EFF: Tell Congress: We Can't Afford More Bad Patents
act.eff.org
act.eff.org
1) Limit the number of patents granted every year. Patents worked fine 100 years ago, when there were fewer of them. The standards for things like "non-obvious" should increase to keep a cap.
2) Ban patents on anything which only became possible in the past ≈10 years for reasons unrelated to the filer. E.g. no patents on anything which requires ChatGPT until ≈2030, so there is time for prior art to build up and to learn what's obvious.
3) Change patent duration by domain. 20 year software patents make no sense (5 year ones seem okay). 5 year patents on e.g. aerospace seem to make no sense (20 year ones seem okay).
4) Make an open process where anyone can cheaply and easily attach prior art to a patent and try to invalidate it.
5) First-to-invent / first-to-file makes no sense, as it seems that if two people invented the same thing at the same time, that should set a strong presumption of "obvious." If two people file for the same patent, unless one is very clearly first in all respects, each should act as prior art for the other.
For every point, you have to take a subjective decision that is in no way trivial.
1) Additionally to what happens today now you need to compare patents (how would you increase the cap for non obvious if you can't say A is more non obvious than B)
2) Additionally to what happens today now you need to decide if something was possible 9 years ago. Our search tools are not that great at "present me the image of 9 years ago" and even then not everything is public, etc.
3) Additionally to what happens today now you will have same patent applied to multiple domains with small variations.
4) Yet another process, which now happens in court if someone thinks the patent must be defended (a granted patent does not mean it can not be later invalidated)
5) How do you decide very clearly first ? No improvement versus today.
I do agree with you though that the current system is not ideal. But a simple change like reduce to 10 years the duration might be the best next step (and while I like 5 years idea, making big jumps has more chance of push-backs from invested actors)
Have you ever been through a non-trivial patent filing process? Any other non-trivial administrative law case? A non-trivial court case?
This is precisely why these processes are so complicated, both under the rules I proposed and the rules currently in place. It's why we have judges and lawyers. The way policy happens is people float ideas, much as I did, and as other people have. Those get discussed at a high level. If something looks reasonable, people do deep dives and work out the details. Those are further smoothed over as laws translate into regulations, and the contours are defined in case law.
I don't think your comment reflects an understanding of the problem we're trying to solve, which is narrowly patent trolls, and broadly, that it's impossible to do anything without inadvertently stepping on a dozen patents.
WE NEED FEWER PATENTS.
> 1) Additionally to what happens today now you need to compare patents (how would you increase the cap for non obvious if you can't say A is more non obvious than B)
You don't need to compare. The patent office administrative apparatus needs to adjust the bar each year. There's already a bar set by them. That's the point of delegating to an executive branch -- they can make changes like this one quickly.
> 2) Additionally to what happens today now you need to decide if something was possible 9 years ago. Our search tools are not that great at "present me the image of 9 years ago" and even then not everything is public, etc.
Same as prior art. A patent examiner looks and has a discussion with the patent filer. It can be invalidated in court.
> 3) Additionally to what happens today now you will have same patent applied to multiple domains with small variations.
Which I would like to reduce or eliminate. When LSA was invented, there was a swarm of patents applying it to every which domain, making it impossible to do much of anything.
> 4) Yet another process, which now happens in court if someone thinks the patent must be defended (a granted patent does not mean it can not be later invalidated)
With one difference -- and this was lack of clarity in my writing -- my process kicks in at the time a patent is filed. If I want to avoid patent trolls in my domain, I can set up a search for relevant patents.
> 5) How do you decide very clearly first ? No improvement versus today.
This is simple. I am switching from OR to AND. You have to be first-to-invent AND first-to-file. If you're first-to-invent, and I'm first-to-file, neither of us gets the patent.
Indeed, if I'm first-to-file, but you can show that you invented before I filed, no patent is granted.
The improvement is fewer patents.
> needs to adjust the bar each year.
You make it sound like this is moving a slider - I have strong doubts this is the case, someone need to write a description, explain it, make sure people understood how to interpret it. Doubt that changing rules each year would work well.
> A patent examiner looks and has a discussion with the patent file
You seem to agree that this is additional work.
> Which I would like to reduce or eliminate.
Making a policy must take into account side-effects. The intention can be good but the result of it can be bad
> my process kicks in at the time a patent is filed
One more process? There is a search already when you fill (or pre-fill don't remember the terminology) something. In my limited experience, results are - let's put it mildly - average.
> if I'm first-to-file, but you can show that you invented before I filed, no patent is granted.
What is the difference with today? But this is easier said than done. Patent language is complex, details are very minor and people will argue very every little thing.
