The Patent, Used as a Sword
nytimes.com
nytimes.com
It's not wrong, but it is also not true, since it is a tautology and so devoid of meaning. Patents ARE intellectual property, so the statement is a nonsensical "patents are vital to protect themselves". A circular argument.
I suspect the author is failing to distinguish between ideas and "intellectual property", and is trying to say "Patents are vitally important to protecting ideas". An idea is not intellectual property though. It is born naked and free and has no inherent attributes of property, such as limitations on its use. It is patents that attempt to convert ideas into property, and the onus should be on the patent advocate to demonstrate benefits over unadorned ideas.
It bugs me that so many "software patents are bad" articles go like this:
1. Example of why software patents are bad.
2. Unsupported assertion that patents are essential.
3. Unsupported assertion that pharmaceuticals will not be produced in the absence of patents.
4. Half-baked conclusion that something must change, but it's a scary thing to do because it might kill innovation.
Why not do it this way?
1. Start with the assumption that monopolies are bad for innovation and innovation happens best in a free-wheeling environment.
2. Example of why software patents are bad.
3. Critical examination of whether patents might have any benefit in other areas, such as pharmaceuticals.
4. Unless shown to be generally good in step 3, conclusion that patents are generally bad, with exceptions (possibly none) as identified in step 3.
This is the problem. In all other countries (except Great Britain, AFAIK) the loser pays all costs (including the public cost of the trial and the opposing party's legal fees).
The loser-pays system has three effects:
1. No frivolous lawsuits. Cost of losing is high.
2. The defending party will defend vigorously if it believes itself to be in the right.
3. It is relatively cheap to get legal insurance (almost everybody in Germany has it)
Overall this reduces lawsuits in general, stops or reduces the power of threatening legal action, and it stops or reduces the practice of throwing the equivalent of legal sh*t at the wall to see what sticks.
Edit: Spelling
First: The loser pays costs as determined by the court , usually on a preset schedule. It's not like the winner gets to send the loser an invoice for infinity bajillions and they just have to pay up.
Second: You can apply for having the government pay if you loose. You have to file a petition explaining how (a) there's a benefit to society in having the case heard and (b) how you're not financially fit to bear the costs yourself.
Honestly, if you study the system a little bit, at least in the US, the problem isn't too much litigation, it's too little litigation. E.g. people complain about all the medical malpractice suits, but a Harvard Medical School study a few years ago suggested that far more people with meritorious claims failed to file suit than the number of people with unmeritorious claims who did file suit. There are tons of meritorious environmental law suits that don't get filed because polluted communities either don't realize they can sue or don't want to take on a big corporation.
"Loser pays" really favors big companies and the status quo, and in the absence of a big pro-active government to vindicate peoples' rights really results in those big companies trampling on those rights.
http://arstechnica.com/tech-policy/2012/08/bill-would-force-...
It's missing a critical component, however: it doesn't include a bond requirement on the part of the suing company. Therefore it only helps so much as patent trolls typically sue from a shell company with no assets.
Imagine if, when a patent is overturned as part of a patent infringement case, the defendant could claim all costs and damages they had suffered due to the faulty patent from the patent office? How fast would the system change?
Seriously though, that would never happen and we all know why. The question is: what can be done about it?
Honestly, what can we/I/you do?
Think about it -- suddenly you will have swarms of lawyers and executives at pharmaceutical companies paying visits to research labs, and you'll have people from large software companies forwarding ideas posted on open source developer mailing lists to their legal departments. It won't be safe to suggest ideas openly anymore. It won't be safe to talk about "what if" or "have you considered" or "someone should really." We are going to see a flood of really bad patents based on other people's ideas -- and that's exactly what our lawmakers have provided to their friends in large businesses.
Things are about to get a lot worse. But you know, maybe that's what it's going to take -- maybe we have to suffer economically, suffer culturally, before we as a society realize we are building ourselves an intellectual prison for which there is no justification.
Yes, I know that patents are a temporary thing, only lasting 18 years or so; but really, do you think people such as the guy cited in this article are going to say to themselves, "oh, you know, maybe I'll just return to coming up with innovative stuff in the voice recognition field in 18 years, after Nuance can't come after me anymore" -- do you really think that will happen? No, of course not. We're going to see a lot of brilliant people forced to abandon brilliant projects and ideas, and we'll never know what might have been, what could have been done.
