Even experts get it wrong
notch.tumblr.com
notch.tumblr.com
> Its amazing to see so many people loyal to this game maker. Good on him.
Eh, didn't take the time to consider some of us are against the patent bullying, and not just fanboys.
> 1. I am not the inventor of the patent in question.
> 2. The personal attacks are a bit much don't you think?
As long as people aren't doing anything illegal, I don't see why they should refrain from letting you know their displeasure.
This blog post doesn't give enough context. My google searches say he is backing up the company, but distancing himself personally from the lawsuit.
http://www.escapistmagazine.com/news/view/118649-Uniloc-Crea... http://www.computerandvideogames.com/359452/uniloc-founder-r...
> Patents are there to stop people stealing a technology you invented and letting you have a fair shot at making a living from it. If Uniloc wants to test this in court it is there prerogative, the same way that Mojang contested the use of the copyright term "Scrolls" and took people to court.
As notch pointed out, he is throwing around the word theft when patent infringement isn't theft(for the simplest example, consider 2 people independently discovering/inventing something), and Bethesda took Mojang to court, not the other way round.
Actually, that's exactly the purpose of patents. Patent legislation casts a wider net only because there's no effective way to assess the validity of someone's claim that "I invented this independently and was uninfluenced by your invention."
You and notch are in the technically wrong column on this one. Compare to: "Life jackets are there to prevent drowning". "No, they also prevent swimming under water".
Definition of STEAL
transitive verb
1a : to take or appropriate without right or leave
and with intent to keep or make use of wrongfully
Definition of APPROPRIATE
transitive verb
3 : to take or make use of without authority or right
Secondly, there's a difference between what's being argued here and the common "copying isn't theft". Notch is pointing out that patent infringement doesn't even always involve copying. Sometimes it's just rediscovery.
Either way I think that one is arguable. Can you still enjoy free use of your identity once it's been used in this way. Remember in this that your "identity" is not your real identity attached to your person it's your identifying details as used by banks and such.
Having published creative works on the Internet myself, I certainly understand why so many content creators try to prevent unauthorized copying. You really do feel vulnerable. Something you're very proud of has been shared with the world, and now it's in some seedy part of the Internet, with forum dwellers making fun of it.
I've noticed that as social creatures, we're unable to have empathy for corporations. There's nobody to feel guilty towards when you download that copy of Autodesk Maya. I don't think our brains are designed for it. We like individuals and small businesses because we can fit a picture of the actual people inside our heads. We feel guilty when we infringe upon their copyrights, because we know it might actually hurt them personally.
Most illegal acts can be boiled down to emotional damage. As pointed out elsewhere in this post, the right to property is an abstract concept. You _decided_ to hold onto that object, and you're unwilling to part with it. It doesn't seem abstract, because it's something our brains instinctively do, but it has no root in physical reality.
Why is murder a crime? Supernatural beliefs aside, the victim most certainly doesn't care anymore, because he's dead. As we all know, the problem is the emotional and financial damage to the people left behind. Prison sentences serve to control this damage.
Can a large corporation feel emotional damage? Should these laws apply if there is no emotional hurt? Everyone can see that a large company like Adobe is nowhere near going bankrupt, and their employees are most certainly not hurting because of piracy. Adobe has money coming out of its rear end.
Perhaps our laws should offer less protection if you're big and strong. Vast swaths of the world's population are happily breaking copyright law, and _not_ feeling guilty about it. Some shades of gray are clearly missing here.
Just to go off on a tangent for a moment, this is another reframing of a crime that bothers me. There were already laws on the books against "identity theft" long before it happened: it's called fraud. So why does identity theft exist? Because banks and creditors and government agencies are constantly trying to reduce cost, they don't want to have to track down the person who defrauded them, that costs money. Instead, they put the burden of proof on you, and now it's your mess to clean up.
In the case of patents in particular, where the "thief" may have genuinely had the idea independently, it seems only a quirk of the law that they don't have the "authority or right" to make use of their idea just because someone else had it first.
Speaking of which, if you still don't understand, think for a second of democracy (an idea) being patented. People couldn't vote unless they paid licence fee, and if they were accused of voting without a licence then they would be deported without a trial on suspicion alone...
It's absurd, but it's more absurd that we've been letting it happen.
