EFF Outlines Plan to Fix the Broken Patent System
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On the other hand, some of the suggestions simply beg the question. What is a "software patent" or a "patent troll?" Software is eating the world--mechanisms that would have in the 1990s been implemented in ASICs are implemented in microcontrollers. What people think of "software" they think of typical application code that mostly moves bits from point A to point B or react to user input. Software where each individual line of code is straightforward and requires little thought. An R&D project might spend millions of dollars to write a bunch of code that will be thrown away--and can still be considered successful if it yields useful algorithms. These are qualitatively different kinds of software, but it's devilishly difficult to draw the line.
Of course the easy solution is to eliminate software patents. I'm not convinced that's a good thing long-term. I look at the tech industry, and see one where product companies rather than hard R&D companies make all the money. The folks at SRI who invented Siri get a small license fee, while Apple makes billions by wrapping it with a candy shell. It's an industry where there is tremendous pressure to vertically integrate, because you can only justify R&D on basic technologies if you also control the product that gets sold to end-users.
I'm not sold on ending the Federal Circuit. It would just lead to forum shopping and arbitraging circuit splits. That would only increase litigation due to uncertainty.
I'll have to read the EFFs white paper to see why they feel this way. But IMO the Fed circuit + SCOTUS keeping them honest really works.
I also question how much the SCOTUS keeps them honest when they blatently ignore SCOTUS decisions, and SCOTUS does not have the bandwidth to continuously overturn them.
Defining a software patent is not hard. A patent is a software patent if you can infringe it entirely with software. Software can't infringe a patent for a cholesterol drug or a light bulb, so those aren't software patents.
> I look at the tech industry, and see one where product companies rather than hard R&D companies make all the money. The folks at SRI who invented Siri get a small license fee, while Apple makes billions by wrapping it with a candy shell.
There is so much more to a modern smartphone than just Siri that the idea that SRI should be getting any significant fraction of the revenue is a little disingenuous. The "problem" with software is that you can have ten thousand discrete inventions that each individually would have been a revolution in 1995 but the market still expects you to package them all together and sell the device for around $600, and then sell a device with all the same software but less powerful hardware for $150. After the costs of hardware design, manufacturing, marketing, distribution, administration, etc., plus the cost of writing the software to actually implement tens of thousands of "inventions", you would be lucky to give each inventor a penny per device.
But the real problem is you can't accurately price the contribution each inventor makes. There are too many of them that are each worth such a small percentage of the total that spending any kind of significant resources to evaluate their individual value isn't cost effective. But if you can't price patents accurately then you don't have a functioning market, which is fundamentally why we end up with such poor quality patents in software -- if the bad ones go on the pile with the good ones and they all get a similar payout then it's a lot easier to collect rent by filing low quality patents than actually spending money on useful R&D.
> It's an industry where there is tremendous pressure to vertically integrate, because you can only justify R&D on basic technologies if you also control the product that gets sold to end-users.
I don't see what vertical integration has to do with it. Microsoft circa 2002 had every incentive to invest in operating systems R&D, and they did, but they didn't need to sell the hardware or control the market for third party applications to do it.
If you're actually selling software to users you're competing against the previous version of your own software as much as you are against competitors anyway. And the patent can't convince users to upgrade once they already have a version that implements it. If anything software patents are contributing to the vertical integration because a vendor that can establish a monopoly or otherwise strong market position using patents (and any combination of other tactics) can use it to leverage that market position into control of vertical markets.
If you want less vertical integration then what you want is more modular systems, open standards and free software. Which is the opposite of what software patents do.
Presumably, by "entirely with software" you mean "entirely with software running on a [hardware] comupter." And that's why so many companies oppose eliminating "software patents" even though it seems like a no-brainer to many.[1] We're not just talking about your typical troll patent, but e.g. techniques for processing signals from MRI machines. We're talking about the software behind self-driving cars.
> But if you can't price patents accurately then you don't have a functioning market, which is fundamentally why we end up with such poor quality patents in software -
Your right, this is a huge problem. It would be a lot better to have fewer, stronger patents with well-defined boundaries.
