Why software patents are not fixable
marco.org
marco.org
If patent workers are overworked, why don't we replace them with a certificate of origination. You file it, it takes two weeks, it's dated, and it describes the work. Then, if you need to sue someone, you then have to pay to prove that they are infringing. Reverse the burden of proof and delay the cost of approving patents.
Second, my biggest problem with software patents is that you can't build the thing from the description. If you look at a patent for a device, there are schematics and descriptions of how it works. Software patents just say "the user can click a button and it automatically buys a book". Where are the detailed drawings of how the web server connects to the payment system which connects to the distribution center? How do you scale that up to millions of users? That's where the magic is.
Patents are supposed to give the inventor a reasonable period of time to profit from his work. After that time period is over, it becomes public knowledge, so everyone can do it for free. Software patents do not give away the knowledge that it actually takes to build the system. Instead, they typically just describe the tiny bit that is apparent to the user.
Mandatory arbitration (prior to trial) might also be an interesting alternative, especially with the burden of proof on the plaintiff.
Precedent counts for a LOT when it comes to resolving any legal issues, even if the precedent is settling, and the trolls know that and use it.
Now some time later person 'c' also invents X and gets sued by person 'b's company. (or the holding company that bought out person 'b's company's IP portfolio).
Engineers have been told to literally "file a patent on everything you do, regardless of how novel or patentable you think it is, let the lawyers figure that out." further, to protect themselves they pay 'bonuses' for filing. Its a strategy and it pays dividends in the current climate.
So I understand Marco's and others frustration here, I would be interested in clearly bogus patents that have been filed post 2005 (my thesis is that starting in 1995 the PTO was hit by a zillion new patents and it wasn't until 2005 that the examiners had become trained enough to recognize the obvious ones and discard them) I've done some expert witness work and found that the prosecution histories of patents show a significant improvement in the examiner's responses as you move from 1995 to 2005.
Toast patent -- featured in the episode.
Saying IV shell companies only sue people -- misrepresentation of something in the episode; companies affiliated with IV sue people, but some IV shell companies may only be used to acquire and license patents (thus their shell companies do not "only sue people" as Marco says).
Marco does not address the popular notion that software patents should be wholesale dropped as a way to fix the problem.
So what is the point of this article?
http://thisismynext.com/2011/08/11/broken-patent-system/
Also more substantial and less nieve (ie. not from somebody who listened to the TIL episode, read wikipedia for 15 minutes, and then decided to write a blog post)
First, it's nowhere near a similar argument. Patel argues that software patents are fundamentally sound, they're just implemented poorly.
This article instead argues a position closer to my own which is that software patents are fundamentally broken because they can't be implemented correctly. The assumption in Patel's argument is that it's possible for the USPTO to police software patents effectively. Thus far this has not been shown to be the case. The argument in this blog post is that because of the nature of governmental regulation, this is impossible to do effectively. After reaching this conclusion, the conclusion must be that software patents are fundamentally broken.
Patel can make an argument that this is possible, but he doesn't.
1) In my mind, there is the disincentive to work at the US PTO [or any PTO for that matter] because the salaries suck, you're demanded to have unrealistic quota's and that means only so much time can be spent on each filing by examiners who are mostly beginning - because ones they are experienced leave to join firms who pay them a lot more because they have examined from "the other side of the table".
It's a talent glut that starts the cycle, approves poor patents, clogs the court with the attitude of "even if we are wrong [PTO] the Courts will resolve it - so we really can't make mistakes" and increases litigation costs for all involved.
2) I don't think removing patents is the solution - there have been 100's of instances where the "little guy has stopped the big guy" in all sorts of scenarios in innovation - tech or otherwise. The problem is that you have a system which is bursting because the pay cycle for PTO is low, pressure driven and this means you've inexperienced patent examiners who ultimately leave for high paying firms. Why wouldn't they ? There isn't any economic incentive to stay. Pay them more. Retain the best ones. Get better examination results, use an Open Source Prior Art system which allows community collaboration to increase prior art base and makes it harder to "prove" novelty.
