybody.
That said, eliminate software patents.
Because if anybody else can also "productize" your idea, then it will in all probability be others that will make the money (especially if they are much larger than your company, can market more, have economies of scale, connections with retailers, etc.). So you get no reward at all for your idea, or a vastly diminished one.
People wont buy from you just because you had the original idea.
And of course "keeping it secret" AND selling it is usually not an option at all.
Idea's are a plenty. It's the correct productization that adds value. So - the correct fairness proposal is that the product development efforts to create a viable first example of a product category don't go to waste.
It's very easy to botch up the execution of a new idea into product. That's why it's not very good idea to trust historical specific examples to proof something does not work - maybe they just botched it. Now, when the first working example hits the market place competing players recognize that the method -in fact - can be implemented and have a bread crumb pathway lead ahead of them for viable product.
Now, the product development effort of competitors to reach market may not be any easier despite the breadcrumbs, but the initial product development had way higher risk because of no breadcrumbs to follow - and thus it's fair they should get higher return of investment for a while.
This is not to say the current implementation of patents is not messed up. It's quite telling that quite a lot of industrialization happened globally because people managed to ignore existing patents and implemented effectively industrial espionage to copy machinery. At least the world economy went ahead in leaps and bounds.
That's for common ideas. "Let's make a Facebook for dogs", "dollar shave club", etc. But those are not patentable in the first place (and if they are in some country, they shouldn't be).
Here we are talking for invention ideas. Which are not plenty, and which often require not just insight that billions couldn't manage to have (the invention of the carriage wheel -- which the pro-Columbian population of the Americas managed to miss, even though they had wheel shaped items for other uses), but also millions in R&D (e.g. to design. build, make efficient to mass produce and test a new kind of plane engine or a more efficient battery).
In a lot of those cases where the invention scratches an itch there's very little "correct productization" needed. If you make a better battery material for example, you just sell it like everybody else sells batteries (plus some marketing for its longer life). Some things literally sell themselves.
I think you'll find this takes a little more work than "Hey, wouldn't it be great to make audio files smaller?"
That it involves not just some singular "let's do an X" moment, but tons of math, hard work, novel techniques for better compression, faster decoding, etc?
But judges and PTO examiners have been getting it wrong so long they don't even know what's right anymore. But the letter of the law is quite clear and the SCOTUS is starting to come down harder on the side of the law, especially since rulings like Bilski.
Generally, I'm against software patents due to their easily abused nature (to the point where I think sacrificing all software patents would be a net benefit), but I find it very hard to argue that the person who came up with that codec shouldn't be able to patent their invention. Yes, it's math at the end of the day, but it's still novel math. Putting existing things together in actually novel ways should be patentable.
Novel math is still abstract, and as such, strictly ineligible. Software is the same, in that it is purely abstract. It will take time for the courts to catch up to reality, but they have trended in that direction.
Whether I agree or not that, as you say, "...novel ways should be patentable." they are, by the letter of the enacting law, ineligible.
So if the vast majority of the work being done is fundamentally different, does it make sense to set policy based on the outliers? The work of the patent office is almost entirely focused on "common ideas".
NB: I don't know the answer to this, just pointing out the difficulty.
The main value proposition of patents is that you entice inventors to make their inventions public for promoting further innovation, with the cost to society of given them exclusive practice for a short time. The problem with trade secrets is that reverse engineering exists, is generally legal, and is surprisingly easy. Give me a shipping binary and it's effectively equivalent to giving me source code.
I recently was thinking about patents, and software patents in particular. It's clear that the current patent system doesn't work very well here. SCOTUS has heard several cases about this general area of patents, and has found all of them distasteful (note that State St. was not a SCOTUS decision, and in Bilski, SCOTUS went out of its way to complain about how bad State St. was), while still struggling to be able to articulate a useful test.
The problem with software patents, in a nutshell, boils down to the fact that an invention like, say, the Enigma machine is the sort of prototypical invention that everyone would agree is patentable, while it's not clear that the software analogue should enjoy the same patentability (leaving aside questions of novelty, here). Should we prejudice a modern inventor just because he implements his useful machines in a virtual question, they ask, with the implicit response hopefully being no. And it's that response that drives SCOTUS to shying away from categorically saying that this sort of stuff that's never patentable.