Apart from "holding on to it," what you say in the quote sentence is true for pretty much any property. In a strict sense, property is what you can defend. However, in order stop people using violence to defend their property, the government steps in and defines material property and vows to defend it for you through laws about theft, etc.
So property is an abstract concept enforced by the government.
Now, the government simply looks around and says, "what else is valuable for people that we can protect for them?" One is land ownership. You can't physically be on the border of your land all the time with a gun, so the government has laws about trespassing and poaching, etc., and enforces them for you.
Money is another abstract concept the government defends. It makes things easier for everyone to have a common currency, instead of trading chickens and cows, so even though $1 doesn't have a "material" meaning, it represents value and therefore people have agreed to respect it. The government proposes a country-wide currency to replace instability of ad-hoc currencies.
Another is copyright. The government agrees that creative people deserve "ownership" over their work, so they can profit from it, and this bargain is struck in order to encourage development of culture. It's a concept of intellectual property that is simply a contract between the people and the government, and the government vows to defend it.
Another example is patents. The government wants to encourage research and development, and one way it sees to do so is to help inventors profit from their ideas by vowing to defend their rights to it for a certain amount of time.
Before you get all upset (if you're not already), I agree very, vere strongly with the position that there are clearly problems with patents--specifically that they encourage many things we find distasteful as society, and the minefield effect is terribly detrimental, especially in certain areas like computer programming. There's no question that patents are a problem today, with the pace of technological development being what it is, and it's clogging up the legal system like nothing else. These are things that need to be solved. If the solution is to abolish patents I'm not even necessarily against that, though I think I agree with Judge Posner that they make sense for certain industries.
However, the claim that patents and copyright and any intellectual property is not consistent with the idea of material property is, imho, completely false. All of these concepts share the same root, that the government vows to defend your ownership over something. Just because some property is material and other property is "intellectual" does not make the latter "abstract" and therefore invalid, because the whole concept of property is abstract, it is nothing but an agreement.
This is the role of government, really, and I'd say one of its only legitimate roles, apart from infrastructure building, is to establish agreements on what we consider property, and enforce them. Now, whether this is done well is a subject of debate, but conceptually it is self-consistent.
If you don't agree with this, feel free to grab your gun, squat somewhere with everything you own, build a wall, and try to keep everyone from taking your stuff, but otherwise you have to acknowledge that the whole concept of property itself is as intangible the idea of intellectual property.
That doesn't excuse certain aspects of intellectual property from being ill-defined or badly designed, but the concept is not invalid. The extension from material property is a logical one.
Even in the case of land ownership, one could argue that what you own is much closer to a "license to use the land surface" since you can have surface rights without having the rights to mine or drill for oil on that land.
So your idea that property comes about because government says "what else is valuable for people that we can protect for them?" I think is incorrect. Property rights aren't some God-given right, we as citizens agree to handing out the rights to pieces of the commons to individuals because there is some net gain to everyone from this. All of those "rights" you describe are therefore subject to an evaluation of whether they serve society's purpose, and I think it's pretty clear that's a discussion that is very relevant to patents and copyrights.
[1] The stock certificate doesn't count; that's a representation of the property, not the property itself.
Its like trying to argue that money are not property, just representation of property.
Same thing with contracts: a contract is a relationship. The signed piece of paper is not the contract, but proof that a contract exists.
It's just a case of Procrustean bedding to act like all property (or rights bundles isomorphic thereto) must be physical.
Except the ones that do. You're right; most don't by default, but if you DO have valid paper certificate, it is a bearer instrument. Who owns it, owns it.
The preferred example would be futures, and oddly enough, something I also think is a scam.
Somebody who owns their own company can be thought of as equivalently having 100% of its stock.
Don't see what's "a scam" about it, but I'd love to hear your thorough analysis on the matter.
(Patent|Copyright|IP) infringement is an old issue, yes, and perhaps in the established context of one business copying and selling the work of another, it's a near neighbor to theft. But this world of free, crowd-sourced torrents . . . this is a new thing. The laws and dictionaries haven't caught up. We are having the conversations now that will BECOME laws and will UPDATE dictionaries.
