Patents are out of control, and they’re hurting innovation (2017)

I have a patent, so I've touched the system a bit.

It doesn't make any sense. There's no way reading a patent helps anyone understand anything, because the whole thing is done by lawyers, not engineers. Even reading the patent I applied for does not explain to me, the person who came up with the idea, of how it works. (Long story, not willing to get into it.)

The whole idea needs some kind of evidence that it works. We can all imagine that maybe if there weren't patents, certain things wouldn't get invented. But that experiment happens in people's heads, and the outcome depends on how they are invested. And it's not easy to come up with reasonable evidence, there would be a lot of confounding issues, such as whether patents themselves stop certain beneficial things from happening.

From what I can see a huge amount of innovation is called off due to patent uncertainty. I have a friend who is an inventor in the medical field, and quite a lot of the ideas he comes up with are junked because he's found some patent in a database that sounds too similar. At the same time he has to pay a tax to the lawyers on a bunch of low probability inventions.

It should just be a free-for-all. You see someone with a better mousetrap, you make a better mousetrap. You compete on actually bringing it to market, which is not the same thing as whatever you think the innovation is. Surely that creates the most value for society, or at least should be the default until the quite high hurdle of evidence for patents is cleared.

Won't that mean nobody thinks about better mousetraps? No, people will just think of better mousetrap production-and-marketing ideas compatible with this legal environment instead of what we have now.

Patents were never about "encouraging innovation". Originally they were a money-making scheme for the Crown and quickly evolved into a pay-to-play scheme whereby patents were granted on things like salt (See: https://en.wikipedia.org/wiki/History_of_patent_law).

Eventually they evolved into what we now know as "intellectual property law" in the 18th century and that system was all about disclosure. It had nothing to do with "encouraging innovation". What's most interesting is that even back then patents were being abused and hindering innovation. See the info in that Wikipedia article about Boulton & Watt preventing improvements to the steam engine.

The simple truth is that patents are not required for innovation and they were never intended to protect individual inventors; they were designed to protect business interests. To allow established players to keep the up-and-comings out of their markets.

In my adult life, I have seen two small niches completely explode the instant the underlying patents expired: mechanical keyboards and 3D-printing. In the former, companies like Kailh started off producing copies of existing Cherry designs, but they've since expanded to their own original designs which in my opinion are vastly superior. At the same time, the original Cherry design's monopoly allowed the community to center on their shape and mounting mechanisms as a standard (despite the fact that they're not great and can be improved). If it were a free-for-all, I feel like there would be a lot less consensus on the form factor.

I think the world has outgrown our current approach to IP, but as long as it continues to suit the needs of those who already hold resources, nothing will change.

Former USPTO patent examiner here. As the article suggests, the main problem with overly broad patents comes down to a lack of time given to examiners. Can't find it in the time given? You'll often be told to allow the application (that is, grant a patent). Other "solutions" like punishing examiners for making bad allowances (which seems to be the current focus at the USPTO) are just band aids on the problem. The amount of time examiners get was basically set in the late 1970s based on some IBM study from the 1960s as far as I'm aware. There have been some increases in time since then but if the number of documents to search is increasing exponentially in time, a modest increase in time is not enough, period, even accounting for the fact that searches are computerized now.

I wouldn't have minded staying at the USPTO for longer if I was given more time. The lack of time was the main reason I quit.

My understanding is that the time issue would be more easily solved by better funding the USPTO. Right now the USPTO is funded only by fees they charge, and the Department of Commerce diverts some of that funding outside of the USPTO. Fund the USPTO via taxation in addition to allowing the USPTO to keep the funds it brings in and I think we'll start to see improvements in the time given to examiners.

(There are other issues, like the fact that examiners barely get any more time for having more claims. Typical patent applications are 20 claims, but I only got an hour more for examining a particularly annoying application with over 40 claims. That's over twice the work with barely any more time! By the way, the USPTO charges the applicant extra for these extra claims.)

There are other patent quality problems that I think come down to the incentives of attorneys. Too many patents are written in vague legalese that no "person having ordinary skill in the art" would understand. As an examiner I was told that I could not do 112(a) rejections for those sorts of things (this is the sort of rejection it would fall under) and that seems to be typical USPTO policy.

One of the best discussions I ever heard was from Stephan Kinsella when he discussed the patent system as a system of negative servitudes or negative easements (https://www.stephankinsella.com/paf-podcast/kol365-guest-lec...). Essentially IP is similar to joining an HOA, which might give you negative rights in your property such as the inability to use it as a dump, the inability to paint it bright pink, etc. but with IP your potential competitors are petitioning the USPTO to create negative rights in property you already own.

