Federal Circuit Should Not Allow Patents on Inventions That Belong to the Public
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There are probably too many potential loopholes in that law though. There have been cases in publishing where a malicious publisher buys the rights to publish a book, promising a minimum run of the book, and then setting the price of the book prohibitively high, effectively censoring the title.
IMO, the whole patent system should just be tore down.
One principal reason is to establish a defensive portfolio, for possible use in counterattacking and as currency in future cross-licensing negotiations. If (let's say) IBM were to threaten sue XYZ Corporation for infringement [0], then XYZ would look through its own portfolio of patents to see which patents the company could use to assert a counterclaim against IBM; if XYZ didn't own any patents, it'd have nothing to trade. [1] It's commonly believed that this is why Microsoft went on a patenting binge in the 1990s: so that it would have something with which to counterattack and trade cross-licenses if, say, IBM sued it for infringement. EDIT: This was documented in a 1991 Bill Gates memo [2].
[0] In the early days of the PC, a certain large computer company had a reputation for (figuratively) dropping two or three stacks of patents on another company's desk and saying, you can have a license to Stack A for X% of your revenue, a license to Stacks A and B for X+Y% of your revenue, and a license to all three stacks for X+Y+Z% of your revenue. The other company would ask, which ones do you think we infringe? The larger company would answer, oh, we have no idea, but now that you know about these patents, if you do infringe, we'll find out eventually, you'll be a willful infringer, and you'll owe us up to treble damages. Some companies decided that settling was the better part of valor.
[1] https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?art...
[2] https://arstechnica.com/information-technology/2007/03/analy...
Perhaps it works because of the expense of determining which patent claims could realistically survive a motion to dismiss, i.e., the hourly rate of the patent lawyers hired to do this analysis and the number of hours they take to do it. The larger the stack of potentially assertable claims that need to be considered, the greater the cost. Quantity not quality.
If that process of determination, separating wheat from chaff, filtering out all the nonassertable (junk) claims, was less expensive than simply paying for a licenseFN1, then perhaps this tactic would not work.
FN1. Use imagination if believe this is impossible to achieve.
[3] http://www.oncontracts.com/multi-sentence-claims/ (self-cite)
or may be because a patent court case is more like rolling a dice with very significant potential damage. Business likes predictability - license is just a static cost to be factored into the price of the product - vs. high risk gamble. And software patents i think are worst of the worst in that regard (nevermind that i have several of them myself :).
Non-obvious ideas take time to think about and develop.
In many cases (according to the grandparent poster) ones unrelated to their direct jobs, which arguably their employer has no reason to claim rights over, but which might well still be novel advances to the state of the art.
I'd say we introduce a challenge period. If someone wants a patent, they should pose a challenge for anyone to come up with a solution. If nobody comes up with a solution in the given period, then they can have the patent.
This would work perfectly for stupid software patents.
Currently, there are a number of different institutional frameworks for trying to deal with the issue. Most of them don't work well. We have university patents + tech transfer offices. We have obligated NIH patent holding + licensing available to third parties for NIH sponsored innovations. We have government funded 'incubator'-like institutions with wide or narrow research scopes, etc.
Patents overall are an attempt at a solution for a larger problem - how do we allocate rewards to innovators. Our main model for doing so, academically, is to try and fail to create transparent funding flows to finance enlightenment-style aristocratic researchers (with labs, equipment, staff, etc). We do this in a manner that avoids accusations that they are receiving privileged patronage while also paying lip service to the idea that free-riders, extra-territorial or not, should contribute to the effort.
But note that we're trying to do different things with this one tool - and attempts to fix it in one area often result in breaking it in another. The entire system is just kludge upon kludge because of this.
The goal of the patent system is not to "pay innovators" - they already get paid by putting good products on the market.
The goal of the patent system is to get innovators to PUBLISH their solutions so that the public can benefit from them. (And build on them in the future.)
If the patent is obvious, then the public gets no benefit, and we're handing out monopolies for free.
Having innovators publish isn't, big picture, important. The big picture importance is getting people to actually use the fruits of research in society where that would be optimal. Publication is a tiny element of making that happen, by facilitating tech transfer (but not really, because a huge chunk of patented innovations can't be replicated from the filed documents or published research papers. Intentionally.).
So why is publication treated as the aim? Because the rewards associated with innovation are best secured by secrecy in the absence of other anti-free-rider measures. Hence secrecy is replaced as the source of reward for innovators because secrecy is directly at odds with the social desire to implement superior tech or processes.
