Almost No Patented Discoveries Get Used
wired.com
wired.com
http://www.patentproperties.com/
He is also the guy who created walker digital.
http://en.wikipedia.org/wiki/Walker_Digital (look under "patent lawsuits and disputes")
Despite his claims, he is in fact, a troll - he buys broad patents completely unrelated to his company solely for the purpose of suing deep-pocket companies for infringement.
He has 719 patents, and cares heavily about monetizing them, having sued almost everyone under the sun.
He sued Facebook for friending, for example.
He realizes he is finally starting to lose the war, and writes pieces like this because he is afraid trolls like him are starting to finally get what they deserve.
(Jay certainly is a smart guy, and he is certainly an innovative entrepreneur. I take serious issue with his business models around patents, though)
</offtopic>
This same broken-ness applies to another system of legal monopolies too: copyrights. Are those used more to "promote the useful arts" in 2015, or are they used more by rightsholders to stamp out that which they don't like?
I wonder what our economic, artistic, and technological landscape would look like if we decided, as a society, that these legal monopolies are causing more harm than good, and that they should be severely curtailed, if not outright abolished? I wonder if it would really be as bad as the people who have a financial interest in these things say it would be?
[1]: http://memory.loc.gov/cgi-bin/ampage?collId=llsl&fileName=00...
(interestingly, the copyright laws use the same "useful arts" wording almost verbatim)
The problem with patents is that they seem to be awarded for many "inventions" that do not seem to really be novel. Patent inspectors have not kept up well with the rapid pace of innovation that software allows. Fix that problem, and I think a lot of general unhappiness with the system would go away.
Copyright? I'm not aware of any general problem with that. It's pretty simple, the original author has a period of protection for their work. What's wrong with that?
If you do a Google search for "problems with copyright" you'll find many articles on the topic, including http://gizmodo.com/5989166/everything-wrong-with-digital-cop... and http://epubs.utah.edu/index.php/ulr/article/viewFile/7/11 and https://web.law.duke.edu/cspd/publicdomainday .
To start, copyright terms are getting longer and longer, while "economists who have modeled the ideal copyright term have uniformly suggested that it should be far shorter than it is right now. Some have suggested that it should be as short as 15 years."
I didn't ask for qualifications because the implication is that "a period of protection" it simple. I focused mostly on that. The US Constitution says that copyright is for a limited time. Some people think that the current time is too short and want it to be "forever less one day". This is not allowed, so the current method is to keep extending copyrights, giving an effective infinite copyright period in the US.
A common view is that Disney wants to keep Mickey Mouse from entering the public domain. This is why the Sonny Bono Copyright Term Extension Act is sometimes pejoratively called the Mickey Mouse Protection Act.
So does "a period of protection" mean that the protection can be extended retrospectively? If so, is it okay for extensions for be applied indefinitely, to get an effectively infinite period of protection?
I agree with Karunamon in that even this 'simple' aspect is "causing more harm than good, and that they should be severely curtailed, if not outright abolished." (I'm for the 'severely curtailed' part.) Resolving that in the way that I think it should be is definitely not simple.
https://www.eff.org/pages/unintended-consequences-fifteen-ye...
First, it must be understood that the "official" original explanation of copyright was to prevent people not authorized by the author to sell the author stuff, ONLY that, it was NOT intended to prevent the general public from getting free stuff. (the actual explanation was that the first copyright laws were made to allow censorship, but I don't have enough information to explain that now).
Today what I see is lots of people on the "First world" frankly believe they are entitled to earn money from pure intellectual work and that poor people should stay uneducated/ignorant/cultureless if they can't pay.
I personally had lots and lots of pirated games, books, and media in general, because then there was no other choice, I was one of the first "gamers" in Brazil, I was also poor, and stuff was mostly not available here, even to get a pirated copy of Doom (the first one) was hard, very hard (my dad had to make some engineering work for Kia Motors, and asked as part of the payment a copy of Doom, after he learned that the factory manager had a copy).
I am very sure, that if I went with the route of obeying copyright laws, I would be a very, very different person today, probably I would be a cashier, and would contribute to society much less than now, and the same applies to almost all programmers from the third world.
Or you frankly believe a random indian/pakistani/brazillian/peruvian that is a WinAPI programming master had a legal copy of windows and all the tools when he was first learning as a kid?
20 years later - huge steam library, working in software and paying a lot of taxes, etc etc.
It's the epitome of selfishness to create something and not allow others to look at it and copy it when there is no loss to the creator. The expectation of profit from just having others listen to a song or use a decide whose blueprint you created is a problem of entitlement in our current culture.
And yet, doesn't this mean that you owe your skill to defeating copyright schemes, and that if they didn't exist for you to defeat, you wouldn't have the skill you have today? :)
I spent a long time pirating games, but seriously, 'no other choice' is nonsense. You could just 'not play the game'. I don't think that software piracy is the great evil that it's made out to be, but neither do I think it's harmless and that there's justice in people just taking entertainment because they don't have enough money at the moment. It's not like video games are a staple required to sustain life.
