Comment by tolmasky | Hacker News Reader

Comment by tolmasky | Hacker News Reader

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It's not realistic to expect patents to be granted more intelligently. We are by definition, in the hypothetical best case (all honest actors), talking about the absolute bleeding edge of technology, where you are going to need real experts to be able to discern what is "real innovation" and what isn't. I don't even consider myself capable of analyzing patents except for in an incredibly narrow slice of computer science where I've worked for 10 years, so I'm not sure where you expect to find these generalists who will one day be looking at AI algorithms and the next day be judging graphics code. The only alternative would be to literally have an expert from every subfield. Even if you had infinite funds to fill this magical patent office, why would such experts take this boring job (unless their goal is to work on physics on the side ;) )? As it stand today btw, most patent clerks being hired are engineers straight out of college, and I imagine they aren't exactly the top of their class. No one dreams of being a patent clerk.

This is all exacerbated by the fact that the patent agency is a government agency, where there really isn't anything incentivizing them to get better. And yet on the other side you have lawyers who are 100% incentivized to create the most convoluted patents to actively confuse (the already ill-equipped) patent clerks and juries.

I also agree with the statement "if we could just grant the right patents then this wouldn't be a problem". I just don't see any reasonable way to increase the fidelity of patent grants, nor a reasonable fallback system for when a bad patent DOES inevitably get granted (trial by jury for discerning innovation is probably the worst method).

1000 years ago you could be a mathematician, poet, and biologist. Today, you have to go to school for 5 years to get a PhD in an incredibly focused subfield. 100 years ago the patents you were dealing with were "machine that makes light". Now its methods of improving graphics performance when running on this super specific kind of computer architecture. It might have been reasonable for an outsider to make a judgement call before, but I seriously don't think it is anymore.

You make a very good point. The patent office is like a public email inbox sitting on the internet, to which anyone can submit source code to have it be compiled and run. The output of these programs is then made the law of the land and enforced by the power of our judicial system. What person in their right mind would want to be the person who has to verify all of the source code coming into this email box?

It's such an extremely absurd idea that I'm amazed at how many people accept it as being normal. Patents are the closest thing we have to literal buying of laws.

These are interesting comments.

But it's not my impression that the patents that have been causing a lot of trouble are largely of this extremely specialized kind. A lot of them seem to have to do with implementations or applications of networking -- like the one Newegg is currently defending against, which is claimed to cover SSL/TLS key negotiation. There was another a while back that purportedly covered podcasting. I don't think it takes years of study to understand what these things are.

> Even if you had infinite funds to fill this magical patent office

As an aside, I think that the funds should come from the patent applicants themselves, and should cover the level of examination required. If examination is insufficiently deep, then the depth should be increased and the fees increased to cover the cost for this.

IME, patent office fees are tiny compared to the amount that applicants generally spend on their patent attorneys, so there should be no hardship there.

With your suggestion only the largest companies would be able to apply for patents. For Apple, Google or MS a couple of million dollars means nothing for a patent. But it infeasible for a startup or smaller research groups.

This is already the case. While with low fees you can get a patent issued as a smaller institution, in practice only institutions with in-house legal teams can afford to defend them. Those include, unsurprisingly, patent trolls and megacorps. The cost of patent litigation is in the millions regardless which side you're on.

Instead, only the largest companies can defend patents, which is just as bad, or worse.

Patent application fees should reflect the real cost of processing the application. If improving patent quality requires an increased processing cost, then this should happen, since not doing so unreasonably increases future litigation costs for everyone. Subsidizing small companies' applications might then be reasonable if we want to promote startups and smaller research groups, but there's no reason to subsidize the largest companies' applications.

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