I don't think anyone is fighting this in a particularly constructive way -- the whole "abolish all patents" camp is going to get about as much of a serious audience as the "abolish the Fed" and "abolish the labor union" camps -- and perhaps that is exactly what our large-scale adversaries want. We need to be more incremental, more nuanced; that's what they've done, and that's why they are getting everything they want. You think sneaking first to file was something that happened over a chain of emails somewhere? No -- if anything, I bet there is a protracted, multi-decade fight among a lot of very persistent corporate attorneys and executives that has lead to this "win."
In any case, I really hope people in our industry can stop the useless arguments of "end all patents!" for long enough to realize they should be rallying together to fight this simple yet very destructive change that is right over the horizon. You sure as hell won't hear/read my thoughts on future technologies once this first to file thing goes into effect; and I am sure that savvy legal counsels everywhere will be telling their star engineers and employees to remain similarly silent. This is not going to be fun.
Actually, it's failing to stand for a principle that leads to this constant slide downward.
Sure, fight this particular battle, but as you're doing so, don't forget about the war.
Maybe it's this lightspeed cultural advancement that makes it all seem so drawn out, but it sure feels like nothing is or has changed for the long term better.
As I was reading through the legalese for the MPLA, I realized that the typical practices of the legal profession have about as much to do with reality as Dungeons and Dragons. They are playing games with words, the only difference is that they're dealing not with game pieces but with your very life.
The idea is to keep the language reasonably stable that we can still confidently interpret legalese from 1812, and that in 2412 the legal body of 2012 can still be of some use without having historians fight over how we might have meant things.
This is particularly true in letter-of-law + case law jurisdictions - in spirit-of-law jurisdictions, interpretation is always required, while in non-case law jurisdictions, rulings don't have as much impact so you don't have to care about what was ruled 200 years ago.
You made me think about something, however. Maybe one of our solutions to this problem should be a very well organized, completely open source, "open registry." One of the other changes -- a concession, really -- that will come into place along with the new patent system will be a much-expanded definition of prior art. Now, as things currently stand it will become very easy to shoot down searches of discussion list postings and the sort as being relevant, but what if there was a true open, public registry of ideas/inventions? And moreover, what if we as a collective community encouraged ideas to go in there through social incentive; i.e., if I add a new invention to the registry that is actually awesome, people vote it up and I gain cred in the industry -- and if it's already in existence or something, others can comment/explain I'm not the genius I thought I was. You could also have some sort of a system whereby you could see inventions that are "forks" of others' ideas -- basically, a software version of the citations on a patent application.
Once we built this, and started using it, we could get the patent office (and patent offices around the world) to incorporate it into their workflow when evaluating applications. This could really help us in cutting down bogus filings, while making their job easier (music to every government employee's ears).
I know people have been making moves in this area, but perhaps it's time we get really serious about it. We seem to be better at coding things, than at lobbying, so maybe this is the way to go...
And, in general, it's not the apocalypse you might expect because prior art can still invalidate a patent.
The USA is basically on its own with first-to-invent. Everyone else is on first-to-file. And generally speaking, it works pretty well. There are absolutely anomalies, but there are mechanisms to deal with them. The payoff is a simply abolishing a massively expensive and difficult field of litigation.
It's a lot like how the Torrens land title system dramatically increased the security of land title, while also driving out whole classes of litigation and fraud. It changed real estate, land ownership and development for the better.
(IANAL, TINLA)
(IANAL, TINLA).
That's not how first to file works. It just changes is what happens if two or more otherwise eligible people apply for the same patent. What I mean by "otherwise eligible" is that they would be entitled to the patent if there was not a conflict with another inventor claiming the same invention.
When there is a conflict (which does not happen for the vast majority of application), then first to file changes the resolution so that the winner is the first inventor to file, rather than the inventor with the earliest constructive invention date. (The constructive date is not necessarily the date you came up with the idea. If you come up with the idea, start working on reducing it to practice, but then stop for a while and then start again, your constructive invention date jumps from the date you came up with the idea to the date you resumed working on it. Each time you stop and start, your date jumps forward).
If you come up with some idea and have no intention of patenting it, you want to talk about it publicly under first to file just as much as you do under first to invent, in order to get it out there as prior art.
Alas, if I understand corectly, it is still going to be expensive, even just to submit prior art against a bogus patent.
Crowdfunded re-exams?
More accurately, patents are vitally important to enforcing intellectual monopoly.
Terms such as "protection" and "property" are so heavily biased in favour of patents that they nearly block any useful discussion. As long as mainstream journals use those terms, the only way forward will be nearly complete lock-down. Now, "monopoly" is also biased. But at least it is technically correct.
Patents are supposed to foster innovation by granting monopolies. I can accept the argument that while monopolies are mean, they're a lesser evil compared to the technical innovation they enable. But replace "monopoly" by "property", and soon we're saying that patents are unilaterally good (and not just a net good). Which is obviously false given the huge legal costs they incur.