I guess what I'm saying is that I don't care that you pirated software, but I think it smells bad that you paint it as some sort of social justice issue or class war.
frankly believe they are entitled to earn money from pure intellectual work
Work is work and consumes effort and time, whether it's shifting bricks or squashing bugs.
The choices you are giving me are: pirate, or be ignorant and cultureless.
You thinking the second is a good choice, is frankly stupid, games are not just entertainment, they are part of popular culture, they showcase interesting technologies, and may even have actual uses (example: simulators that teach real skills).
And I was not talking only about games, but all sorts of media, or you think all the coding books that curious people (including teenagers) here have are legal?
Patents are not a black and white problem (either with or without).
What I think is the really core problem is that the length of patents must be inversely proportional to the innovation pace of the field they apply - which is the opposite of the current legislation.
Patents may be OK "in general", but it's not OK to have a 20 years exclusive in a field where such amount of time represents many generations of products, otherwise it simply is a legalized racket.
The Mickey Mouse Protection Act is a huge problem. In a nutshell, every time a large company's copyrights are about to expire, they pay Congress to extend them for another period of time.
Patents don't actually work that way. No engineer looks at a patent in order to make something. Have you ever read a patent? A few that cover useful technologies? They do not provide information useful for implementing anything useful, they only use strange language to cover a couple related ideas as generally as possible so they can apply to as many independent creations as possible, to maximize their offensive, defensive, and monetary value.
Copyright has been extended to last way way too long and the idea of it is often abused to threaten people who are actually abiding by the law with expensive and hugely inconvenient court cases. Throwing out copyright altogether would probably have strange effects and not be a good idea.
Throwing out the patent system would be quite fine. Patents are literally only used to stop things from being made, never to enable something to be made.
I don't think you're considering the bigger picture here.
For example: it costs billions of USD to create a normal prescription drug. That's an insanely serious investment. How likely do you think that investors will be willing to help fund drug research when a month after your new wonder drug hits shelves there are generics sitting right along side it? Generics which cost considerably less because they don't have to recoup all that R&D. Same thing applies to any other product with a sizable R&D budget.
Now, I'm definitely not saying the current patent system is without problems, but saying that patents never enable development is a tad short-sighted in my opinion.
On the other hand, drug companies mostly develop lifestyle drugs these days. Drugs that cure people are less subjective and not profitable enough. I'd bet most of the real medical research still comes from academics sponsored by government, *-for-the-cure fundraising organizations, etc.
Not just their work, but derivative works, and they get control over it essentially indefinitely. It used to be that works went into the public domain after 15 years. Thus anyone can print copies of A Christmas Carol, but not anything from the 20th century. Most books from the 20th century have disappeared entirely. E.g. see this graphic: http://www.theatlantic.com/technology/archive/2012/03/the-mi...
There is really no economic advantage of copyright after 5-10 years, but a huge cost on society.
I agree that Copyright lasts much too long, but there is a significant economic advantage to the Copyright holder for more than 5-10 years. Disney does not keep lobbying for longer copyright because they are stupid. Plenty of 10 year old media is still purchased.
ISTR seeing that for the vast majority of works, most of the income ever earned for the copyright holder is earned within the first 5-7 years after creation.
Of course, some copyright holders have some works that are valuable longer, and use the proceeds from them to produce enough that they'll hit more of those jackpots (or can outright buy others.) But its not clear that supporting the ability to create those jackpots supports economic gains for society as a whole (rather than providing a gain for a minority of copyright holders at the expense of everyone else) or that it serves the constitutional purpose of copyright (which isn't to maximize rewards to creators, but to provide some reward to creators in order to "promote the Progress of Science and useful Arts".
Again, I agree that Copyright lasts much too long. I was responding to the statement "no economic advantage of copyright after 5-10 years" (which it seems I misunderstood anyway, Houshalter replied that they were referring to no net economic benefit to society).
However, if you look at most fields (ex: engine design) they benifit from the same thing. In the end the real issue is new fields spend their first ~50 years in patent hell where the most obvious things are easily patented and you can't default to a 20 year old 'safe' design without major compromize.
What happens all too often when drug patents expire is that no one manufactures the drug at all, because the people with the capacity to do so get better returns manufacturing things that are still under patent (even if that's a newer but less effective treatment for the same condition, or even if it leaves no effective treatment for a condition available.)
1. Your patent on drug A expires
2. You have an active patent monopoly on drug B which is functionally similar
3. You use your giant network of marketing staff to convince medical professionals to use B instead of A
4. The market for A collapses due to lack of demand.
The generics manufacturers cannot afford to spend nearly as much bribing doctors, so you don't get an equivalent demand push for generics unless one of the competing large pharma groups decide that the generic is profitable enough to counter the targeted campaign with a targeted campaign of their own. But why would they, when they can milk their own patent monopoly cashcows a bit more using the same marketing spend.