Fewer "active" patents and "less incentive to be a troll" would also be obtained by reducing drastically the granted period and that is clear and simple to implement.
If a system is implemented with this as its primary guiding principle, what you will end up with is fewer good patents, and a vastly higher proportion of junk or actively malicious patents.
We don't need fewer patents. We need to eliminate software patents, better fund the patent office so it can employ enough people to properly review all the applications it gets, and probably do something different with biological and pharmaceutical patents (too many of these are built heavily on public research, and AFAIK it's far too easy to make small changes and get the original patent extended if it's still lucrative).
I don't think it's about the number of patents. In the distant past, patents were intended to allow individual inventors to monetize their invention for some time by selling licenses to companies.
Today, patents are mostly used as a weapon in corporate warfare and by patent trolls to extort money from companies, both a complete perversion of the original idea.
Not sure if it is possible to return to (and enforce) this original intent of protecting the individual inventor, but if not we should just get rid of the whole broken patent system in general.
The system has to become again "healthy" to foster real innovation and competition, not a garbage bin to block each others.
Maybe companies shouldn't be allowed to own a patent. If a patent is always owned by the original inventors (so it moves with them if they change jobs, and any patent license fees always go to the inventors), it would help. But I guess there's always loopholes in such simplistic ideas ;)
That's what I fear is not the case anymore. And I am not sure we're getting back there. With so many regulations in all industries, it has become impossible to innovate from your home. Unless you really want to patent BS like big companies do, which is ugly...
It sucks, but that's how it has become.
If you want to protect such minorities, you can offer them a discount, but make it clear indeed that the patent belongs to the individual for even longer, not to the company.
Doing nothing as it has been until now certainly doesn't help.
My suggestion is 1000 USD in year 1.
After 10 years the fee is 1m USD per year.
After 20 years the fee is 1bn USD per year.
The current schedule of 23 years aligns nicely with this. If a Pharma patent is really generating billions of returns then maybe it would be worth for the company to pay 8 bn USD fees in year 23.
This is a terrible idea. Google will not think twice before spending 100k for a patent on hello world, but startups and small businesses would be priced out of the patent system entirely. All this would do is further increase and entrench the power of large corporations to the detriment of startups, entrepreneurs, SMBs, and ultimately, consumers.
I think this is too much of a simplification. Imagine the case of blue LEDs. It was known that these would have a huge market, and there were probably 100 different research groups around the world spending millions of dollars and thousands of hours trying to determine how to make them commercially successfully - even with some early weak prototype and research papers. That's clearly not 'obvious'.
In our history, one team (well, really an individual) managed to perfect the process first, but it could easily have been two or more teams randomly hitting the same solution at almost the same time.
I'm not sure what the 'right' thing to do in that circumstance would be - award it to the team who happened to try 'x' first, the team who filed first, or shared somehow.
But my point is that simultaneous does not necessarily imply obvious.
I think this illustrate another point: patents should protect inventors, not companies. Companies shouldn't be able to amass a "portfolio" of patents to bully their competition either.
To be honest, it'd probably help my employers too. If that was the case, I'd have dozens of patents under my belt. As is, I see little upside to applying for patents for my employer.
My general feeling is that the price of a patent application should grow in some non-linear way with the number of patents. Having a few, targeted, focused patents should be cheap. Google has around 100,000 patents (source: random web site; could be wrong; if it is, swap out for any other big company and big number).
For reference: Patent office fees for various services are currently $100-$1000. Legal fees are probably $20k-$100k. The patent examiner has very little time and capacity to do a good job, and there is a resource mismatch. In abstract, an alternative would be a smooth rise in costs along the lines of:
- First patent is $50
- Tenth patent is $500
At this point, moving from individual-scale to corporate-scale:
- Hundredth patent is $50,000 (so about equal resources to both sides)
- Thousandth patent is $200,000 (subsidizing the individual patents)
- Ten thousandth patent on is $1M to file
In practice, this hides a lot of complexity. I think the biggest problem I can't think for how to solve (suggestions welcome!) is the corporate shell game. Google sets up a thousand subsidiaries, each of which files 100 patents.
Perhaps a simpler alternative:
- Individual personally filing a patent: $50
- Individual with lawyer / LLC / S-Corp / small business: $5000
- Private C-corp: $50,000
- Public C-Corp: $100k
In which case - Google, rather than applying for patents itself, offers a patent purchase programme for employees. It will buy every patent filed for by it's employees as "Individual personally filing a patent" for 1000 USD.
Transfer fees are not a bad idea in either case. If a company goes under, it often leaves a portfolio of patents which get auctioned off to the highest bidder. There should be some minimum bar there.
One other idea would be to require a working prototype to be demonstrated as part of the filing otherwise the duration of the patent would be halved.