But even if patents are a net good, we rarely ask ourselves: can't we do even better? Isn't there any other form of government intervention that would be even more efficient? Could the money that currently goes to patent lawyers be better spent? My current answer is "most probably". Of the top of my head, we could fund another Manhattan project, set up more competitions and prizes like the DARPA challenge for autonomous cars, or allocate more research grants.
I used to work on a DARPA project, and had some high school field trips funded by the Naval Surface Warfare Lab. The military is a great source of technology, but it's woefully inefficient and it's got a distinct military bent. The DoD can piss away in waste and graft in one month what patent litigation costs in the whole country for a whole year.
"In the smartphone industry alone, according to a Stanford University analysis, as much as $20 billion was spent on patent litigation and patent purchases in the last two years — an amount equal to eight Mars rover missions. Last year, for the first time, spending by Apple and Google on patent lawsuits and unusually big-dollar patent purchases exceeded spending on research and development of new products, according to public filings."
It's not like they're wasting billions of dollars on patent litigation instead of R&D. They're buying companies, including their engineers and their IP, instead of doing things in-house. Both companies are flush with cash-of course they're buying up all the technology companies they can find.
It shouldn't surprise us that some industries are more concerned with one piece than the other. It's quite pragmatic to argue that patents should vary by technology sector.
There is also the fact that for lots of things, software are being part of an ecosystem where people come to the same solutions naturally.
Think about the "swipe to unlock", when the only thing you have to interact is a touch screen, it's not like there is lots of different possibilities.
At that point patents become harmfull because it blocks other people from making progress and having competition in a given ecosystem.
Drugs just don't have the same collision of solutions problem.
And this gets even more ridiculous when all you have to do to work around this is swipe inside a circle instead of on a straight line.
Keep in mind that the cost way pay for these patents is a dramatically higher price for life-saving (or life-improving) treatments. Could we not cut out the middle-man and redirect a portion of those higher costs to fund research and clinical trials directly (i.e. in the form of taxes)?
Software patents are a problem, specifically my problem because I'm in that field.
The difference between certain software patents and chemical formulas is the level of investment required to develop the technology. If the level of investment is low, the free rider problem isn't nearly as relevant. If an invention is cheap, the cost can quickly be recouped just by being the first mover. This is especially true in the online space, where there are major network effects favoring the first mover.
Drug design is a completely different bag of cats. The initial investments are huge, in the hundreds of millions of dollars. There are no network effects and being the first mover brings almost no advantage. Drug manufacturers can't compete on quality, they can't compete on anything other than the chemical formula itself and branding (and branding is the result of a different IP regime).
E.g. one of Samsung's biggest problems in the recent patent dispute with Apple was that they were clearly blatantly copying Apple's designs.
It's incredible stupid that I can get sued for sitting down and working through a problem to a logical end just because someone, somewhere sat down and worked through the same logical steps. Physical inventions and chemical engineering make more sense but software patents...you're trying to patent a logical progression of ideas how does that make any sense at all?
Morality is relative and totally arbitrary (and also influenced by the regime). Let's leave it out of the discussion.
>taking someone's ideas and passing them off as your own.
Everybody knows that we stand on the shoulders of giants. Claiming ownership of most ideas flies in the face of historical fact. Patents try to reconcile this with prior art and tests of non-obviousness but these are often subjective and highly flawed.
And I am of two minds. The system sucks. It shouldn't be patentable. In fact, even if I get a patent, it won't be the determinant of success or failure; it's mostly there to make the company more attractive to investors.
On the other hand, is/ought problem. There's what I'd like the world to be. And there's what the world is.
(And yes: my lawyer is pushing me to come up with the broadest, vaguest description of my invention possible).
In terms of making a company attractive to investors, is a block of resources better spent in obtaining a patent or advancing product development? Is the answer different between a start-up and not a start-up?
I'm genuinely interested in the answer, as it strikes me that the answer is not clear cut.
While many people on here like to tout the idea that investors invest in teams, there are many more investors who don't trust people that much--they want to invest in something other than charisma. If all your company has is an idea on which you're feverishly working, it's all but worthless in the absence of patent protection.
It's based on work I did for my Honours project. I wrote a bunch of prototype code and a pretty detailed description of its design and operation.
But in actual fact the invention is a miniscule part of the work that has to be done to bring it to market.
If spending a few thousand dollars now can help me raise hundreds of thousands of dollars later, I view that as a smart gamble to take.