Yes, the original manufacturer often spends money to develop follow on versions that can qualify for new patents, but this isn't always an effective strategy. When it is, it's usually because the follow on version has substantial benefits for patients (e.g., monthly infusions at the doctor's office instead of weekly). If those benefits aren't there, insurers can and will decline to cover the new form of the drug and insist on the generic.
[1] http://www.nytimes.com/2013/03/19/business/use-of-generics-p...
(My foot is fine, I got a cold, yay hospitals)
Doctor's inboxes are filled with emails from drug company reps offering to take them out to play golf and fancy dinners and give them boxes of free samples of the drugs made by the companies they rep. Those companies don't sell the low cost generics!
(source: a relative of mine is a drug company rep!)
I'd want to hire people who are knowledgeable about pharmaceuticals and are able to accurately and intelligently answer questions about research studies and side effects. But an effective person would probably hire hot chicks and chatty dudes and give them big expense accounts.
If they abandon it, and no generic is produced, patients are forced to the patented alternatives.
The drug companies don't want to compete with their own products if they can avoid doing so.
The different outcomes are largely explained thus:
Drugs with a very large demand and especially ones which are OTC and around which consumer brands can be developed (where brand identity allows a premium to be charged, substituting in some degree for the monopoly rents patents allow) are likely to continue to be manufactured after patents expire. Prescription drugs with a limited demand even if they are the best (or only) effective treatment for a particular condition are less likely to continue to be produced once patent protection expires..
I'd think it would be better to tie the temporary exclusivity to who put it thru the approval process directly (and relax the restrictions a bit, but that's a separate issue...).
So despite the fact that the generic is legally available within the NHS, Pfizer seems willing to chase doctors who prescribe it for pain relief.
http://boingboing.net/2014/12/24/pfizer-threatens-pharmacist...
(edited to make sense, thanks to jameshart)
To prescribe is to define a desirable course of action. To proscribe is to define an undesirable course of action. Doctors prescribe medicines; laws proscribe crimes.
http://en.wikipedia.org/wiki/Off-label_use
I don't know to what extent manufacturers can limit prescribing their branded drugs for off-label use. I feel like if I wrote a Rx for any drug for any indication, it would get filled without hassle... although if it was really outlandish, the Pharmacist would probably give me a call.
Source: I'm a doctor.
Pfizer here are not trying to limit prescribing their branded drugs for off-label use, they are trying to restrict the available uses of products that are legally supplied to the NHS by other companies.
Sort of. There's still a lot of rent-seeking. Consider this (egregiously) common pattern:
1. Release new wonder drug.
2. Rake in money until patent expires.
3. Make minor tweak to wonder drug, just enough that you can get a new patent.
4. Don't worry that this new version isn't as effective as the original. Just send armies of drug reps to badger doctors into prescribing it anyway. They'll go along with it; they don't have the time to read the medical literature and figure out for themselves that the old version with the expired patent is still a better drug.
5. GOTO 2
http://arstechnica.com/tech-policy/2012/11/pfizer-caught-gam...
3. Discover that the same drug works for a different disease and patent the new application of the old drug.
4. Since the drug is still patented even after the original patent has expired, anyone making the drug still has to pay up even if they are selling it for the original, out of patent, use.
If you patent for disease A, then the patent expires, even if you patent for disease B, it doesn't stop anyone from making a generic version of your drug to treat disease A. Doctors will also prescribe that generic for disease B (there is nothing to stop them).
The insurance companies get to spend less paying for treatment, and using the tax system gets around the public goods problem which prevents insurers from doing this voluntarily.
We should at least publicly-fund antibiotics research, given that the current system is almost completely failing on that front.
http://www.nih.gov/about/budget.htm
Funding report by disease/research area:
http://report.nih.gov/categorical_spending.aspx
Note: Over a billion dollars a year is spent on stem cell research.
That makes no sense. If you put a limit on potential returns by instituting a fixed "X-prize", why would companies continue to invest in R&D? Wouldn't they just pick the cheapest to develop drugs in order to maximize their return?
I think this is the most important part of your comment. How well patents work for drugs is a secondary question.
I would put it this way: the PTO has no good way of distinguishing mere novelty from nonobviousness. In a mature field, the two probably correlate pretty well: everything obvious will have been thought of. But in a young field, they don't. Specifically, when a new technology opens up new applications, those applications are often novel enough to be considered patentable, even when they are obvious to anyone who has the need that the application addresses.
When new technologies are extremely general, like personal computers and the Internet, this problem is at its worst: there are very large numbers of such new applications. And so we get lots of patent applications of the form "do X on a computer" or "do X over the Internet", and because those ideas are novel, as far as the PTO can tell, it assumes they are nonobvious.