Whether you think infringement of this sort is bad or okay, it is a very fair point to say that it is not the same as stealing. It isn't. It is a fundamentally different act, and how bad it is is something we should discuss independently. It would be unfair to import the negative rhetorical weight of the word theft -- an act that can directly impoverish or even imperil someone -- with what we're talking about. And likewise, if we decide infringement isn't so bad, it would be unfair to carry those emotions over to how we feel about physical theft.
I wish we had a catchy term for it. Freeling or "copying" or something. I don't know. I'm not sure exactly how in favor it of I am, either. But I do think it makes a lot of sense to use a separate term to discuss a genuinely new issue, so we can do so in neutral emotional territory and evaluate it on its own merits.
That is a very insightful comment, perhaps obvious in this particular case, but people often argue semantics over dictionary definitions, which is often unrelated to the true issue at hand.
shrug
probably because it was ruled thus by the supreme court. so, i guess there's that...
http://scholar.google.com/scholar_case?case=3901205964610715...
m3mnoch.
Because we're looking at the legal definitions of theft (for which stealing is a synonym) in various jurisdictions as opposed to the Merriam-Webster definition.
In my current jurisdiction the Theft Act 1968 Section 1(1) defines theft/stealing thus:
"A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and “thief” and “steal” shall be construed accordingly."
http://www.legislation.gov.uk/ukpga/1968/60/section/1
In legal matters it's preferably to be precise so you can be more certain what the exact ramifications are.
In any case the man-in-the-street, I warrant, would remark that stealing someone's property meant you had taken it away. For example, you steal my car. No one without an axe to grind is going to say that I still have access to and full unrestricted use of a car if you've stolen it.
I've read caselaw where the key element as to whether theft had occurred was whether the goods were carried off. If you attempt to steal something but don't actually end up denying the owner of their goods (eg you drop it before leaving the premises) then you've not stolen anything and the charges are lessened [if not negated].
Reading California state law, http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen..., it's clear that US states apply a similar test of whether goods are "taken" (stolen, taken and carried off) in order to describe an action as theft.
The thing need not be directly physical. You can steal money from someone and spend it without ever seeing a paper dollar.
Your definition would have me stealing a wall of a public building when I drop trou to urinate on it. That's one way to make use of it.
We have different words with different meanings for a reason. That's why we object to adding "unauthorized copying" to the definition of stealing.
"Nothing of value was lost", only perhaps "potential value". If it couldn't be copied, it could potentially be worth $0 to the copier/market. That's what makes copying distinct from stealing and interesting from a moral point of view.
I think a far better word for these discussions is "trespass" as in "he trespassed on my patent/copyright/trademark". I think this has the advantage of being closer to literally true in a legal sense, more in line with what our moral intuition ought to be about for copyright, and giving the right idea about how the law regards the acts (copyright and trespass can be crimes if done in certain ways, but are usually just torts).
I'm not a lawyer, so I would probably mess up the explanation, but fortunately I saved the link to it, so you can read it straight from the lawyer who explained it right here on HN: http://news.ycombinator.com/item?id=3696526
People are entitled to their personal definitions, and the fact that the legal definition is different is immaterial. When a reckless driver crashes their car into a kid, the kid's mum calls the driver a "murderer", and we don't consider them "wrong" (because the guy's crime is actually called "vehicular manslaughter".)
Now, it's fair to argue that using these defintions of "theft" is prejudicial, and that it's also fair to argue that people should refrain from that usage to minimise ambiguity, but it's not fair to argue that they should stop using a word because it doesn't agree with some "authoritative" definition (except in legal contexts, of course.)
I think you're looking at it backwards. The fact that this conversation occurs so often makes it clear that there is quite a lot of people who are aware "theft" is an incorrect term for it.
The way I see it happen usually is that these people point out that infringement, unlike theft, doesn't take away some physical property and isn't a simple zero-sum act (as in, if I steal 10 dollars from you, you have 10 dollars less). The next thing that usually happens is that the answer is something along the lines of "but it's still wrong" and/or "you're just splitting hairs".
That's why I brought JackC's explanation into play: he explains the real difference between theft and infringement, without sliding into legalese, and he also explains why it's so important.