3) Stopping the "patent trolls" [shell companies which no utility other than to litigate] is a completely other matter IMHO. The patent system is designed to protect innovation - I'm not sure it was designed to facilitate companies purchasing huge packets of IP protection to simply stiffle innovation. Llegislative restrictions should be placed around IP attaching to a product or service which looses it's enforceability if it abstracts itself too far from this product or service - meaning companies who acquire technology can continue to gain from their acquisition [product/service] as it is inferred they are in a similar field and therefore would satisfy any such test - but which ultimately means that trolls who acquire IP don't have anything to gain. They are too far abstracted which means their enforcability is dead.
i.e. A University developing and researching technology doesn't have an "abstract connection" to any patents they hold - they developed the technology and therefore have a direct association to the product/service - regardless of who they licence it to for further commercialization - arguably, without their initial cost of research and development the patent wouldn't exist and the world wouldn't benefit from their efforts. IF a troll acquired the patent and had no intention to develop the disclosed invention -they have no direct association and therefore it's useless. A "bad faith" test if you will.
"Trolls" - at least in my view - have no direct connection to the patentable subject matter - a so-called "abstract connection" - and therefore aren't actually "benefiting" from their effort in developing the patentable subject matter. They are essentially those entities who use patents purely as an enforceable mechanism in order to extract income from innovators and that's a sad by-product of patents unfortunately. In Trademark law, trademarks registered in "bad-faith" can be extinguished and it would not be that difficult to extend such a concept to patents such that owners who acquire patent rights in bad-faith [that is, purely to stifle innovation without any direct connection to the patentable material] - should loose them.
Instead there is moral hazard. The process is this:
1. Get a job at USPTO.
2. Deliberately approve tons of awful patents.
3. Leave and get a job at a patent law firm.
4. Profit!!!!
FWIW it strikes me as absurdly unlikely.
Can you describe the methodology of the examiner turned attorney, how do they make money from this?
>In practice, therefore, an issued patent is a valid patent //
Well no. An invalid patent is still invalid even if you use it to badger someone in to paying for a license. If that person knows that it's invalid, eg because they know of certain publicly available prior art, then it is their choice whether to pay for a license or follow a legal remedy.
If a legal remedy is uninviting because of problems with the legal system this does not mean that "software patents are not fixable" it means that the legal system in general is poor.
Rather, he assumes that the legal system is poor, and reasons from that viewpoint. It's correct today, it'll be correct tomorrow, and it's unlikely to be different anytime soon.
You have hundreds of millions of dollars at stake, and the resources of the best patent lawyers in the world and the largest companies in the world up against (usually) a single examiner.
The current brokenness of the patent system is due to a snowball effect. If the patent office hadn't let the system slide out of control to the current state of brokenness, their examiners would have more authority to push back on anyone trying to push sketchy "inventions" through the system.
Reduce the length of time the patent is valid or remove the benefits of software patents, and you'll reduce the pressure on the USPTO pretty sharply.
That is overstating it. They are a reasonable idea, but it does not seem at all clear that anyone has ever proven them to be actually a good idea -- i.e. that they have a net benefit, even if they were properly realised and enforced.
Patents are supposed to be an inducement, but that rationale alone falls flat on its face once you realize that invention takes place in the absence of patent protections. Worse, patent protections make it more difficult to innovate as claims are broadened.
Disclosure is a laudable objective of patents, but largely unimportant as multiple parties come to the same inventions and talented persons reverse-engineer products (some of whom document their findings publicly). Enforced disclosure is not needed, irrespective of the protections awarded.