The European patent court, as I understand, tries to address this problem by requiring that a patented invention demonstrate a "novel technical effect". I think this is a good idea: it attempts to distinguish inventions that are truly new technology from those that are simply novel applications of technology, the implication being that the latter are more likely to be obvious, even though novel. In fact, I think this is a much better approach than the one the US Supreme Court took in the recent Alice decision [0], in which they rejected a patent for being about an "abstract idea". Both approaches require the PTO to make a judgment, but the question of whether an invention is an "abstract idea" seems to me much harder to pin down (what's a non-abstract idea?) than that of whether it contributes to technology or merely uses technology. (Though I wouldn't say the latter question is always going to be trivial.)
Another thing I would like to see is heavier and more consistent reliance on what are called the "Graham factors" [1], particularly those that show objective evidence of nonobviousness: commercial success; long-felt but unsolved needs; and failure of others to solve the same problem. I would go so far as to say that the presumption, particularly in a young field, should be that an invention, notwithstanding its novelty, should be considered to be obvious unless the applicant can demonstrate some objective evidence that it isn't.
[0] http://en.wikipedia.org/wiki/Alice_Corp._v._CLS_Bank_Interna... [1] http://en.wikipedia.org/wiki/Inventive_step_and_non-obviousn...
That's because "useful arts" comes from Art 1 s. 8. cl.8 of the Constitution, which authorizes both patent and copyright laws:
> [Congress shall have the power] 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.
Same for copyright. We currently have 95 years after the creators death. Would 10 years fill the same role, and if not, how much worse would it be. 1% worse? 5%? 10%?
In one of Eben Moglens talk (professor in legal history), he spoke how the fundamental system of government changed in the 20th century. The administrative Procedure Act of 1946 made everything subject to the rule of cost/benefit analysis, asking whether proposed government actions are more helpful than they are harmful and making a systematic and careful evaluation of the relationship between benefits and cost before deciding to intervene in the economy. The change was profound, and just about the only thing that didn’t get changed to conform with it was patent law and copyright.
Despite its title, Bilski is only talked about in the last 1/5 of the talk. The 4/5 before that, he goes through a historical perspective of the patent system.
Imagine if you wanted to put an addition on your house and needed to file a multi-million dollar lawsuit that could stretch over a decade before you could determine whether it would cross your neighbor's property line.
[1] There's still some gray area around fair use, but the contrast with patents is night and day.
You can violate a copyrighted song by writing a song with a similar melody or motif. In the U.S., the accuser needs to prove that you previously heard the original song, but not that you were aware of the similarity or purposefully copied the musical idea.
Yes, indeed there are corner cases; and ugly outcomes. At the limit anyone can sue anyone for anything. But by broad strokes, both in theory and in practise the situation around copyright is far more clear, and appears to produce less collateral damage.
Notice how I'm not making any spurious claims about "useful arts" or whatever.
If something has been perverted from it's stated goal, nothing is gained from perverting the goal statement. In fact, I'd argue that much would be lost, as you'd get people saying (correctly) "the system works as intended".
Losing a good statement of purpose is always a great loss. It's much harder to make people aware of an error of omission than an error of inconsistency. When we find a good statement of purpose, we should cherish it, defend it, and fight until our systems embody it!
> it will be aimed at smaller and mid-sized businesses that need a low-cost way to mitigate their infringement risk. It will also offer universities and other smaller patent owners a way to finally earn some revenue from their inventions
Maybe I'm cynical, but "mitigate their infringement risk" sounds like a euphemism for "pay Walker a bunch of money or get taken to court".
Yes, you are cynical, but, perhaps unfortunately, you are probably correct.
While the need to create some sort of modded-out system to allow interested parties a way to really examine what's in the db almost surely exists, I, too, wonder of what value it would ultimately be.
It's often difficult enough in business to crack the money-making side of it, and adding the large administrative and financial burdens of dealing with onerous patent restrictions sure doesn't help.
It sounds like he thinks one problem with the current system is that, even if you do use a patent as it's intended (license it properly), you can still get taken to court by someone else for infringing on their similar patent. Using patents is like walking across a minefield. Small businesses just do not (and should not) play in the patent game because of legal risk.
If his company provides insurance that using their patents protect you against liability against violating other patents, it sounds like a great idea. Like the "anti-patent troll".
Like how some app developers are being sued for using some feature of Apple's SDK. [1] Imagine if Apple provided free insurance against all such lawsuits.
[1] http://www.macstories.net/news/lodsys-starts-filing-lawsuit-...
While in law school, in attempt to defray tuition costs, I would order Livestrong style silicone bracelets and sell them at Daytona Beach bike week. After tinkering I began working with the manufacturer to mold the silicone bracelets with RFID chips and file a patent.
As a law student, I found the patent filing process to bring real world practice to my classroom theory, plus I learned a lot about RFID technology in the process (mostly researching prior art, such as, RFID shopping carts; RFID one time use hospital bands; ect...). However, as a law student I had no practical (financial) way of bringing my idea to market.
Nevertheless, I contacted Disney's director of park operations to discuss the potential of my RFID silicone bands acting as park tickets, monetary accounts and the general efficiency RFID bands could have of park operation efficiency (tracking lines, ride times, open seats, ect...). As one might expect I was blown off, given a nice generic response that there is no interest...but sure enough 7-8 years later the parks have incorporated RFID technology through the use of...silicone bands.