In general, for anyone with a general interest in the anti-IP position, the following resources are good:

* C4SIF - Center for the study of innovative freedom - c4sif.org

* The Case Against Intellectual Monopoly by Michele Boldrin and David K. Levine - http://www.dklevine.com/general/intellectual/against.htm

A few months after I left a company, I got an email from their attorney telling me to sign an invention assignment form. No other information, so I asked to see the provisional patent that I was asked to assign to the employer -- after some back and forth they forwarded it to me. The provisional broadly described an entire academic domain with no specifics whatsoever. Imagine something like "you can use data to recommend things to medical patients." No specifics about what the "data" or "recommend" or further defining which patients.

A long time ago, a former employer sued me for stealing their trade secrets but wouldn't tell me what trade secrets I stole were. After a few rounds of litigation, the employer admitted the "trade secret" was a literally a section of HIPAA. Shortly thereafter, the case was dismissed with prejudice and the former employer paid my legal fees (and then some for the trouble). It seemed clear they knew there was no merit to their accusations, but it was more about a vindictive smear campaign. (also, belated thanks to HN... my plea for help to this forum was met with a referral to an attorney that ended up successfully sorting this issue out for me)

That experience scarred me enough to basically refuse to sign the ambiguous invention assignment agreement from the first paragraph. You don't know how the companies will use these patents, and even if a patent isn't granted you're often still asked to assign any rights to the invention. An overly broad invention assignment form opens the possibility for organizations to come after you with meritless lawsuits claiming you're using the company's property in your future work... which, even if you know you'll eventually prevail, it's still a total disruption to your life.

This whole system is broken.

Patents encourage this idea of, "it's the idea, not the execution that matters". You see this propagate in start up land where new founders want you to sign an NDA just to pitch to you. The whole thing is silly. I don't think ideas are nearly as original as we would like to believe. Pretty sure every one of us has seen some thing come out that we replied, "hey, that's my idea!". I think we tell ourselves that the big guys with the money just want to steal our idea, and patents protect the little guy. But it would take more money to patent something (legal fees) than just go out and build it. Investing and manufacturing companies have pivoted to a "prove to me your idea is useful by making a small business first" model, which, essentially invalidates the theoretical purpose of patents.

Patents are one of those things that seem like a good idea, and probably was for a while. Then people started playing by the letter of the law instead of the sprit of the law and it all went to hell.

You know the phrase "best thing since sliced bread", well the sliced bread machine was patented and now we all have sliced bread. That is the way it should work.

I watched a mini-documentary (FSF supported) on patent absurdity many years ago, which still rings true. (http://patentabsurdity.com/watch.html)

Granted, in the meantime, we've had some SCOTUS rulings which are more or less anti-software patents, but it's all too common for them to reverse circuit court rulings which are almost always pro patents.

A friend of mine is retired from pharmaceutical research. Where he did a lot of computer work. His wisdom is that the ease of patent granting should vary enormously by the type of invention being patented, and difficulty of being a credible would-be inventor in the field. And the thing patented must exist, and actually work. (So no "if we use some unobtainium..." patents.)

So - invent a new drug (for humans), where safety regulations guarantee that actual approval to sell the drug will cost many, many millions of dollars? Patentable. (Yes, there are other issues with modern drug companies & patents - Not. The. Point.) If somebody comes up with a working, practical fusion reactor? Very patentable - that can't have been cheap to do, and "thousands of experts have been trying for decades" is proof that this inventor really is something special.

Vs. software, abstract ideas, waterbeds, scanning to e-mail, a clever new way to peel potatoes, etc. - sorry, but patents should simply not exist for such stuff. You can only copyright your code, trademark your brand, etc.

This comes up every month or so.

If you'd like to get rid of software patents, the lawyers, company management, and professional societies are not going to help. Band together, get a Congressman to introduce a bill, and then start pressuring candidates to support it.

If you write an op-ed about this, your opponents will cite medical and biological patents to defend "patents as an abstract idea." They will muddy the issue. The only way to defeat that is to separate out "software patents as a bad idea" from "worthwhile inventions that deserve patenting." You, yourself, might want to abolish all patents, but that proposal will face a blizzard of opposition.

The court has demanded that patent examiners who make a finding of obviousness cite documentary evidence for each feature in a claim, no matter how mundane or obvious the feature is. But what if the feature is so mundane no one would write about it? The paradoxical result is that the more obvious a feature, the harder it can be to prove obvious.

This is nonsense. Things are "generally known to ones ordinarily skilled in the art" can be ruled obvious and are all the time.

One researcher estimated that, for software-related inventions, about 50 percent of patents are likely invalid, even under the existing permissive standards for validity.

It's more like 90%, and I've read hundreds of them.

Patents are like a brake that society applies to itself, only to enrich lawyers.

And there are certain countries that are not dissuaded by patents, where innovation will not stop. For a while at least.