> If you want less vertical integration then what you want is more modular systems, open standards and free software. Which is the opposite of what software patents do.
Your two examples support my point. I think it's underestimated how much we owe the open PC ecosystem to the fact that Microsoft could rely on strong copyright, enabling them to make money selling an OS. If it wasn't practical to protect the OS as a separate product, they would have had a tremendous incentive to get into the PC business.[2]
As for open standards, most of our hardware standards are built on patent pools. They enable companies to cooperate to build standards, while keeping out freeloaders.
[1] http://partnershipforamericaninnovation.org
[2] We have more open source than ever in the hands of ordinary consumers, but only because software has taken a backseat to hardware and services that can be more easily monetized without the worry of piracy. Everyone uses web browsers, but there's no money in building web browsers. Instead, the two major engines are developed by a cell phone company and an advertising company.
A [hardware] computer that exists in the prior art, yes.
> And that's why so many companies oppose eliminating "software patents" even though it seems like a no-brainer to many. [1] We're not just talking about your typical troll patent, but e.g. techniques for processing signals from MRI machines. We're talking about the software behind self-driving cars.
I don't get the "that's why" at all. If you come up with new techniques for processing signals from MRI machines that it would be practical for a doctor to calculate by hand on paper then you can't patent them but presumably the same people would still like to. The use of a computer isn't why anyone would want to patent such things, it's just a conceit to circumvent the unpatentability of math. Any sufficiently fast general purpose computer of any method of operation whatsoever could stand in as the "hardware" for any software patent, because you're not patenting anything to do with the hardware.
It doesn't do anything to say that math done by a computer should be patentable. If you can do math you can do it with a computer. What you're really getting at is that you think some math should be patentable but not all math, without articulating any kind of reasoned dividing line between the two. Which is how we get here:
> Your right, this is a huge problem. It would be a lot better to have fewer, stronger patents with well-defined boundaries.
Certainly it would. But how?
The problem isn't a regulatory one, it's an economic one. Even if you exclude all of the existing software patents that should not have been issued because the claims are excessively broad or vague or claim material in the prior art, the remaining patents still don't all have the same value, but there would still be so many that they couldn't be accurately priced cost-effectively at scale. And having to pay a hundred times what a patent is worth because valuing it is too expensive has essentially the same consequences as having to pay for a patent that shouldn't have been issued because invalidating it is too expensive. It provides the same incentive and ability to file low value/low quality patents and then use them to collect undue rents from everyone.
And even that's assuming some hand wavy magic solution to eliminating all the improvidently granted software patents, which it isn't at all clear how to do cost-effectively in practice.
The choice we seem to have is between no software patents and prolific low quality software patents. Given that choice I think no software patents wins.
> I think it's underestimated how much we owe the open PC ecosystem to the fact that Microsoft could rely on strong copyright, enabling them to make money selling an OS.
Which is why software patents are unnecessary. You can do well enough with just copyright, not least because the cost of writing and testing software is generally much more expensive than coming up with the idea of what software to write. Copyright protects the thing that required most of the resources to create. Someone who wants to copy it has to duplicate all of that effort, which takes time and inhibits freeloading, and in the meantime the original creator enjoys first to market advantage and builds network effects.
Meanwhile someone who does copy the general idea is forced to present their own take on it, which in practice means making their own improvements and advancing the status quo. Android obviously copied much from the iPhone, but they also made improvements that Apple then copied back. Then Apple has to make further improvements of their own instead of resting on their laurels if they want to stay in the game. Copyright for software inhibits freeloading just enough without eliminating competition, so you get the best of both worlds, and hence the rapid rate of progress we've seen.
Having patents on top of copyright throws all of that out of balance. It gives too much advantage to incumbents and large entities. Just copyright and the network effects inherent to software have more than enough propensity to create monopolists as long as the monopolist doesn't fall asleep and allow a new competitor to surpass them. Software patents allow the incumbents to prevent even that by maintaining a patent thicket around the market to wall out non-incumbent players.