In industries where R&D is costly, patent protections are not needed when there is a first-mover advantage. Moreover, patent protections are not needed for commercialization, provided that the inventor continues to innovate after the first sale. Providing a guaranteed advantage to the inventor causes an overall harm to the market of the product, as the inventor has no incentive to improve the product or lower prices, because the inventor has no competition. Competition is healthy, and patents neuter it, leaving the market fragile and expensive.
All of these things can be demonstrated by analyzing the history of patent litigation. I can find no reason to support these rationale.
Without patent protection, that's not enough time to come close to covering the R&D costs, assuming the market for the branded drug shrinks in the face of the much cheaper generics.
copyright terms could use reform, though
it isn't as cut-and-dry in the pharma business, which is why most patent lawsuits and active trial involve pharma. the patent system is supposed to be simple, but the companies and the generic manufacturers are suing each other all the time.
copyright would just apply per-compound at a fixed term. the other way to do it is for the FDA (who are already approving drugs anyway) grant exclusive periods to new drugs before generics are allowed
Further, you'd want your protection to cover many modifications, so that a competitor can't just make a change to a non-functional aspect and piggy-back off your research. Otherwise you'd have the problem that new R&D wouldn't pay off, because competitors could just devise drugs that would use whatever mechanism you discovered, even if they didn't have the same physical embodiment.
What you end up with is a "copyright" that is - in practice - a patent.
Of course, the drug companies would probably love for their protection to last 75 years!
On the "found in nature" aspect, I believe some of the patented gene sequences are indeed derived directly from existing organisms, but are considered novel 'inventions' due to the labour and skill involved in identifying, isolating and applying them. Copyright doesn't really fit for that sort of use-case.
As things stand now, the only people I see benefiting from software patents are lawyers and the Patent Office itself, which I sincerely believe is more interested in collecting the filing fees than anything else.
Edit for source http://patentsusa.blogspot.com/2007/02/in-re-alappat-1994.ht...
The patent office is causing harm left and right by granting multitudes of ridiculous patents. If it won't stop by itself, everyone that has been harmed by such patents should join in suing it.
This is precisely the point the other article today by Nilay Patel—which was so lambasted here—was trying to make: the arguments being made about patents don’t necessarily point to tearing down the system, but simply fixing the things that are wrong.
Isn't it illegal to poison towns' water tables? That seems like a pretty severe flaw in your analogy, since presumably you don't think suing people for patent infringement and then offering to settle is or ought to be illegal.
There's also the fact that chemical companies provide clear social value: people buy what they make. With software patents, though, I'm unaware of any case where someone has reconstructed an invention from the description in the patent.
"Just because my theory doesn't work in reality doesn't mean we should give up on the whole theory! Society should suffer what they must until this human experiment is refined"
Let's try to make this more objective. What's the goal of patents, how is success measured, and why are patents the only way to achieve this outcome. Furthermore, how did we establish that intellectual protectionism is more advantageous than open ideas? You seem to be at odds with the open source community.
When you apply for a patent you have to show plans for producing the thing and and the price per license to give it out (no upper limit so if you want to only produce, set it to $10^24). For every year that you don't produce the thing and nobody licenses it, the officially recorded license price gets halved. For every year that someone does license it or you produce the thing, you get to adjust the price to whatever you want. Thus companies like Lodsys can only hold onto an unused patent for a fixed number of years before it becomes irrelevant.
Obviously the timing is not ideal: a better half-life for an unused patent might need to be adjusted. However, I think there is something to this idea.
Edit: A better way to determine the half-life would be to tie it to the initial price or the price at the time of reduction. Basically, no matter how high you start out, if you are a patent troll, your patent expires in 5 years.
Take one of the article's linked examples, the "Linked List" patent [0], what are the requirements in "producing the thing?" Churn out repositories all day that print random indices of random length, linked list? This idea seems hard to enforce on software patents, which tend to be the most disingenuous, along with most UI, UX, and form/material patents. Do I have my OS create trillions of glossy chat bubbles every day, on a large distributed network, to protect my trivial patent?