People are entitled to their personal definitions, and the fact that the legal definition is different is immaterial. When a reckless driver crashes their car into a kid, the kid's mum calls the driver a "murderer", and we don't consider them "wrong" (because the guy's crime is actually called "vehicular manslaughter".)
I strongly disagree with this. The reason why people protest that infringement is not the same as theft is precisely because they feel that the legal definition matters.
The people who point out difference between theft and infringement don't do so because their argument is "Infringement is not theft, so it's okay." (Or at least I don't know anyone dumb enough to try that.) They do it because they know that infringement is at the very least legally wrong and they want to get the emotional coloring of the word "theft" out of the picture, so that people can finally settle down to discuss whether the laws governing infringement need to be changed or not.
Incidentally, I believe that a lot of people would consider "the kid's mum" from your example wrong, but that doesn't mean they claim that the reckless driver is not guilty or that he should be dealt with leniently.
Now, it's fair to argue that using these defintions of "theft" is prejudicial, and that it's also fair to argue that people should refrain from that usage to minimise ambiguity, but it's not fair to argue that they should stop using a word because it doesn't agree with some "authoritative" definition (except in legal contexts, of course.)
It's not about minimizing ambiguity. It's about stopping people from misrepresenting one thing as another, so that the correct thing can be discussed. What I think is not "fair" is telling those people "Well, my definition of 'theft' encompasses 'infringement' and I don't care, because I shouldn't be held to some 'authoritative' definition."
Person X entered my building without authority or right to use the restroom. He stole my restroom!
Person X insulted me. He thus "stole" my reputation.
In Sweden, the state has sole right to sell alcohol, thus any Person X that is selling alcohol is thus "stealing" from the state.
1 : to take *exclusive* possession of
Surely we should be allowed to take whichever definition best matches the intended meaning. The fact that there are other definitions that do not suit our purposes should have no bearing on the "correctness" of our language.
An example. If someone takes issue with me saying that a soldier was "pinned down", I might defend my use of the idiom by saying that they were unable to move because of enemy fire. The question, "Why do you pick that particular definition, when the term can also mean 'fixed in place with literal pins'?" seems a little silly.
From the US constitution, section 8:
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;
Note how it doesn't say anything about "intellectual property" or "theft" or "moral rights", or even third parties. I'm not in favor of abolition of copyright, patents and trademarks, but this is exactly the kind of muddled, framing[1] language that the blog post linked to is trying to correct.
The laws have been pushed so far in the direction of "protecting" intellectual "property", and language has become so twisted by those who have the most to gain from the results that you can argue it's how things stand today, but it obviously wasn't the original intent, and it doesn't necessarily make it right. It's also not necessarily good economic policy (you want to see startups killed off in this country? Just continue to let copyright, patent and trademark law continue to expand).
[1] - http://en.wikipedia.org/wiki/Framing_%28social_sciences%29
The motivation behind patents was to get inventors to reveal their inventions. Prior to patent law, inventors just kept everything a secret. This meant that inventions would get lost and had to be rediscovered later on. So in exchange for revealing their "secret sauce" to the state, inventors get a temporary monopoly on their invention.
As for the idea that you could never, ever tell whether somebody invented the same thing independently from another, I don't understand why you'd think so. In the extreme case, if it's the 16th century and two people living on different continents invent the same thing days apart, you can be pretty darn sure that neither copied the other. Information didn't travel that fast. But this doesn't matter in patent law, because its purpose it not to prevent the "stealing" of inventions. Its purpose is to encourage disclosure by awarding a temporary monopoly on an invention.
This is in contrast to copyright, where it is a valid defense to say you created your work independently.
Regardless of the historical motivation for patents, the reason for the inclusion of patents and copyrights into the US constitution and law was clearly to encourage new invention, not just to get inventors to disclose what they would have invented anyway. The US constitution was crafted in the middle of the industrial revolution, as we moved away from master craftsmen to big industry where it's hard to keep secrets.
As for the idea that you could never, ever tell whether somebody invented the same thing independently from another
Of course you might occasionally be able to prove convincingly that you came to an invention independently, but in general you can't. What's your point? Why do you think the US adopted a first to invent rule rather than a first to file rule? If the goal is just to encourage disclosure, then we'd have the latter right? First one to tell us how it's done wins! But that's not the rule we have, and the reason is that primary purpose of patents is to encourage new invention.
http://en.wikipedia.org/wiki/First_to_file_and_first_to_inve...