Patent trolls are Non Practicing Entities who file lawsuits against companies who are actually practicing an invention. The problem though is that when the United States was created, it chose to drop the requirement to practice for a very specific reason: it discriminates against the poor and middle class, who might be smart enough to invent some world changing technology but have no way to raise millions of dollars to produce their invention. Such a requirement was seen as anti-democratic by the founding fathers, and historically NPEs have actually made huge contributions to human knowledge... E.g. the person who invented the computer didn't have the money to actually go out and build one.
There certainly have come to be a lot of abuses with the current system that need to fixed. But it's worth keeping in mind that while Mark Cuban himself might not be a bad guy, the reason the founding fathers chose to let people file patents without having to build out the invention was precisely to protect us from people like him, who could come in and just steal someone else's efforts wholesale because they happen to have more money. And in the past couple years, a lot of law professors who were originally against NPEs have now reversed their opinions and acknowledged that the situation is more complex than they had originally believed.
Edit: And they still require working models of anything claiming to implement perpetual motion.[2]
[1] http://www.nytimes.com/2002/02/18/business/18PATE.html?pagew...
Sorry, can you perhaps quote the bit that says that. In that link I see they reject perpetual motion machines under 35 USC 101 but I don't see the part saying that such an objection can be combated with presentation of a model, or indeed that the objection is made in a form of "submit a working model to continue this application".
The USPTO likely has no facilities to examine or even store such models.
And this is regardless of whether or not the patent system as a whole should be abolished.
I think some effort should be made to adapt the protection a patent grants to software, in order to incentivize R&D without completely hindering things such as free software.
Just today I read an article which said that Android's voice recognition was greatly improved by using (old) neural nets algorithm but with more data and CPU power than the initial attempts. Do not assume that good functionality is necessarily the result of an improvement of algorithm.
The practical thing then is to come up with a solution for pharma, and then abolish the patent system.
But with software should go business-process patents, which suffer from the same "patent a way of doing things" problems. Patents do well to cover the result of a process, and shouldn't cover the process itself. In software, you can have two patents end up with the same result, as long as they arrive there by different paths.
With hard goods, you invent inline skates. Someone can't declare another patent arriving at the same result but using a different manufacturing process to create inline skates.
http://www.dissentmagazine.org/article/patents-against-peopl...
http://www.huffingtonpost.com/jeffrey-sachs/the-drug-that-is...
http://blogs.reuters.com/great-debate/2014/03/31/how-big-pha...
(there are many more such examples)
Why would Qualcomm bother making new designs if some other company will just rip off their design.
All it would do is further weaken the engineers role in society and favor the banker. Without IP, the only thing that matters is capital to build production facilities.
Rather than being a reward for brining an innovation to market, the monopoly (patent) is awarded long before the bulk of the work has been done. No reward is offered in the patent system for doing the hard and expensive part -- proving efficacy and safety. But the patent means that even if you choose not to spend the money to bring it to market, nobody else is allowed to.
Something like 95% of pharmaceuticals fail to be effective and safe. In other words, 95% of pharmaceutical patents are for inventions that ultimately don't work.
"A patent for something that does not work" ought not be allowed -- the pharmaceutical patent should only be awarded after efficacy and safety has been proved (incentivising the hard part).
Possibly with some stipulation that the first company to submit and pass approval gets a N-year exclusivity.
Could pharma companies pay an R&D tax into a shared pool issued as research grants by the NIH, with a quasi-market for allocating research funds? That way non-researching manufacturers of generics still contribute to new drug research -- no freeloading.
Furthermore, pharmaceutical companies have no incentive to find a real cure for anything if they can make more money fighting symptoms.
Here is my proposal for that sort of strategy: https://groups.google.com/d/msg/openmanufacturing/vS4ju1VqXb...
Basically the idea is that there are extremely entrenched interests, so it is unlikely that they will just roll over and die. Instead, there should be a plan for deprecating the patent system.
I'm in the camp that believes there shouldn't be software patents period. Simple as that.
As for ending the exclusive jurisdiction of the Federal Circuit Court of Appeals on patent case appeals, I assume this is because that court has frequently been overly friendly to patent plaintiff claims. Some might argue it's gone so far as regulatory capture. What's more, the court has repeatedly been overturned by the SCOTUS.