I've been touched by patents twice. The first time was as an employee of a start-up based on a patent by a PhD student. In that case I think the company got blinkered by need to "implement the patent" and got overtaken by others who were more flexible.
The other was commercialisation of WiFi. CSIRO owned the patent. Radiata the company did not own any patents (not sure if they licensed the CSIRO one). Within 3 years, Radiata got acquired by Cisco for AUD 560 million. I was later told by one of the founders that Cisco had decided to acquire whoever was first to market, and Radiata got lucky and beat Atheros by 2 weeks. Investing 2 weeks into taking out patents could have been very costly!
CSIRO eventually made about AUD 1 billion off their patent, but it took 20 years, involving a 10 year legal battle that cost them AUD 15 million per year.
Since then, my feelings have been that patents are fine if you are well established with deep pockets, but a potential liability otherwise. I'm always interested in data that challenges that view as I could well be wrong!
You don't argue with a man with numerous atomic weapons, even if some of them might be duds. You fold to his demands. So large companies seek to shut down or absorb threats to their empires, preventing any new superpowers from rising through acquisitions and cross-licensing.
This leads to an interesting and uneasy detente, roughly comparable to the posturing of countries during the cold war.
Between themselves, the superpowers have had to play a careful game of balance. They know that to actually sue would mean a series of counterattacks. Lobbing a single missile might mean that all silos will launch from the enemy camp. The cost of defending and waging multiple simultaneous lawsuits against multiple multi-billion lawsuits has meant that there is very much a state of Mutual Assured Destruction (MAD) present in the industry.
When Steve Jobs said that he was "willing to go thermonuclear on this" he wasn't being hyperbolic. Apple went from a Cold War to a hot war. Much like the real Cold War, Apple isn't directly attacking Google yet. They are having a war by proxy with Samsung and other Android device manufacturers first. But they are also snubbing Google in a variety of ways with iOS 6. Time will tell if Google and Apple will engage in a dazzling display that will embarrass my WarGames inspired copy of Defcon.
The only winning move is not to play at a society level, by reforming patents.
Further than the "previous art" rule, that should be a criteria in accepting new patents : is it revolutionary ? Yes ? Congrats, as a reward, you can benefit of exclusive exploitation.
Of course, all the problem is to distinguish both. I suppose one way would be this one : when you claim a patent, there is a six month freeze time when it's not made public. If after six month nobody has used or mentioned any similar idea (similar enough to make a patent violation claim), you can have the patent.
This would encourage lot of technical writing that would produce lot of ideas in order to avoid patent locking, and real revolutionary ideas would be recognized as they are, instead of looking suspicious as all current patented ideas are.
Of course, the specific details of the article don't have to be right to accomplish the goal. Awareness of a perverse system will lead bureaucrats and judges to be open minded to reform whether the facts in the article are right or not.
It's worth mentioning, though, that Mike Phillips worked for Nuance, the company that sued and destroyed his company, as CTO for years and years. He left to do university research and later started a new company. Then, Nuance sued his new company knowing they could force him to give up or come back by suffocating him with litigation costs. It wasn't a simple matter of shutting down an upstart competitor as it was portrayed.
" “When I get an application, I basically have two days to research and write a 10- to 20-page term paper on why I think it should be approved or rejected,” said Robert Budens, a 22-year patent examiner and president of the examiners’ labor union. “I’m not going to pretend like we get it right every time.” "
"... In an interview, Mr. Kappos said the lengthy back-and-forth between examiners and Apple was evidence that the system worked. ... “It’s called the patent office,” he said, noting that issuing patents is the agency’s job. In a statement, the agency said it had spent the last three years strengthening policies to improve patent quality. Besides, Mr. Kappos said, “we realize that only a handful of these patents will be really important.” "
- When you are small, nobody will come to get you because you are not interesting enough for troll of big compagnies (except maybe other direct competitor but it's unlikely)
- Then you become bigger and you will have to deal with licenses from other compagnies and trolls.
- At that point you become defensive, and start to patent things yourself.
- Then you are unwilling to fight against patents because it starts to be an asset for you. And you might even be tempted to go to the dark side and use them to attack other companies at this point.
The good news in all that is that when you are a small company in software, you should not worry too much about patent. I don't remember any startup failing because of that...
But don't worry, the patent trolls only want income, so they'll demand you license their patent at a price carefully calculated to be your revenue minus your costs.
"The disclosure session had yielded more than a dozen potential patents when an engineer, an Apple veteran, spoke up. “I would like to decline to participate,” ... The engineer explained that he didn’t believe companies should be allowed to own basic software concepts."
http://www.cafepress.com/cp/customize/product2.aspx?from=Cus...
And wear it every day?