At no time does the patented idea become property, and therefore, by definition, it cannot be stolen; every patent holder owes his/her/their patent to society, not the other way around.
Who said we didn't think of using "scrolls" or "apple" as our company name independently ?
Patents are quite explicitly not there to stop people "stealing a technology". You can already do this by keeping your invention secret (which many jurisdictions grant some form of protection).
The purpose of patents is to encourage inventors to publicly disclose their inventions so that others can benefit from and build on this knowledge, accelerating the rate of technological advance. In return the public grants the inventor a limited period of monopoly on the invention.
The patent system currently in place in the western world is not achieving the goals that the society has set it, mostly because patents are granted for "inventions" whose public disclosure has no value (because they're obvious or over broad). What we get instead are huge companies with massive patent arsenals stopping new companies from getting into business, patent trolls extorting money, and independent inventors whose patents are worthless since they cannot bear the cost of defending them against large companies.
Regardless, American 'intellectual property' law (which is the set being applied here) exists explicitly for the public good (that is, it's written into the constitution as such). The authors thereof debated the upsides and downsides of the whole idea quite a lot too, so we have a fair bit of insight into their thought process.
>The conventional wisdom holds that American patents have always been grants of special monopoly privileges lacking any justification in natural rights philosophy, a belief based in oft-repeated citations to Thomas Jefferson's writings on patents. Using 'privilege' as a fulcrum in its analysis, this Article reveals that the history of early American patent law has been widely misunderstood and misused. In canvassing primary historical sources, including political and legal treatises, Founders' writings, congressional reports, and long-forgotten court decisions, it explains how patent rights were defined and enforced under the social contract doctrine and labor theory of property of natural rights philosophy. In the antebellum years, patents were civil rights securing important property rights -- what natural-rights-influenced politicians and jurists called 'privileges.'
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.Bullshit. Mojang isn't using Uniloc's tech. They're writing their own tech using a bloody obvious idea.
Uniloc's surprising honesty:
>And it fits our straightforward development model. Look at many ideas. Pick an outstanding one. Patent it. Commercialize it. Reap the rewards.
Uniloc's vast knowledge of technology:
>After all, Bell Labs did develop some fairly transformative technology like radio astronomy, the transistor, the laser and the UNIX programming language.
They create a market for patents which benefits everyone who invents something and patents it. If your startup has a useful patent then (even if you never use the patent) your company is made more valuable because trolls like this exist. Investors will consider how much that patent is worth on the market when valuing your company.
And how would you implement a system that prohibits patent troll behavior? Only the original inventor gets to own the patent? Only people using the technology are allowed to own the patent? Define "using." What if I invent something truly novel and would rather license it to established players instead of bringing it to market myself?
It shouldn't be true, but it is, because patent examiners have done a very poor job screening software patents historically.
This is the problem I've always had with patents, but I've never been able to articulate it before.
Huh? Patent infringment consists of using some technique without the permission of the owner.
There's intent all over that.
Are you suggesting that folks are using techniques without the intent to use said techniques? Or that they aren't intending to use them without the permission of the owner? (Yes, you can argue that they didn't know that they needed permission but that doesn't change the fact that they intended to use them without permission.)
For the sake of argument, imagine I can prove that I came up with an idea for something on my own. I'm completely unaware that it has previously been discovered and patented. I did not even think it was an idea that could be patented. Did I intend to infringe that patent?
If you make sufficient disclosure part of the patent system then this is the only way to do things really. If you don't require it then patents are worthless for the [general populous of the] state.
Intentionally infringing a patent is punished much more harshly, and it's impossible to keep up with the millions of patents that are published, so being intentionally unaware is actually a decent legal defence.
And yes, this does mean that patents are generally pretty useless for software.
A patent is filed for technique X by company A,
Company B use technique X having created it independently,
The patent is issued to Company A,
Company B is now infringing upon Company A's patent.
Company B could not possibly have committed patent infringement intentionally, because the patent they infringed didn't even exist when they went about implementing their product.