I think such a story highlights the various positions one could take on our patent existing system. Some might say I was a patent troll, filing a patent where I knew I could never financially bring a product to market, others would argue that situation is why patents exist where the inventor needs to protect an idea where often times but for being the inventor/patent filer a giant corporation might come along and simply take an idea without any benefit to the inventor...finally some may say I should not have received a patent in the first place as RFID silicone bands are not non-obvious in the first place.
Though I never sued, my own experience brings a certain bias to the table, and I would simply ask in countries that do not have a similar intellectual system to the US, is there an example of an inventor actually bringing an invention to market where they were not simply beat out by an existing corporation?
This is the idea of researching prior art...and could be extended to the numerous other RFID technologies that are patented, I mentioned a few that were part of my patent application: 1. RFID shopping cart (presumably inventor didn't invent shopping carts or RFID) and 2. 1 time use RFID hospital bands (again inventor invented neither hospital bands or RFID). Ultimately, combining two technologies (using the term loosely) in non-obvious (sometimes it is obvious) results in a new patentable invention.
I realize you were using your example as just that, but while a PBJ will not be patentable, one could copyright the recipe. Coke specifically avoided doing this in a counter-intuitive measure to protect the closely guarded secret formula (which would otherwise be publicly disclosed if a copyright was filed).
This is why Coke's recipe is a trade secret instead. I've recently been down the patent research path myself and to me it is still not clear what creates a patentable non-obvious combination of technologies, and what is simply not patentable. In many cases it seems based on the patent reviewer's subjectivity.
Yes; however, as the link you provide explains if more than just a simple listing of ingredients (i.e. description, pictures, ect...) the same can be awarded copyright. A copyright on a cook book is still the industry standard, because a single filing/fee covers an entire book of recipes.
>I've recently been down the patent research path myself and to me it is still not clear what creates a patentable non-obvious combination of technologies, and what is simply not patentable. In many cases it seems based on the patent reviewer's subjectivity.
100%, much like trademark and copyright much is left to the subjectivity of the reviewer. I will say this about the patent office (compared to trademarks), the reviewers are generally very well educated in their respective fields (engineering, medicine, ect...). The only other way to gain more insight into obviousness standard is reading case law/precedent.
Edison, according to legend, patented the light bulb. (He actually patented an improved filament, and the screw-in base.) Once the thing exists, it is easy to trace the process back to the origin, just as it is easy to trace from the leaf of a tree back to the trunk at ground level.
Edison did not patent the thousands of experimental filament failures that he tested before reaching a viable consumer product. His task was to climb the tree and find one particular leaf.
The PB & J sandwich seems simple. All you had to do was add two ingredients together!
But you also had to not add any of the other possible sandwich ingredients. No lettuce. No tomato. No mayonnaise. No mustard. No ketchup. No roast beef. No jalapeno slices. No pickles. No cole slaw. You also had to pick the right variety of bread. Pumpernickel doesn't work out quite as well. Sliced bagel favors different sorts of sandwiches. Cornbread doesn't work at all.
You can't just permute every possible combination of sandwich-able foods and expect the good combinations to be obvious. But once identified, they are obvious in retrospect, thanks to a quirk of human psychology. It wouldn't have been obvious that phonograph needles could be made from peanuts, or that light bulb filaments could be made from bamboo until after inventors had done it for the first time. So don't confuse simplicity with obviousness.
The problem with patenting a particular sandwich, or any other type of food recipe, is enforceability. Once the recipe is known, you have no way of knowing whether unlicensed cooks are making your dish.
The fact that Disney is using RFID bracelets, on the other hand, is immediately discoverable and verifiable by anyone who visits their parks. Furthermore, they have pockets deep enough to afford even unreasonable license terms. The problem was not even technical. It has always been human acceptance. Stick an RFID on a hospital-style plastic band, and no one wants to wear it. Embed it in an exclusive park souvenir, and people will even pay extra for the privilege of having one.
The bracelet is how you get the guest to carry the same RFID tag for their entire visit without losing it, breaking it, or shorting it out. Previously, Disney has used paper tickets, hand stamps, biometrics readers, and mobile applications to manage guests, and they still had problems with loopholes, fraud, and innocent accidents.
If someone were able to patent a PB&J sandwich, somewhere like a Disney theme park might be one of the few places on the planet where its licensing could be enforced profitably. They cannot hide what they do, as anyone present could read a menu and watch a sampling of trays exiting the serving line, then figure out the numbers on a napkin.
This is exactly what the patent system was made for; so the little guy could have an incentive to invent without being crushed by a copycat with more clout. So he doesn't have to be the only person to pitch it. He only has to be the first to offer patent licensing terms.
I think this is completely false despite it being "common wisdom". I've challenged people who say this to provide some sort of evidence that patent systems aid innovation and seen none that was anywhere near convincing so far.