One positive thing I found about the work I patented, was that because the work was patented (and thus public), we were able to speak a little more openly about the innovation we made. The alternative is that every innovation is a trade secret, which is also not ideal.

I'm no where near an expert and I'm not a big fan of software patents,

on the subject of prior work, and just thinking out loud, but I wonder if USPTO could set up some rules whereby the person asking for a patent has to do some sort of search for prior art, in order to get the patent

and if they don't or do it badly/ not to the rules, then a penalty is applied, financial or immediate ban on patients?

It would help if we could enforce a requirement that the holder is actively using or at least further developing whatever it is.

My go to example here is 3D printers. The basic way that 3D printers work (FDM) was patented in 1988. That patent finally expired in 2009, and the explosion in 3D printing is entirely driven by the open source community. Most of the designs and firmware for consumer grade hardware came from the RepRap project, including my Creality printer. Heck, my printer uses an open source firmware designed for the RepRap project straight from the factory.

It's probably a good thing that the inventors of FDM got compensated in some way, but it's also hard to not come to the conclusion that Stratsys owning all the 3D printing patents basically held back 3D printing for a long time.

I am very disillusioned about the vast majority of patents and patent holders.

I was part of a group working on getting patents. That is right - we weren't necessarily trying to solve anything but literally just brainstorming possible things we could realistically patent. The rest of the process then devolved into, "how this will look and sound to the committee or the board" rather than being about the functionality. I couldn't stand it and politely excused myself from the group.

The whole experience left a very bad taste with me about the patent system in general.

I can't think of how the process should be improved because I can see how a stricter vetting can stifle _real_ creativity but the current process is not good.

The article is interesting, and while I do generally agree with loosening intellectual property restrictions, the tone makes this feel like it's preaching to the choir, instead of making a claim and trying to get more broad agreement. I suppose given the source there are some assumptions that can be made about the audience, but at the same time starting off the article with "every one of these claims is like a new federal regulation governing private conduct." kind of tips their hand on their perspective.

Patent applications should be published online right away so they can get roasted by the whole internet. This follows the principal of Cunningham's Law "the best way to get the right answer on the internet is not to ask a question; it's to post the wrong answer."

Generally strong IP rules tend to favor the less wealthy, weaker IP rules tend to favor those with the most capital. That's why billionaire Mark Cuban is funding things like this article. When people say things like "just out execute in the marketplace" what they are really saying is just pour millions into the project. Not everyone has millions and one of the foundational principals of US society is that a poor person with a good idea should be able to get rich. How rich and what they should do to qualify for the patent is worthy of debate. For example patent holders should have to be a "practicing entity" (aka a real business) working to deliver the innovation to the market.

The patent system should be better not gone.

It’s time to get rid of patents and reduce copyright to a couple of years. They’ve become ridiculous vehicles for crony capitalism, rent seeking and anti-competitive behavior.

I see patents as a mechanism for extracting tributes for the US Empire / sphere of influence. So while patents hurt innovation they are probably less hurtful than alternative methods of extracting tribute.

Wouldn't patents protect a small software development company from having their product ripped off by one of the giants? Essentially force the giant to buy out the smaller developer?

And nothing changed since.

People don’t get it. The sole purpose of patents and intellectual property is to give a reward function to large capital allocators. Capital is heart and sole of any society, it is what builds skyscrapers, cars, toothbrushes, shopping centers, internet backbones and everything you can think of. If that capital does not have a reward function, it will build the wrong shit. It would be like a cell making the wrong proteins — you don’t want that.

Like everything, it’s only as good as it’s implementation. I think it would be better if a patent was awarded only after a profitable demonstration was built and running maybe with a pre-patent filed beforehand. It’s insane that a guy can sit at his desk and patent things arbitrarily — how is that providing guidance to capital? And I think the patent should withstand ongoing demonstrations of actual implementation.

And also, we need to get rid of arbitrary litigation because that just makes everyone afraid of other peoples patents. It would be easy to get rid of that.

Patents actually incentivize innovation - not hurt it.

Useful innovations are those which help society. Things that enable "standing on the shoulder of giants". Society values those innovations.

Often, the simple innovations are the best ones - yet, the simple innovations are also the ones most easily copy-able.

But, if something is easily copy-able, then one hesitates making those ideas public - for fear of copying and undercutting by competitors. Studies have shown that typically ~80% of R&D ends up as wasted effort (those 23 forks embarked on to realize #21 was the best).

So how can society encourage innovations to be made public? By providing incentives - such as patents - which are a limited time monopoly in exchange for fully describing the idea. Once the limited time monopoly expires, it is free for all - but in the meantime, others can read and understand the innovation - and either workaround (and provide society ANOTHER idea) or improve upon further or simply spark another idea.

Open societies out-proposer closed societies.