The problem is not the number of patents. If you limit that number, what you will get is a host of patent trolls and other largely-bad actors optimizing to be the first to get each year's patent quota.
Market will decide which patents are worth maintaining for 20 years, and government get proportional revenue as well.
They could fund the keep-away of basic things like "ordering x on your phone" with the proceeds from being the only actor allowed to do that. Fundamentally exploitable system incentives.
Look at the EFF's example. Say it's 1987, you've been playing with AOL for a bit, and you realize that someone might want to use a computer to do stuff like ordering pizza deliveries. You file a patent where your "invention" is "okay it's like pizza ordering on the phone but you do it with a computer instead." Then you pass it through a lawyer who draws up some diagrams to make it look like it's an invention, and boom, patent US4797818A is granted and you now control the entire online food delivery ecosystem until 2007. Oh, but then someone else says "wait, what if the customer does that but USES A PHONE." Well, now they own that for 20 years, so now you both can arbitrarily limit this space. Great. Oh, but now swomeone says "oh, but what if you do this and also the food is displayed IN CATEGORIES!" Well now he's got a patent, too.
It's madness. The problem isn't that it's too cheap to acquire and maintain these. The problem is that these are so obvious that they are no longer inventions.
'letting legalese define good/bad patent, we should let the economics work it out.'
If 'legalese' cannot define good/bad patent anymore, there is nothing stopping such a silly patent that I propose.
You don't see any problem with pouring huge sums of money into developing something, only for a competitor to copy your idea and undercut you? As an inventor, why would I bother putting in all that effort knowing that would happen?
(Don't get me started on the stock market: that has nothing to do with actual investment.)
Secondary markets support "actual investment" by allowing early investors to cash out. An investment is far more attractive to you if you know you can offload it to someone else and get the net present value immediately, rather than waiting years/decades for it to pay out. For instance, if a nuclear plant takes will last 80 years but will take 50 years to break even, why would a 40 year old bother to invest? By the time it breaks even you'd be long dead.
If they require disclosure of enough information for the technology to be (in principle) independently reproduced, patents are worth it. I'd even argue that patent terms could be extended, in some domains, where that's necessary to ensure a return on investment. Copyright is, in principle, worth it, though the term is currently far too long and the laws can be abused for unrelated things (e.g. DMCA ink cartridges).
But the stock market is not worth it. The invisible hand of the market can remain irrational far, far longer than you can remain healthy and fed with a roof over your head, surrounded by friends and beautiful things. Let us not sacrifice what is good at the altar of the invisible hand.
The real estate market is similar: housing is for living in, not for speculative investment. The market incentivises real estate owners to ensure there aren't enough houses to go round, driving up house prices – but they usually forget that they can't actually sell their only property, so this only benefits landlords. (Irrational behaviour, sure, but whoever said humans were rational was a 20th-century economist who never read Adam Smith.)
Large infrastructure developments used to be handled at the community level, and in many places, they still are. For something as large as a nuclear power plant, that'd be your regional council or your national government. Hundred-year investments have to be made at that scale, anyway: that's what your secondary market proposal is about, after all. The stock market is only one (highly-flawed) way of organising things.
People do not build sheds in their gardens because they expect to be compensated: they build a shed because they want a shed. People do not work because they expect time and labour to be returned to them: they work because they get other things out of it. We should not assume that investment of resources yields fruits in kind – but the stock market cannot but make that assumption!
How does this work for "obvious" patents like "[x] but on [y]" that the sibling was talking about[1]? I think that's the patents that attract the most ire, rather than pharmaceutical patents that don't allow you fully reproduce the drug or whatever.
[1] https://news.ycombinator.com/item?id=39763707
>But the stock market is not worth it. The invisible hand of the market can remain irrational far, far longer than you can remain healthy and fed with a roof over your head, surrounded by friends and beautiful things. Let us not sacrifice what is good at the altar of the invisible hand.
So basically what you're saying is "people can't be trusted to price things correctly, therefore we should ban them from being able to engage in exchange of assets?" This is, to put it mildly, "throwing the baby out with the bathwater".
>Large infrastructure developments used to be handled at the community level, and in many places, they still are. For something as large as a nuclear power plant, that'd be your regional council or your national government. Hundred-year investments have to be made at that scale, anyway: that's what your secondary market proposal is about, after all. The stock market is only one (highly-flawed) way of organising things.
This is eventually going to break down to "central planning vs free markets", which has been litigated to death elsewhere and probably isn't going get resolved by two HN commenters.
>People do not build sheds in their gardens because they expect to be compensated: they build a shed because they want a shed. People do not work because they expect time and labour to be returned to them: they work because they get other things out of it. We should not assume that investment of resources yields fruits in kind – but the stock market cannot but make that assumption!