That's a fair argument but what they're forgetting was that the USCoAftFC was introduced to solve a problem. We have the problem now that there is inconsistent treatment of patent cases in Federal district courts, leading plaintiffs to file cases in "friendly" jurisdictions, most notably East Texas.
Prior to 1982, you had the same problem at the appeals level and you had a rush to file appeals in friendly jurisdictions. This court was certainly intended to provide consistent treatment of patent cases and--ideally--allow for experts in patent law to handle such cases.
But the fact that this court has really had trouble finding a patent they didn't like is a sideshow: the real problem here is software patents.
You can't patent a mathematical formula and as anyone with any kind of Computer Science education could tell you, an algorithm is essentially indistinguishable from a mathematical function. The fact that the US courts have ignored this or simply been unable to comprehend it is at the root of the problem.
Daniel Nazer Staff Attorney and the Mark Cuban Chair to Eliminate Stupid Patents Electronic Frontier Foundation daniel@eff.org
Also, every time I read about the Mark Cuban Chair to Eliminate Stupid Patents I have a mysterious urge to watch "Zoolander".
https://www.design.upenn.edu/city-regional-planning/graduate... Professor Birch is the Lawrence C. Nussdorf Chair of Urban Research and Education.
http://www.thelancet.com/lanres/advisory-board Professor Klugman is the William H Foege Chair of Global Health at Emory University, Atlanta, GA, USA.
http://www.bahaipeacechair.umd.edu/events/apr29-2015 Professor AMITAV ACHARYA is the UNESCO Chair in Transnational Challenges and Governance and is Professor of International Relations at the School of International Service, American University, Washington, D.C.
https://www.law.louisville.edu/faculty/interdisciplinary-cir... Professor Tony Arnold is the Boehl Chair in Property and Land Use.
https://www.american.edu/provost/human-rights/Faculty-SIS.cf... Professor Ahmed is the Ibn Khaldun Chair of Islamic Studies who studies American society through the experiences of the Muslim community.
Who's Mark Cuban? See Wikipedia.[1] His expertise is in promoting sales-oriented companies and getting them acquired by bigger companies. His first big deal was selling Micro Solutions (a reseller of boxed software) to CompuServ. Then he got into sports webcasting ("broadcast.com") and sold that to Yahoo during the first dot-com boom. In each case, someone else created the content, and Cuban marked it up and resold it. That's his business model.
Wikipedia on "broadcast.com": "The record IPO made instant financial successes out of the company's employees through stock options, making 100 employees millionaires on paper (although most of them were unable to exercise their options and sell their shares before the stock price dropped) and founders Cuban and Wagner billionaires."
So that's who's behind this.
citation needed
("This admission reflects the view that Indian drug companies are finding it difficult to develop successful new molecules. Discovering new drugs requires huge investment, and has not been favourably looked upon by risk-averse Indian investors. Several Indian molecules have failed in the clinic, including Piramal’s head and neck cancer candidate P276 in 2012. Even the antimalarial Synriam (arterolane and piperaquine), which Ranbaxy hailed as India’s first domestically developed drug, was originally discovered elsewhere.")
Basically, if an entity has invested $X into RND for patent Y, then patent Y should be valid until some $(Z*X) has been earned by the entity. Where Z is some constant; or stepped like tax brackets.
Example: A company develops some new software: it cost $500,000 of Engineering effort. They are awarded a patent. The patent should be valid until that company has earned $5 million (Z=10; ie 1000% ROI).
Example: A company develops some new drug: it cost $5,000,000,000 for RND. They are awarded a patent. The patent should be valid until that company has earned $50 Billion (Z=10; ie 1000% ROI).
I agree it may be hard to prove "amount spent on patent" or "profit earned from patent". However, at least to me, it seems as hard as the IRS auditing a company's taxes, or as hard as auditing a public companies quarterly financial disclosures.
Right now they're good for between 14 to 20 years (1) which seems too long to me. I'm not sure what the right number is, maybe between 5 - 10? Even that seems long, but then again I don't have anything innovations to patent so I'm probably biased.