Nobody so far has so much as ventured an answer except one person who pointed to a study that measured innovation solely by the increased use of patent systems in countries where the regime of legal monopolies strengthened over time. I see that as evidence of the insidious nature of patent systems if anything, but to each his own I guess. Got anything?
In practice, there is no legal construct that cannot be employed to the advantage of the party that can hire better lawyers. In the battle of ironclad patent versus fully funded legal war chest, the latter wins.
The implication of my post, in context, was that the patent system does not accomplish that idealistic purpose. And indeed, the article itself says that most actual innovation avoids patents. I interpret this as the network of innovators recognizing the flaws in the system and routing around them.
You've been challenging people who haven't looked enough :-) For one, Kenneth Sokoloff (mentioned in TFA) authored some of the highest cited studies that show the benefits of patent systems.
You are right that measuring the effect of patents on innovation in terms of patents is somewhat circular, but economists have long realized this. There are now tons of historical and empirical studies showing increased patenting being correlated with improved metrics of innovation as measured by various proxies such as R&D expenditure, diversity of industries doing research, VC financing for startups, employee growth, and even economic well-being. Of course, there are costs of the patent system as well, and various studies that attempt to quantify those.
Instead of pointing to dozens of individual studies, it'd be easier to point you to this meta-study that references a number of those other articles:
"RECENT RESEARCH ON THE ECONOMICS OF PATENTS", Bronwyn H. Hall and Dietmar Harhoff (Google for PDF)
Maybe it seems bogus because it's a human, social invention, rather than a technical one.
In any case he got the patent, so what does he have to be bitter about? He even went to law school so it would probably cost him less to sue than the average joe. After going through all the trouble to get it, why doesn't he sue anyway? I bet the fear of having his patent invalidated if Disney decides not to settle plays a role.
The idea of putting an RFID chip in a silicone band per se strikes me as obvious, in the sense that someone who needed to track people in a confined space would be likely to think of it themselves, once they were aware of the existence of the component technologies.
A patent is a deal that the people make with an inventor: in exchange for the publication of your invention, we give you a time-limited monopoly on it. In order for this to be a good deal for us, the intellectual contribution of your idea to the state of the art needs to be significant. If someone else is likely to have the same idea, then granting you a patent is a very bad deal: you get a license to sue, and the people get nothing of any value in exchange. (Aside: note that this is a fundamentally economic judgment, not a legal one. I think some training in economics should be required for patent examiners.)
Now, that said, I haven't looked at the patent. It may be that there is more to it than this; that there were specific technical difficulties that had to be overcome. Just for example, let's suppose that in early prototypes, the chip had a tendency to work its way to the surface of the silicone and fall out. The solution to that problem might well be nonobvious and deserving of a patent. But you haven't mentioned anything like that.
The key problem with the patent system is the problem of disclosure. We always say that the patent system is a bargain between the inventor and the public. The public gets new knowledge and the inventor gets a period of exclusivity for the using/making etc that knowledge.
Where the system falls down is in the "disclosure to the public" part of that bargain. Patent language has become so abstracted that most of the time it fails to inform someone of skill in the art how to actually make the promised item. This has some corollary effects:
- The patent system becomes less useful as a source for knowledge (as argued by the article) - Novelty and obviousness (and later, infringement) all become less certain. This results in poor quality patents coming out of the patent office and high costs to litigate for infringement.
In the end, though, the result is that the patent system is (for most of the computer arts where I spend my time) not very useful as a store of knowledge. If there is a choice, I will almost always seek out a paper (or source code) rather than an accompanying patent to get an understanding of new technology.
This is due to the incentives associated with each type of publication. The source code is designed to convey certain algorithms to the computer in an unambiguous way. Papers are designed to get read and cited - and they don't do that unless they communicate what is new and meaningful to an audience of peers.
In contrast, patents are designed to cover a range of possible solution spaces, with as much room for reinterpretation later as is possible without being insoluably ambiguous.
This problem is hard to undo because the push to abstract the descriptions in patents was done with the best of intentions. - Congress wanted to allow new things to be described without constricting the form of the language used. - Prosecuting lawyers (and their clients) wanted to get the maximum coverage for their new ideas. - Courts want to reward inventors and disallow trivial workarounds (nail->screw) not addressing the core inventive concept.
All of these points are valid ones - but in combination, the result is that patents have become too vague, particularly in anything computer-related.
As an aside, the mechanical arts (and some others, such as many bio/chem arts) don't suffer from this problem to nearly the same extent, and so you usually don't see the same problems.
On the other hand patents do allow companies to publish their work without fear of losing their trade secret, and to invest in research in the first place. The papers might not be published at all if not for patents. For example Google, Facebook, Microsoft all fund and publish machine learning research now.
Of course this is probably only true for a small fraction of all patents, and probably doesn't benefit small players very much.