I don't know about the US situation but in the UK Section 64 of the Patents Act (http://www.ipo.gov.uk/pro-types/pro-patent/p-law/p-manual/p-... and http://www.legislation.gov.uk/ukpga/1977/37/section/64) allows a person to continue activity which was started prior to the grant of a patent in secret or where sufficient preparations for that [infringing] activity were made prior to the application/grant in good faith. If the activity wasn't in secret then it forms part of the prior art and invalidates, or forces amendment of, the patent in question.
If there isn't an equivalent US clause I'd be surprised: 35 U.S.C. 273 "Defense to infringement based on earlier inventor." looks like a candidate.
edited to fix numbers
Basically, yes.
> Over 40k software patents are granted each year. If I spend 20 minutes on each (which is optimistic), it will take me a year and a half to read a year's worth if I do nothing but read 24x7. Obviously, expecting me to keep up on that and still do any development is absurdly unrealistic, and so it is not appropriate to call my failure to do so "negligent".
Do you think that "ignorance of the law" is a reasonable excuse? I ask because there are far more laws and regulations than there are current patents....
While it may be absurd for our society to punish you in that circumstance, our society will punish you in that circumstance. In other words, "it's absurd" isn't a legal defense.
Ignorance of patents, like ignorance of law, is no defense, no matter how impractical knowledge is.
It is also relevant to what shape the laws should have.
There are different punishments for patent infringement with and without intent, so by definition you can have patent infringement without intent.
Nope. There's just a more serious penalty when you continue after being informed.
when awarding damages ... take into account the following – (a) whether at the date of infringement the defendant or defender knew, or had reasonable grounds to know, that he was infringing the patent ...
(That's paragraph 62 (3)(a) from http://www.ipo.gov.uk/patentsact1977.pdf )
Seems quite clear cut.
Could you explain what you understand by "intent"? Do you think you can have intent to infringe a particular patent without knowing that the particular patent exists?
Did you intend to use a technique? Did you intend to use it without permission. Note that the latter doesn't require knowledge that permission was required.
As to treble damages after being informed, that's an extra hammer, sort of like "you had a chance to clean up your act".
> Do you think you can have intent to infringe a particular patent without knowing that the particular patent exists?
Yes.
It's sort of like violating the law. You can be guilty of doing something with intent to do that thing even if you don't know which law is involved.
That isn't the question I'm considering, which is where the apparent disagreement comes from. Someone can intend to use a technique, while not intending to infringe a patent. It is infringing the patent which brings legal problems.
You can be guilty of doing something with intent to do that thing even if you don't know which law is involved.
In that case, yes, you'd have intent to do that thing, but no, you would not have intent to break the law.
The extra penalty is being applied to intent to break the law, to do that you need to know about the law. From the perspective of the person breaking the law, they think they are innocent. They don't intend to be guilty. (Even if they actually are guilty.)
I understand where you're trying to go, but, as with the criminal law situation, you're trying to reward ignorance.
He made a room full of young entrepreneurs with unique ideas feel very nervous. He feeds on innovation.
http://www.thisamericanlife.org/radio-archives/episode/441/w...
Their explanation of the venue choice was that the other federal courts were choked with drug-related cases and going to East Texas was a way to get a speedier trial.
The America Invents Act changed this. Now the plaintiff cannot join unrelated defendants in one lawsuit, and so defendants have a much better chance of getting the case moved out of EDT. In face, since that provision of AIA went into effect, more patent cases have been filed in Delaware than EDT.
EDT actually is not particularly plaintiff friendly when it comes to results. There are several other districts where plaintiffs have a higher winning percentage than EDT. Last time I saw stats, a couple years ago, EDT wasn't even in the top 5.
The big attraction of EDT was/is:
1. The judges there are very familiar with patent law and patent litigation. Patent litigation is among the most complicated litigation, and whether you are a plaintiff or a defendant you want a judge who has experience with it.
2. There isn't a lot of Federal crime in EDT. Criminal cases have priority over civil cases, and in districts with a lot of Federal crime civil cases can suffer great delays. Try to litigate a patent case in a district where the courts are clogged with criminal cases (hello, war on drugs!) and you could be in litigation for a decade or more. Neither plaintiff nor defendant generally wants that.