(1) http://patents.stackexchange.com/questions/312/how-long-are-...
I'm fairly pro patent, but I disagree. Unlike copyright where there is an almost unlimited amount of expression available, some inventions are just something people would independently come up with.
Nobody would organically and independently come up with Mickey Mouse or Sherlock Holmes.
But different teams would have invented the BJT transistor if Bardeen, et al. never existed.
Patents length acknowledges that by not giving exclusive rights forever. It's more of a challenge prize than a pure ownership of the idea indefinitely.
First copyright is always a life long idea, but the focus of patents have always been to incentivice long term research efforts that have budget constraint by having a mid-term monopoly
problem today: a lot of trivial design-patents and even patents that are used in the wars between big corps. as one of my advisor board state - screw that patent, we cannot defend it anyway Behind a lot of those patents there is no research in the sense but it rather came out of "usual" engineering.
i think that the proof of non-trivial has to be a part of the application and is better suited than discussion about life-time - because patents could still have a strong point in basic-research
Problem is what to do with the already existing bogus patents - any suggestions?
Not true in the USA until Disney started twisting the law. This idea has a longer history in Europe.
See http://www.arl.org/focus-areas/copyright-ip/2486-copyright-t... for a more detailed history.
But that's an interesting idea. In that system how is the valuation of an innovation determined?
This way big pharmaceuticals put a couple million into a new drug and they get to profit for a few years. An Apple engineer makes slide to unlock in a couple days and given the number of iphones sold the patent is over quite quickly.
tl;dr a salary cap for patents based on R&D cost
It certainly doesn't fully address the fundamental problems of the system, but it could be a reasonable first step.
http://www.washingtonpost.com/blogs/the-switch/wp/2013/11/20...
I don't think that a patent troll, for example, could prove that the world would be a better place by them enforcing their patents. If they could, then we'd be better off letting them do it (by definition).
Wow, I can't believe award of costs isn't standard in such cases already. Incredible.
1. The patent term should be shorter for software patents. It should last no more than five years from the application date.
Software doesn't move that fast. The Internet is now over 30 years old. It's been 61 years since the first FORTRAN compiler. At various times in the past, aircraft technology and radio technology advanced at least as fast as computer technology. Computing is not special; it's just a currently active area.
2. If the patent is invalid or there’s no infringement, patent trolls should have to pay the winning party’s legal fees.
This provides a way for big companies to intimidate patent holders. A small patent holder can be threatened with huge legal bills. The odds of winning a patent infringement lawsuit are about 40-50%, and even if you have a strong patent, it's common to lose.
3. Patent applicants should be required to provide an example of running software code for each claim in the patent.
The USPTO has the right to demand a working model if they are not convinced the patented concept would work. At one time, they did. (Patent models are cute collectables now.) Current USPTO policy is to demand a working model only for things such as antigravity machines or perpetual motion machines. Unworkable patents do not seem to be a problem in the software area.
4. Infringers should avoid liability if they independently arrive at the patented invention.
Absolutely not. Infringers will routinely lie about that, claiming independent invention, and it's really tough to prove intent. There's a provision in current law which allows for a defense of independent invention for, I think, one year after patent issue. That's sufficient.
5. Patents and licenses should be public upon filing. Patent owners should be required to keep their public ownership records up-to-date.
Patent applications are already published at the 18 month mark.
6. The law should do more to limit damages so that a patent owner can’t collect millions if the patent represented only a tiny fraction of a defendant’s product.
A patent is the right to say "no, you can't do that". Infringers aren't entitled to practice the patent at all and then just pay damages if they lose.
7. Congress should commission a study and hold hearings to examine whether software patents actually benefit our economy at all.
The purpose of the patent system isn't to "benefit the economy". It's to "promote the Progress of Science and useful Arts", according to the Constitution.
As for "patent trolls", according to the EFF's own database[1], there are only a few real "patent trolls", with one firm in Texas being the big generator of threatening letters. The top firm has 15 letters in the EFF's database. (They've sent more.) There are a very small number of patents being "trolled".
The EFF was arguing for this in the previous session of Congress. Once it came out how weak their case was, the legislation was dropped.