The shed example actually shows a lot of problems with your line of thinking. Sure, for a project like a shed in the typical case, you can be reasonably assured that whatever utility can get out of the shed (eg. 15 years of storage) exceeds the cost you put in (eg. $1000 and a weekend's worth of work). However, that's not guaranteed to be the case. For instance, you might not be able to use the shed for the full 15 years, eg. if you're planning to start a family and need to move in 2-3 years to a bigger home[2]. If that's the case, the economy (as a whole) would still presumably benefit from the shed getting constructed. Future occupiers of the property presumably would have storage needs as well, for instance. You might not be able to use the shed enough to recoup all the resources you put in, but other people will. However, the shed doesn't end up getting constructed because the person paying for the construction can't capture all the utility. In a world with markets this wouldn't be a problem, because if the shed is something that other people would appreciate, it will boost the value of the home, which would allow the current owner to capture the full value of the shed even if he moves out in a year.
[2] you might argue that sheds are such a slam dunk proposition that even using it for 1 year would justify the construction cost. Even if we grant that's the case, not every investment opportunity in the economy are slam dunks, and arguably we shouldn't restrict ourselves to investing in only slam dunks.
The reason why the Western countries have achieved their dominant position in the modern world is because at some point, a few centuries ago, the secrecy of the manufacturing guilds has been overridden by the new trend of publishing openly any new discovery in science and technology, while the countries like China, which have remained dominated by secrecy, have remained stagnant during the fast evolution of the European countries.
The Silicon Valley has become what it is because in the early days of the electronics industry the concerns about "IP" were minimal, every new discovery was published and it spread quickly among all companies located there.
Then gradually the "IP" protection has increased, the competition has diminished more and more and the pace of innovation has slowed down proportionally.
It is extremely rare that those who have the original idea for a patent are also able to discover the follow-up innovations that are necessary to convert an idea into a successful product.
There are very numerous examples of patents which have been almost never used in anything useful as long as they were valid, but immediately after expiration many companies were able to make good products based on them.
What happens when the idea in question takes a non-trivial amount money to develop, and you want to avoid a prisoner's dilemma situation where nobody wants to put in the investment?
Any patent worth the upkeep for first 10 years is probably worth keeping it.
source that "the insulin racket" was "trivial" to research? Yes, insulin was discovered more than a century ago, but that's not the thing that's patented today. All the expensive insulin are enhanced versions that are better in some way (eg. lasts longer, reacts sooner). If you want the old, crappy, and non-patented kind, you can get it at walmart for less than $25.
>financed by the government anyway.
Basic research that the government finances doesn't cover the billions of dollars needed to bring the drug to market.
If the drug doesn't sell a lot and is never profitable, then the patent gets dropped earlier to avoid sinking more costs.
If the drug cures cancer and makes millions, the company can easily recoup its cost up until the upkeep is too much, at which point surely it would be better for society that the drug be open for everyone?
Pharma companies are massively profitable, the argument of "think of the poor pharma companies doing r&d and their costs uwu" isn't really valid.
And as mentioned, patents are super expensive. From talking to some people it varies significantly depending on your details but probably starting is ~10-20k per patent.
Patents nowadays are used by rich entities as barriers to entry to industry.
The whole system is broken.
Most patents are to scare people like the average Joe that opens up a company and needs to be careful about a whole bunch of things. In reality, competition is so brutal that nobody gives a damn - and at very high levels, they will find a way out. Plus, to if we knew all the patents existing, there would be no new companies - you can't patent obvious stuff, yet they do it.
Especially in our industry, we could have a better life without a lot of patents - mostly trivial stuff which shows how stupid our system is and why countries outside our system laugh at us.
Hard-core stuff like covid vaccines and unique innovations which outside countries feel cybercrime is worth doing - that's probably the stuff you want to create a patent for. Although I have my own ethical view that vaccines and health-related discoveries should be open, but yeah, that's another topic.
The rest is literally garbage that has to feed a broken system for the sake of keeping the system alive.
USA is in some cases really worse than EU countries in terms of modernizing things.
Until that's done, patent "reform" is a sham.
Anyone who patents now some kind of software algorithm is able to write any practical implementation of the patented algorithm only by incorporating many techniques that have been invented earlier, but they have never been patented, even if typically they would have had much better reasons to be granted a patent than the newly patented algorithm.
If it would have been possible to patent software since the beginning, the software industry could never have existed, due to mutual destruction that would have blocked any development.
On other hand idea of compressing something should not be patentable. If someone can read few lines summary of patent and come up with solution that does same thing, but might not be interoperable no you should not get patent.