This is the biggest flaw with the current patent system. The reality is if an invention falls into this category, it should not be patentable. Raising the barrier of "obviousness" to a level requiring an invention be transformative to the point that, within the term of the patent, the likelihood that anyone else independently invents the same thing is sufficiently small would go a long way to addressing these problems.
The problem then is that there is little to no incentive for the applicant to share the idea. If it's something no one will come up with, then you can keep it secret and benefit from an indefinitely extended monopoly.
The quid pro quo of patents is early information about new inventions in exchange for limited time monopoly. Here you're encouraging inventors/companies to prefer industrial secrets.
If inventions meet your requirements but are kept secret then the public domain will be worse off as no one gets the benefit of being able to privately use/research the invention unless it can be replicated. With a patent the full details are disclosed.
Obviousness is very difficult to assess because some things that took many years developing are so ingenious that they seem obvious. The applicant always has the argument - if it were so obvious how come, in such a well worked field, with such demand for this invention, how come it wasn't already developed? The answer of course is that it wasn't "obvious" [to the skilled practitioner with knowledge of the prior art in the relevant domain].
But anyway ... if it's not useful it doesn't matter that it's patented and if it is then you've got full disclosure. So I'm not sure the percentage is really important. Perhaps the fees should increase at a greater rate to encourage early release of patented inventions that aren't high worth.
Personally I'd limit the term to about 8 years for all patents and dispense with US business method and pure software patents.
I'm having trouble thinking of something that:
1) You can benefit more from as an industrial secret than as a patented invention.
2) Society is harmed by the lack of public disclosure.
Of course I cannot give any specific examples. They are currently secrets, or they are secrets that died with the company or died with the obsolescence of the product.
(Sorry about the "cheap shot"... I realize that the problems are with the laws, not the patent examiners. But humor is the only way I can approach this subject without tears.)
For example, I have my company in Germany, where it's (almost) impossible to get a patent for software patents. So if a greedy patent troll in Texas decides that one of my apps infringes their patents, can they even sue since my company is obviously in Germany? Or can they only stop me from selling in the US? (which would be a huge drawback, of course).
How is such a situation handled?
There was recently a case where Håkan Lans argued he should not have to pay Acer after having lost a patent suit in Washington, because he is a Swedish citizen and the american verdict was according to him unjust. He first lost, but appealed and won in the appellate court (Hovrätten) [1]. The court argued that since there was no contract between the parties governing jurisdiction the foreign court decision could not be used in a Swedish court as proof of debt. Therefore Acer would have to sue Håkan Lans in Sweden, and have a Swedish court rule on the merits of the case, if they wanted the aid of Swedish authorities in collecting damages.
[1] http://www.nyteknik.se/nyheter/it_telekom/datorer/article250...
Patents should protect against idea theft.
I would like Patents to be like math. If you show all your working out you are mostly fine. This way, if you are taken to court you have documentation which shows each step of development that got you from A to B. This would include missteps etc.
This would allow two people who have the same idea to not be infringing a patent.
It would still be for the judge to interpret. It may be the case that person B started work on their product after the release of person A's work. There work may be dubious.
At least this would allow someone to create a similar product via their own initiative without being in breach of patent they were unaware of.
Patent infringement isn't a crime. Most (although not all) crimes do require some level of intent. But patent infringement is like any number of other civil causes of action in not requiring intent.
It gets my goat to hear people like this talk about others "stealing" technology they "invented". What these parasites invent is paperwork, the purpose of which is legalized extortion from people who really do invent things. They brazenly label themselves The Innovators to win the sympathy of a public (especially legislators and juries) who don't know enough to tell that they are frauds.
It's not an idiom, and identity tests exist in other languages. You may know them as "==" (Java), "is" (Python), "eq?" (Scheme) or "object.ReferenceEquals" (C#).
Now the syntax is ugly and this does not excuse the fucked up non-overridable equality, but aside from that `===` works pretty well in Javascript.
As opposed to PHP, which famously did manage to even fail implementing identity correctly[0].
It also has nothing to do with the comment you replied to, which uses `== !` (to operators, an equality to a negated operand)
[0] http://developers.slashdot.org/comments.pl?sid=204433&ci...
js> var a = []
js> a[42] = 3
3
js> a.length
43
It bothers me significantly more that
[1] == 1
Notice the space between the last = and the !
"Internet expert" == (! expert)