And the answer I would give is yes. It is inherently more difficult to realize an idea in a physical domain than it is in a virtual domain--after all, I can try many different implementations in an afternoon (it's called recompiling). Furthermore, one of the great revelations of the information age was that you can equate many different concepts with relatively simple encoding systems--think about how we can use integers to represent, say, floating point numbers or strings. The essence of patentability is that you had to figure out something new, which is to say you had to realize an abstract idea into something concrete in a new way.
The downside is that this suggests that software should be patentable, although the bar should also be recognized as being much higher. And when you go back and you read the Alice decision, you can see SCOTUS sort of reaching towards that idea: you have to do something inventive with the abstract idea to meet §101 requirements.
> Should we prejudice a modern inventor just because he implements his useful machines in a virtual question, they ask, with the implicit response hopefully being no.
If the sentence starts with "Should we prejudice a modern inventor just because...", the answer is probably "Of course not!" because it's such a loaded way to phrase it. Just saying.
But your larger point is well taken; I understand that this is exactly the analogy used in court decisions that end up being pro-patent. "Even though the method of implementation of ideas has changed, the spirit of the original concept of patents still stands true, as it has historically." But my takeaway from looking at basically the same evidence is "Patents weren't a very good idea in the first place, and now they're a really bad idea because times have changed because of software and the patent-industrial complex has made the software business worse for the little guy."
However, go to many other idustries and you'll find that people have a much more positive view of patents. We hear about it when patents don't work. You don't often hear about patent success stories.
True enough, can you share some? (preferably post 80s, ie not Robert Kearns?)
> There's a decent argument for drug patents (drugs cost a fortune to develop; makers only recoup losses if they can mark up the cost of drugs massively; competition gets in the way of that), but I'd argue this is a better argument against the whole industry and an argument for more public funding of drug research.
Got any others?
And/or since you brought it up, I'm legitimately asking: what's the best example in your mind of a drug that probably would not exist without patents?
https://en.wikipedia.org/wiki/Lonnie_Johnson_(inventor)
To give an extremely niche and rather longwinded example:
Fine engraving is done with a specialised reciprocating tool that works a bit like a tiny pneumatic jackhammer. There are two real choices if you want one of these tools. GRS were first to market and are the dominant player; they make a relatively complicated system of tools that use a bulky desktop control unit. The alternative is the Steve Lindsay Airgraver, a beautifully simple design that connects directly to a compressed air source.
GRS would easily have the muscle to push Lindsay out of the market if it weren't for his patents. They have an international network of dealers and training providers; he has little more than a great product and some very satisfied customers. Lindsay's sole commercial advantage is superior technology.
The original patents for both the GRS and Lindsay tools have lapsed, but both tools have been continuously improved over the intervening years with many subsequent patents. If either side stops innovating, they're likely to be decimated by cheaper knock-offs as soon as their last useful patent expires.
Because the super soaker guy wants his patent, small software companies have to eat shit from patent trolls and millions (billions?) has to be spent by companies in litigation?
The positives don't outweigh the negatives.
I agree that software patents situation is shit, though it would be great if we could handle patent systems of different industries in isolation.
Abandoning the patent system because of software patents would be an egregious example of throwing the baby out with the bathwater. The USPTO and the American civil legal system is broken in a lot of quite fundamental ways, but that doesn't invalidate the basic idea of patent law.
Most people wouldn't go and see a doctor who clearly states that they're just after money, because you know they have tuition to pay back and if they leave money on the table then competition is gonna take it and drive him/her out of business. Public health is obviously a public good, but somehow handing it over to companies with non-aligned interests (eg. pushing some of the dubious drugs to recoup on R&D) is ok.
Ok so the US publicly funds the development of a new drug. It costs US tax payers $1bn. 3 months after the drug is approved, factories in a BRIC start manufacturing it for peanuts and selling it all over the world. How do US tax payers recoup their costs? You've just pushed the freeloading issue away from 'other companies' and over towards 'other nations'.
The reward/loss proposition is "does this drug help people and would have it existed otherwise", not "did we turn a monetary profit"
It is an argument-in-miniature for reforming health care in the US.
In all likelihood, the US should be operating its own generic pharmaceutical manufacturing facility, for all clinically relevant patent-expired drugs, that would, at minimum, serve all VA, Medicare, and Medicaid patients. If you can pay from an effectively unlimited purse, that just encourages the generics manufacturers that you buy from to raise their prices to just beyond the limit of what is reasonable.