Actually, the problem is more fundamental than that. For thing like medicines, the standard naming scheme for chemicals means you can reliably find patents covering a particular compound. Rice's theorem [1] means that that this cannot be done for software.
https://gigaom.com/2011/04/13/419-jay-walker-goes-nuclear-pr...
http://arstechnica.com/tech-policy/2011/04/priceline-founder...
Who better to talk about a system being broken than someone who makes a living exploiting it?
The "brokenness" that he sees in the patent system is not that it's too easy to profit from patenting obvious things, but rather that it's too hard.
[1] http://www.law360.com/articles/573649/google-wins-invalidati...
And he states that only small/mid-size companies worry about infringement so his company is targeting them. In my direct experience at a 50,000 person company, large companies worry too. Our Internet proxy banned no sites except patent databases.
Additionally, filing for patents is the other good way to reduce risk.
I wonder, does professional liability insurance cover patent infringement?
Secondly, it really doesn't matter if "almost no" patented innovations get used, just as (to make an analogy) it doesn't matter if "almost no founders get VC funding" (!). There are over twenty million founders in the United States alone who would take $100k into their 'startup business' from a VC tomorrow. So what. "Almost no founders ever get VC funding" is a useless observation (even if it's true), and I make this analogy because here on HN we have a lot of experience with the cases where they do, and could rightfully see the sentence as a useless observation.
There is less experience with using the patent system here, but what matters, of course, is patented innovations that do or did require the patent system. And anyone who has any experience whatsoever with this subject knows about what kinds of cases this applies to.
I am not going to elaborate but I found the article basically totally worthless and clearly written by someone who has no information on the workings of the system. Clearly there is a systemic cost to having a patent system at all. But perhaps the reason the author had to write that no patented discoveries get used (which is a truism, since there is no such things as a patented discovery) is that the same is not true for innovations and inventions.
1- They should update to the current world. That means using computer files like 3d CAD drawings or STLs. Today most patent's drawing are way worse than drawings 100 years ago(on purpose of course, as they don't want people to really understand the patent).
Patents today try to obfuscate as much as they can so they give the less they can to society, but try to claim everything under the sun, so they receive the most from society.
They should also let other types of documentation be presented, like audio, or video.
Obfuscation should be taken care of, using standard formats for documentation, using standard terms. They try to patent already patented tech just changing the terms, so it looks different for the examiner.
2-Business and software patents should be banned. But this will take a fight, some court has declared business patents void.
The software patent situation is surreal. Someone comes to your house and tells you you have to pay them for patents, but they can't show you!! If you don't pay they will sue you with a football team of layers.
In the only possible good case for the system, it prevents two rivals from sueing each other because they very likely infringe on each other already.
The patent troll problem is of course absolutely terrible. Anybody can sue anybody, they don't have to be right - they might not win, but there's costs and time involved. And we also have "practiced" court systems in a certain area that make money basically exclusively off of this.
I think it's safe to say that most software most companies produce violates a large number of existing patents - whether they know it or not - because dilligence around rejecting incoming patents for novelty or prior art is so bad, and patent language is so terribly obfuscated.
Once, I knew some folks at a three-letter computer company who basically patented a scroll bar. In the late 90s.
It may provide somewhat of a chilling effect to people starting new businesses, but it doesn't seem to be that rampant.
But do patents provide a useful library for sharing technological ideas after X years? Not in most cases.
If almost no patented inventions were used in the 1800s then it's hard to use that as a metric for determining if the patent system has gotten worse.
Is this really assuming that every patented idea is a good one? Doesn't everyone assume the opposite, that most patented ideas are crap? I'm not surprised to learn that 95% of crappy ideas never turn into new products.
> More than likely, you won’t be able to put it to good use unless you have the multi-million-dollar resources required to launch a startup
How is this worse than starting a business without a patent? I don't think patent law was also supposed to be a guarantee you'd get a small business loan.
The argument in the article is that if you don't have the resources to commercially exploit a patent yourself, then no one else will pay you for your invention, because a) the frictional costs in licensing from you are too high, especially when b) they can just steal the idea, since you are too poor to defend yourself in court.
That creates an inefficient market.
Personally, I think the effect of b) is smaller than implied, since an inventor could always sell the patent to a troll who can afford to defend it (though discounted by some large risk premium)... nevertheless I've heard of it happening.
The effect of a) is very real. Just consider any software product given away for free... even a requirement to count how many copies are distributed for the purposes of computing a royalty may be inimical to the business model.
When we were starting out I did a lot of reading on patents, the system of patents litigation etc...and decided that the best thing for us would be to ignore the whole patent system and just push forward our technology into the marketplace hoping that we would be moving so quickly that trade secrets would keep us covered for the foreseeable future.
The thinking was: A patent only gives us the ability to argue our case for infringement in court. As a startup there is no possible way that we would be able to afford a lengthy IP court battle without serious VC money or revenue, at which point we should have been able to get the patent stuff figured out easily. Besides, a patent just tells the world how to do what you are doing which makes it easy to rip-off or change slightly as the ability to cover every single use case/implementation in a patent is basically impossible.