Your refrain is a common one used by patent maximalists to describe patents as a transaction between the public and the innovator, rather than a grant of privilege. This is because if we divorce patents from their actual social utility, and instead focus on their immediate results, we can ignore their externalities and create a self-fullfilling positive KPI to talk about ("Hey look, we published n innovations in public! More than last year!" vs. "On a Net basis, we've bettered things in society.")
Yes, and here the patent system fails again. By far the most patents read as an exercise in obfuscation, and nothing like e.g. a handbook or scientific publication.
I spent my engineering career in telecom, and patents are a key part of the model. Those industries don't have the equivalent of a Google or an Apple that can bankroll expensive R&D on the back of massive consumer revenue. They're no unicorns or network effects where you can take a 20% cut on every app that gets sold to your captive user base. Instead, companies pay teams of very expensive PhDs to develop things like error correction systems for modems. They patent those things, use the patents to either extract licensing revenue or, more importantly, keep out free riders who didn't contribute to developing the technology. Then it's all obsolete in five years and they do it all over again.
Markets are good, and patents, as imperfect as they are, provide an infrastructure for integrating expensive R&D efforts (which don't result in tangible property), into markets, in a way that avoids free-riding. And it also results in market structures that are sane. I can just go buy a Broadcom Wi-Fi chip. Broadcom can recoup its investment by just selling me a chip, and count on patents to keep out free-riders. Their business model doesn't require them to make a whole consumer end-product like a phone, or tie their hardware to advertising, to be viable.
In the absence of patents, you get trade secrets and vertical integration. Apple doesn't care about patents because it doesn't sell you chip designs or even a chip, it sells you an iPhone. Google doesn't care about patents because it doesn't sell VP9 or Blink--those are just a means for furthering its advertising business.
Take a step back and think about the business models you want to see more of. Do we need more Apples and Samsungs, which want to sell you a complete end-user product tied to their ecosystem? Or do we want more ARMs, which are happy to just sell you a chip or even an IP core? Wouldn't it be nice to bring back Netscape? Where you could just exchange money for a web browser, instead of going to google.com and it bugging you to download Google's web browser for "free?"
What are you talking about? The biggest players in the telecom market report some of the largest profit in the country, both in real terms and as a percentage of revenue. They're just so entrenched that they view any R&D as a cost center if they can't use it to keep others or of the market.
Also, "consumer revenue" is the key word. The biggest R&D players in telecom don't sell to consumers. Intel and Qualcomm sell chips (and ARM just sells you IP). They don't make the chip in house and sell you a complete phone. At the same time, a company like Verizon or Comcast that sells to consumers isn't vertically integrated and doesn't do its own R&D. They buy all their equipment from other companies that do the R&D. You don't have vertically-integrated company that uses consumer revenue to bankroll the R&D. You have specialization and market transactions mediated by, among other things, patents.
Contrast web technology, where there’s no patents and no markets. Nobody sells browser engines. There is no specialization. It’s all driven by Apple, Microsoft, and Google, who invest in the R&D to further their consumer-facing platforms.
This is all not really private information, is how pretty much all of the telecoms are structured, and isn't illegal.
I suspect what the poster is talking about is telecom equipment manufacturers, not service providers. Yes service providers reap obscene profits. Equipment manufacturers are typically much more challenged by competition and commoditization.
This isn't a sign of how important patents are, but a sign of how the extreme rent seeking behaviors of the telecoms greatly manipulated many aspects of the market that they're in.
https://www.thestreet.com/story/14243906/1/how-at-amp-t-mana...
Also, you're comparing apples and oranges. AT&T today sells a different, much more valuable product than AT&T in 1970. Back then, a household might have one phone line and demand growth was basically nothing. Today, households have multiple cell lines, they're willing to pay much more for them, and demand keeps exploding. Likewise, Google is more profitable than AOL was at it's peak--it sells a different, much more valuable product.
Preventing free-riding is just one means to the constitutional end of promoting the useful arts; it's one that imposes tremendous transaction costs on society. Another means to that end is for the law to say to innovators, what you've done here is nice, but your bringing it forward simply doesn't provide enough net societal benefit to warrant legally prohibiting your competitors from copying your work — so if you want to keep whatever competitive advantage your innovativeness gives you, then you'd better keep innovating, because your competitors might be gaining on you. (Pace Satchel Paige [0] and Thomas Jefferson [1].)