Curing disease is usually less expensive than continuously treating them until the patient dies (or runs out of money). The patent system encourages research into the latter. A public health system would prefer the former.
The quest for (economic) profits in an industry is by definition the quest to make it more expensive relative to other industries. You can't get better than average returns from companies in it unless their customers are paying more money into it relative to other industries. Granted monopolies allow firms to achieve economic profits. Health care is expensive in the US because it is protected from commoditization. That is by design, so that health care businesses can be (economically) profitable!
It stands to reason that you cannot achieve lower costs without destroying opportunities to realize economic profits. That is why this administration and all previous administrations fail at "fixing healthcare". They are already committed to preserving the profits. Health care company shares make it easier for those that own them to live at the expense of those who do not. The noise about insurance plans and coverage is distracting everyone from the root cause: for-profit businesses with protected monopolies.
Drug research can be done with the goal of improving quality of life rather than the goal of making more money than can be earned by investing on the no-risk baseline.
Patents make an industry more expensive for everyone else to buy from. That is their purpose. The original intent was to make otherwise untenable investments in R&D pay off. But in mature, non-nascent industries, they are a drag on the economy.
(a) increase invention
(b) increased distribution of invention
The mechanism of a time-limited protection tries to increase (a) at the cost of (b). Any discussion must start with the acknowledgement that both goals have merit, and that the mechanism of how IP law affects them is basically sound.
There's obviously a point of diminishing returns in the time-limits. For example I'd argue that the money earned "70 years after the death of the creator" contributes very little to the motivation of today's writers. On the other hand, very few people will argue that an exclusive right to sell a book for the first year has never in history influenced a writer's decisions.
It's impossible to find the exact point where the curves meet without looking at a lot of actual data, and it's probably different for every product.
I agree that both goals you mentioned have merit, but I think it's going to far to say that the mechanism of IP law is necessarily sound. Granting exclusive right to an invention might be the obvious solution, but is not without problems, so I don't think it's right to dismiss any discussion that doesn't affirm IP law to be basically sound.
Secondly, the exclusive right to sell a book (or more generally, the reproduction of any work) for one year, did no exist for large parts of history, so I don't see how it could possibly have influenced a writer's decisions during those times. At the very least it's not the case that books don't get written without copyright.
Would any books be written without copyright? Yes, of course – although the laws go back to the 17th century, so it's hard to argue that there ever was a golden time of freedom, considering the printing press was newish at the time and the collective creative output has, even per-capita or GDP-adjusted, increased by about a dozen orders of magnitude.
The two mechanisms which I consider "basically sound" is that (a) financial incentives generally work to stimulate creative output. It's not the only motive driving the useful arts, but you'll have a really hard time showing that it's a net-negative, considering that limitless evidence for the efficacy of financial incentives.
The other mechanism is (b) that the restrictions on distribution created by IP laws diminish the actual usefulness of creative output, which includes the number of people having access to it as one factor.
Both mechanisms are obvious, yet they work in opposite directions. The total benefit of IP is (simplified) <works created, i. e (a)> * <people reached, i. e. (b)>.
There are some examples for how to avoid this conundrum, such as 'fair use', or the government (or interested groups/individuals) buying IP rights and donating to the public domain. I also believe quite firmly that copyright terms of death+70 years are far beyond the point where they create enough benefits in (a) to offset the losses in (b). The situation for patents is a bit more murky.
[1]: http://www.zdnet.com/article/bt-loses-hyperlink-patent-case/
The same would happen in software. They'd write all the software, patent a part of it, and then repatend a different part of the software as time went on. If anyone else attempted to patent an unpatented part they claim they invented it first and will be awarded the patent (because it is their patent). If anyone uses an unpatented part they just file for the patent and sue when they're awarded it.
What's broken isn't the lifespan, it's the patent system.
I thought FtF applied to any part of the invention. So you patent a specific part of the invention, then you've filed that invention. I could be wrong. IANAL
https://en.wikipedia.org/wiki/First_to_file_and_first_to_inv...
