Hacker News Reader

Comment by tptacek | Hacker News Reader

You read this article and get the impression that Myhrvold hires people to sit around saying things like "laptop batteries that get 40 hours per charge!", which he writes down and files patents for.

But from what I understand, from being involved in several patent filings, you can't just patent an idea. You have to patent an enablement of an idea. A patent that can't be used by someone skilled in the applicable arts to implement the patented concept isn't supposed to be defensible.

Commenters on this post repeatedly argue that engineers do all the real, hard work, and that the ideas themselves are trivial. That's probably true. But all that hard work is also patentable; if I'm dumb enough to file for "40 hour batteries", and you file for the chemical process that makes 40-hour batteries work without melting through the floor, you win, right?

View on HN

You and I both win provided neither of us tries to actually make the batteries. Instead, we wait for someone who does and sue them. If we try to make them, we discover that while you patented something about 40 hours and I patented something about chemistry, neither of us patented something about manufacturing them and a third troll sues us.

The point of the article is that the only losers are the ones who try to do anything tangible that requires a collection of patented ideas to function.

This implies that you can, sitting at a table with a pint, come up with the key patentable ideas for the 40 hour batteries. The odds rather favor the people building batteries in earnest, don't they?

No, because this is not a case of A vs. B. It's A vs. all the Bs, Cs, Ds, &c patenting stuff.

So sure, a company building a battery has a good chance of coming up with an enforceable patent. But given thousands of people trying to patent battery-ish ideas and many that aren't immediately related to batteries, the odds favour one of them coming up with something that receives a patent and is vaguely related to whatever the battery manufacturer is doing.

Remember, a patent is a sword but not a shield. Just because you patent an idea and make something with that idea, you cannot assume that nobody else has a patent that applies to your "patented" idea. They may have patented some other part of the process for manufacturing your "invention" or they may have a patent for an underlying component of your process even though you have patented a novel way to apply their patented idea.

Please let go of the idea that patenting something is a license to actually do something tangible with your idea. It is not: It is actually a license to interfere with other people doing something with your idea.

In the modern patent business, the "odds" favor the first party to encounter a particular problem in their field of art. If you're lucky enough to encounter a problem first, you can patent the first obvious solution(s) that come to mind, and effectively own the field later.

This is why nonobviousness was supposed to be a criterion for granting patents, and why we're all worse off now that the USPTO has effectively abandoned it.

If the "non-obvious" battery implementation is better, you can build and patent it no matter what me and raganwald come up with at the pub.

But if it relies on your patent as prior art, I still have to cough up the baksheesh.

Software is different. For most commercial programs, it's obvious in advance whether they can be implemented or not. Okay, there are lots of academic computer scientists devising new, unobvious algorithms, but I think a relatively low proportion of businesses need new algorithms. Whereas all new medicines, to take the other extreme, require new science.

You probably win because your patent has broad claims covering all 40 hour batteries. It does not matter that I know how to make them and you don't.

As I understand it --- as in, what I've managed to retain from multi-hour conversations with IP lawyers trying to sell me services --- that's not actually how it works.

(a) if your broad claims and best-known-mode are insufficient to instruct someone as to how to build a battery, your patent won't matter, and

(b) just because you patent a 40-hour-battery concept doesn't mean you've patented the concept of a 40-hour battery. Every aspect of battery design that you didn't document and claim in your patent is itself patentable. You can patent technology that you yourself cannot build because of other overlapping patents.

But from what I understand, from being involved in several patent filings, you can't just patent an idea.

Unfortunately, while that's how it was supposed to work, that's not how it does work.

Amazon's "one-click" patent is an obvious case in point: they own the idea of executing an Internet shopping transaction with a single mouse click. No matter how divergent your implementation is from theirs (and to be fair to Amazon, Barnes & Nobles' implementation wasn't very divergent) they effectively own the core idea and, by extension, any work you put into it.

It's utterly impossible to argue that this state of affairs encourages progress in the useful arts and sciences, or otherwise benefits society in any way.

Amazon didn't just patent an idea. They patented an extremely effective embodiment of that idea. One-click wasn't a pint-glass-and-bar-napkin patent.

I have an extremely effective embodiment of brushing my teeth, but you don't see me running off to the patent office to keep other people from brushing my teeth that way.

Of course, if I could brush my teeth on the Internet, I can see how that might be different.

It sounds like you're trying to argue that one-click was as obvious as brushing your teeth. Amazon was far from the first company to take payments over the net --- I remember buying an RSA shirt by keying the ABA and account numbers off a check. But Amazon appears to have been the first company to actually publish an embodiment of one-click shopping. Why's that?

Honestly, I don't know. It could be that smaller online retailers were afraid of the inevitable rise in returns, chargebacks, and other customer-service hassles that would accompany any measures that encourage impulse buying. I know I would be.

While the idea of one-click ordering is obvious, it takes some nontrivial business infrastructure to make it safe and robust. You need to be able to consolidate separate orders placed within a brief timeframe, you need to allow your customers to view and edit their existing orders and fix accidental ones without human intervention... and probably most important, you need to be large and well-known enough to be trusted by your customers to retain the financial and personal information needed to execute one-click orders.

The idea was indeed a ballsy one, and it took some real work on Amazon's part to make it happen successfully. But it was still an obvious idea, it wasn't the least bit creative, and it didn't deserve patent protection.

Hard work on my part shouldn't, by itself, entitle me to stop you from doing the same.

Reply on news.ycombinator.com