In this particular case the patent office should have laughed and rejected this patent outright, along with the rest of software patents.
If the fixed number of years is longer than the current 20-year limit, this solution is counterproductive.
In any case, 20 years of protection no matter who owns the patent is a terribly stupid idea.
that is worse than what we have now (damages were, until very recently, calculated on 25% of profit from the part of a product that violated a patent)
also, there are already stringent 'use it or lose it' provisions in most jurisdictions - they are easily avoided, and you only need a single state to become 'patent friendly' to screw it all up anyway
Hacker News / Digg style... vote up the novel patents and down the obvious ones, while commenting with conflicting patents or prior art... then the examiner can use this as input.
If the system is perfected eventually that examiner could be eliminated. This also would create jobs in the private sector as companies would be inclined to hire contributors to this process to protect their interests. You obviously need transparency to see who's providing this feedback to prevent abuse, but that's a minor aspect.
Finally, IMHO software patents specifically deserve more stringent guidelines for patentability. There's no intrinsic technological worth in a major percentage of software patents. "It's software, if you want a word processor I can make you a word processor"... if you want a button to tap and order something instantly, I can make you a button. Now, if you want a button that can be clicked by millions of people over a minute, there may be some novel technology behind that. These differences need to be isolated.
If you're an entity that has bought a patent (but is not its original inventor), you get two years to implement the invention before that patent dissolves. And unless you are an active competitor to companies you aim to sue over said patent, you are not entitled to sue them. Those two things eliminate the nefarious motives both for selling, and for buying patents.
Those restrictions would not fully apply to the original inventor. If the patent resides with its originator, then the patent does not have any statute of limitation before dissolution (perhaps they reserve the right to bequeath?). But they can't litigate with that patent unless they're an active participant in the market to which the patent applies.
I'm sure there would be lots of refinement clauses, but those are the broad strokes, as far as I'm concerned. Does this seem just too pie-in-the-sky? If so, why?
There should be a cost of ownership involved that is somehow relative to the gains from the patent and its value. Patent troll companies exist because it's too cheap and easy.
I can't imagine the details but ideally this cost would direct companies to only consider patenting ideas that would exhibit an actual novelty and also a reasonable profitability expectations. This would validate both the new and useful aspects.
Filing patents the conveyor belt way would be too expensive and even if given the money, filing patents without merit wouldn't yield profits. I don't know how to link merit and money, and I don't know how to not exclude small players from the market but cost has notoriously a pretty good chance of keeping things in some control.
Clearly the problem is that the novelty clause is not being enforced in any meaningful capacity.
The deeper problem of course, is that a hundreds-year-old institution is just incapable of dealing with the concept of software. The pace of development is orders of magnitude faster, and the cost is orders of magnitude lower than the type of innovation that patent law was originally designed for.
Imagine if you came up with a particularly clever idea in software and you got two years exclusivity to capitalize on it, assuming that the patent application included the actual code. If the novelty were properly enforced, I can imagine how such a system could offer an incentive to innovate and provide "open source" code to the world at large.
Of course I don't have any faith that the bureaucrats have the capacity to make such a thing happen, so honestly we're better off without software patents entirely.
One is Google sized, and the other one is patent troll business model.
The Google-sized problem has large legal teams at each others throat. i.e. if a patent doesn't have sufficient novelty, Google has sufficient resources to get it invalidated. The definition of novelty should be tightened. I would love to link it to an objective measure of brainwaves of those familiar with the arts, looking at the level of surprise and delight at a solution.
The patent troll business model is a shakedown business model, and I'm also looking at general copyright infringement over file sharing as well. This requires legislative change to require a "reverse class action lawsuit" if a firm intends to send out identical complaints to more than say, 100 defendants. This enables the defendants to band together to fight these in the courts.
I don't know the value of patents in other fields. There may be areas where patents accomplish the purpose they were designed for.