When a patent is issued, most of the time it's a single, junior civil servant who literally makes legally-binding industrial policy for the entire nation. At a minimum, patent applicants seeking such a private industrial policy should have to do, and document, a thorough prior art search, in the same way that Ph.D. candidates must do and document a literature search for their dissertations. The existing patent examination process is like requiring a Ph.D. candidate's adviser to do the literature search, and requiring the degree to be conferred if the adviser doesn't turn up anything — and of course in the patent world there's always the factor that "the antlike persistency of solicitors has overcome, and I suppose will continue to overcome, the patience of examiners, and there is apparently always but one outcome." [2] A false-positive issuance of a patent has somewhat-greater ramifications for society than a false-positive issuance of a doctorate.
[0] "Don't look back. Something might be gaining on you." http://www.satchelpaige.com/quote2.html
[1] In a famous 1966 opinion, the Supreme Court, citing Thomas Jefferson, said: "The patent monopoly was not designed to secure to the inventor his natural right in his discoveries. Rather, it was a reward, an inducement, to bring forth new knowledge. The grant of an exclusive right to an invention was the creation of society—at odds with the inherent free nature of disclosed ideas—and was not to be freely given. Only inventions and discoveries which furthered human knowledge, and were new and useful, justified the special inducement of a limited private monopoly. Jefferson did not believe in granting patents for small details, obvious improvements, or frivolous devices. His writings evidence his insistence upon a high level of patentability." Graham v. John Deere & Co., 383 U.S. 1, 9 (1966), https://scholar.google.com/scholar_case?case=910565259149730...
[2] Lyon v. Boh, 1 F. 2d 48, 50 (S.D.N.Y. 1924) (Hand, L., J.), https://scholar.google.com/scholar_case?case=969659756696519..., rev'd on other grounds, 10 F.2d 30 (2d Cir. 1926), https://scholar.google.com/scholar_case?case=121904095703982...
The interesting thing to me about this is that it is fundamentally not a legal judgment, but an economic one. I think patent examiners should be required to have some background in economics along with whatever legal training they get (and, of course, their subject matter expertise). Similarly for judges deciding patent cases.
Anyway, as I've posted here on HN occasionally, I think the problem of figuring out at patent application time whether the invention is obvious or not is too hard, particularly for a junior civil servant. Instead I propose that the first step in an infringement proceeding should be for the patentee to supply objective evidence, along the lines of the Graham factors, of nonobviousness. The burden of proof should be on the patentee, and the court should evaluate this evidence on its own, without deferring to the examiner. What do you think of this idea?
It's a mix of both. Unfortunately, too many patent lawyers seem to subscribe to the natural-rights theory of protecting inventions: If you invented something, why then just naturally you should be able to prevent others from making, using, or selling it without your consent — as though conceiving and writing up the idea was the most important part of bringing the benefit of the idea to the public. Too often, the other facts involved in effective innovation seem to take a back seat.
(In the 1980s and 1990s, at meetings of the ABA Section of IP Law, I don't know how many times I'd hear Don Banner [0], a former chair of the section and former commissioner of Patents and Trademarks, hold forth on the importance of protecting "the little man from Little Rock," i.e., individual inventors.)
> The burden of proof should be on the patentee, and the court should evaluate this evidence on its own, without deferring to the examiner. What do you think of this idea
I think that would be the sounder public policy — keeping in mind of course that the patent examiner is a neutral expert.
Excellent! I think you're the first person here who has agreed with me :-) It seems like a subtle tweak, perhaps, to many people, but I think it would make a huge difference. Rayiner thinks it's unnecessary after Alice, but I'm not convinced; subject matter is a different aspect of the problem. (Also, though I welcome the effects that Alice is having, I'm not sure I think it's correct. The problem is that word "abstract". As software engineers, we know that abstraction is a hierarchy, and the abstract/concrete distinction is not absolute but is relative to the level within that hierarchy that one is speaking at. Any idea, in short, can be argued to be abstract.)
> keeping in mind of course that the patent examiner is a neutral expert
A neutral expert, but also one whose incentive structure encourages them to close cases. They don't get bonuses for fighting off obstinate applicants with bad patents.
A patent should be about some process that is so complex that nobody else has figured how to do it before (i.e. some secret trick). When it's published, humanity is better off by publishing it now (even if it's locked up for a little while) so people can investigate related solutions (some of which might not infringe).
But the patent office is allowing patents on obvious things, so the public gets no value in their publication. (Actually negative value, since people have to waste time reading them and companies are afraid to develop products).