I still believe this, but we had so much pressure from investors (that usually didn't invest) that I spent a good 80+ hours writing/drawing our patent and getting the provisional done. Seemed like a good compromise.
For an actual example of this see the hair removal device that used a rolling spring to rip out hair. Competitors realised they could do the same by using a set of wedged discs.
http://en.wikipedia.org/wiki/Epilator. (See the "rotating disc" section).
This is essentially why many NPEs exist. You can approach them, and if they think your IP is being infringed by somebody worth suing, they will litigate it on "contingency". That is, they will charge you almost nothing but will keep the lion's share of any settlement or damages.
As bad as NPEs are when they target startups, they are often the only recourse when faced with a big, well-funded infringer. The current widespread negative rhetoric against "patent trolls" does well in distracting startups from this fact.
One huge use for patents is a like a nuclear arsenal between competitors. Competitor A has 500 patents, competitor B has 500 patent, both covering the product range they both make. Neither is going to sue based on it because it would be a huge mess. The Smartphone wars is something of a rarity. Usually industry leaders don't go at each other.
Google found this out because of their late development of patents related to Android. Not having the arsenal made Google weak. It's why Google acquired Motorola. Google paid billions for patents that never got used.
IP portfolios also are an asset you can borrow against.
Commercial litigation is always expensive. Doesn't matter if it is breach of contract or patent infringement. The little guy is at a disadvantage.
It's likely they hold thousands of patents but have nothing to return fire against.
Thus, a very GOOD public company can be attacked by someone who has simply bought IP, and does not have recourse against them.
The best IP a non-practicing entity gets is from legit companies who sold off their IP or lost it in bankruptcy. When that happens, it's just monetizing the R&D the company invested in.
The big issue is dogcrap patents that granted to garage inventors with way too big a scope or after there was already a ton of prior art. The trolls take those patents and then extort the shit out of everyone they can.
Most patents (including mine!) don't get used simply because there's no one practically using those inventions. The comment at https://news.ycombinator.com/item?id=8838681 hits the nail on the head. It's not usually because they are too expensive or risky to license or that the inventions themselves are not technically interesting. It's just that the market or industry ends up using technology (which itself is often patented) that does not infringe the vast majority of patents.
As an example, I once saw a patent on sale that was a precursor to DHTs and could potentially read on systems like Amazon Dynamo. But the way they did DHTs was completely different from Dynamo, and in fact, different from Chord, CAN, Pastry, Kademlia or any of the other DHTs in academia and practice (all of which the patent pre-dated). Hence, as interesting as it was, it had no commercial value.
I've seen this pattern repeat in many other fields of technology. The fact that only < 1% of patents are ever asserted simply reinforces this notion. This is not surprising, since in most engineering there are many ways to implement the same idea, and each of these ways can be patented. But typically an industry converges on a few ways of doing things and the other approaches lay unused.
Does this mean the system is broken? Consider academia. Think of all the hundreds of papers that get published in computer-related fields alone. Then think of how many of those actually make it into production. Does that mean academia is broken?
The patent system may be flawed, but this is not why. This article essentially is an ad for the author's new venture, simply using the "broken patent system" meme to get some free publicity.
As an aside, the "create efficient market for patents" language TFA uses at the end is oddly similar to the rhetoric Intellectual Ventures started off with. Initially IV was adamant that they would only license and not litigate, but more experienced people in the licensing business knew that was laughable. After all, a patent is nothing but a right to sue.
http://www.iam-magazine.com/blog/detail.aspx?g=af22f2c6-e794...
With companies, they are generally happy selling the old stuff with lipstick since it's easier, rather than innovate.
I would claim that for businesses with less than astronomical R&D budgets trademarks and brands are far more valuable than patents, while patents act mostly as an outside markets legal leverage (i.e they provide a big stick against competitors but the only effect it has on customers is a slightly higher price).
Isn't that how the patent system is supposed to work?
(Is a patent that has expired still counted as a "patented discovery"? This changes the meaning quite a bit)
Why is it "bad" if patents are the reason things are held up, but "not bad" if it's a common trade secret or proprietary application? Didn't Google hold back the entire industry by not making their secret sauce for large scale management of IT infrastructure broadly available?
IMO, the patent problem is a scoping problem -- we allow patents that aren't appropriate. The concept of patents makes it possible to make large capital investments to actually invent things. We need that imo.
The Google infrastructure would be a good example. Amazon and Facebook have built similar facilities.
In the pharmaceutical case, generic manufacturers are often able to start producing a medicine on the day the patent expires. In the Google/trade secret case, the world may forever lose valuable tools and techniques that are kept proprietary once, but cease being useful to Google.
Whether it "slows progress" has got to be an empirical question with results that vary from field to field. The "with patents" case in software forces not only rediscovery but reinvention and engineering around patents (which exists in the pharma case as well).
Now, a software patent system that involved filing a copy of the source code with the patent? That would be a great way of preserving tools in the public record. But that's not how it works at the moment.
Discoveries aren't patented - inventions are.