Technically drugs have the same patent lifespan (3 years
The patent expiration tricks you describe don't... exist? (You do have to patent the entire molecule.) Pfizer made a hojillion dollars from Vigara. Its patent expired in 2012, and it's now a generic. "From 1996 to 2012 under the trade name Lipitor, atorvastatin became the world's best-selling drug to that point, with more than US$125 billion in sales". Lipitor is a generic now, and is dirt cheap. If Pfizer could have keep Lipitor under patent, by any means at all, they would have!
Drug companies make sequel compounds, sure, and market the heck out of them. But you don't have to buy them if you don't want to. The old drugs still exist.
Your description of software patents is equally strange. You know patent examiners don't actually look at code, right? The process, or "apparatus" is described, and they award the patent based on that. You can rewrite the implementation all you want, as long as it's doing the same thing, it's covered by the same patent. You have do something different to get a different patent. What counts as "different" has, of course, been a topic of heated argument for the last two centuries.
Also note that 1996 to 2012 is not 20 years. Drug trials eat up the patent time. This is problematic for some diseases, e.g., for cancer, where ideally you might prefer early-stage interventions or cures, but late-stage trials are faster to conclude and therefore can give drugs with longer patent protection.
Humira is out of patent protection, but still costs thousands for a dose
Wouldn't the one-year rule apply in those cases, preventing the original inventor (or anyone else) from filing for a patent for something that has been public knowledge for more than a year?
But I also think some fields move slow enough and need enough R&D that much longer timescales make sense. Things like wind tech, nuclear tech, fusion tech.
I'm really not an expert on any of this, but a I don't think a one size fits all scheme is sufficient.
But on the other hand, I'm of the opinion that patents should stay, but trivial ones should stop being granted. And perhaps progressively increase the length based on triviality? Something super novel should get a longer lifespan, but something simple(r) should only get 5 years or so.
The increase rate could be different for different IP, but typically first few years could be free, and after 20 years the tax should be in billions.
This would solve quite a few problems with IP (orphan works would be a non-issue, and patent trolls would have difficulties operating)
Of course, I think there would be some "small" details to be solved on the international side...
I would expect that to end up as just one other thing patent lawyers will use to dispute patents, as that would have the patent office (partially) decide not only whether something is original, but also, to some extent, what it is worth.
Or, one schedule might fit everything, I have not done that detailed anaylis of this idea.
"Hey this is a really nice restaurant; it'd be a shame if you were to have a fire or something."
I am not interested here to engage in a libertarian argument that all tax is theft or mafia type coercion.
The only real opportunity for disagreement is whether that theft is justified. And, I suppose, we can play games with substituting another term for "theft". Perhaps "confiscation" or "seizure".
So libertarian views on this are pots calling the kettle black.
So if I sign a schematic its a work of art and can't be reproduced without my permission and I don't need to register it before filing suit on anyone infringing my copyright (although it would help at trial...)
On the other hand someone else can steal the design off my schematic unless I pay the government to protect me, which seems weird to me.
It would be like the government protecting me for free if someone stole the arrangement of my lawn chairs on my patio, but not having police protection from stealing the physical chairs unless I paid protection money.
Shouldn't the government in a capitalist country protect inventors stronger than it protects artists? Or maybe this isn't as much of a top to bottom capitalist country as some people insist.
Artists and property owners are protected by the government for free. The work of the engineer, not so much.
Like, should I be outraged at the fee built into TVs, or is it basically irrelevant?
You can view a sample license agreement, which does not mention such a cap, here: https://www.sec.gov/Archives/edgar/data/1114084/000101287003... Annual caps are essential for anyone whose business model involves giving away software for free on the internet (even an existing user downloading a new version triggers another royalty).
You may also notice that that agreement charges royalties for products made or distributed in "Non-Patent Countries", including those that purport not to have software patents. This is pretty standard. Essentially, if you'd like to sell your product in the US, you have to pay royalties on all units you sell, anywhere in the world.
That's the copyright office. And they understand it fine, but they take orders from lawmakers who are paid under the table (or over it) to extend copyrights.
If the discoveries and investigation behind a patent took you 20 years, then you get a 20 year patent. If they only took you five minutes because you're advancement is relatively trivial (and yet somehow still qualifies for a patent) then you get a minimum of a year or something.
I'm sure that such a system would be just as game-able, but I feel like it would kill at least some of the most pollutant patents.
But I do agree with the sentiment.