Parent reform? LOL
August 4, 2011 2:32 PM Subscribe
Is patent reform even possible?
Aside from the patent trolls like Intellectual Ventures, there has been a considerable upsurge in patent drama involving the big boys :
- Apple has been leading a patent war against Android with cases against Motorola, Samsung, and
HTC (previously), which Microsoft happily joined. In parallel, Oracle has joined by sue Google directly for both patent and copyright infringement related to Android. You'll also find some lawyer drama, unhappy developers, and an arms race.
- Spotify "solved" their RIAA problems to a warm American welcome from PacketVideo. Good luck Zediva!
- An earlier ruling invalidating Myriad Genetic's patents covering most breast cancer tests has been overturned on appeal.
Aside from the patent trolls like Intellectual Ventures, there has been a considerable upsurge in patent drama involving the big boys :
- Apple has been leading a patent war against Android with cases against Motorola, Samsung, and
HTC (previously), which Microsoft happily joined. In parallel, Oracle has joined by sue Google directly for both patent and copyright infringement related to Android. You'll also find some lawyer drama, unhappy developers, and an arms race.
- Spotify "solved" their RIAA problems to a warm American welcome from PacketVideo. Good luck Zediva!
- An earlier ruling invalidating Myriad Genetic's patents covering most breast cancer tests has been overturned on appeal.
Is patent reform even possible?
Of course it is!
First, though, you need to pay me a licensing fee. I own the patent on reform.
posted by Thorzdad at 2:39 PM on August 4, 2011
Of course it is!
First, though, you need to pay me a licensing fee. I own the patent on reform.
posted by Thorzdad at 2:39 PM on August 4, 2011
The supreme court messed this up. They need to fix it.
posted by koeselitz at 2:39 PM on August 4, 2011 [6 favorites]
posted by koeselitz at 2:39 PM on August 4, 2011 [6 favorites]
Someone should stunt-register a patent outlining a reasonable and transparent means of reforming the patent system.
On preview: what everyone said already.
posted by 2bucksplus at 2:42 PM on August 4, 2011 [2 favorites]
On preview: what everyone said already.
posted by 2bucksplus at 2:42 PM on August 4, 2011 [2 favorites]
The Evolving IP Marketplace: Aligning Patent Notice and Remedies with Competition is an FTC report providing a superior and disinterested analysis of these issues, as well as concrete and actionable suggestions for reform.
posted by anigbrowl at 2:48 PM on August 4, 2011
posted by anigbrowl at 2:48 PM on August 4, 2011
Would detailed plans for a new patent system need to be patented?
Only if Monsanto can manage to do it through a genetically modified seed of some sort.
posted by IvoShandor at 2:48 PM on August 4, 2011
Only if Monsanto can manage to do it through a genetically modified seed of some sort.
posted by IvoShandor at 2:48 PM on August 4, 2011
I came here to make the same sordid joke, apparently. "Hey, I patented reforming the patent system!"
But stick around for the prolog and encore. A million monkeys are going to design a record player that can't be broken by any record played on it.
posted by loquacious at 2:48 PM on August 4, 2011 [1 favorite]
But stick around for the prolog and encore. A million monkeys are going to design a record player that can't be broken by any record played on it.
posted by loquacious at 2:48 PM on August 4, 2011 [1 favorite]
The Myriad ruling is a gigantic clusterfuck and will lead to disaster. It rests on a total non-distinction between substances that are "found in nature" and ones that are "markedly different" or "chemically different." In the case at hand, the Court held that an isolated gene is "markedly different" from anything found in nature because it's been isolated from its surrounding nucleotides using a chemical process. Duh.
Of course, if you look closely enough, almost anything is chemically different from anything else, even if only trivially. Under this decision you could patent pure lithium because lithium is never found in its pure form in nature. The Court totally handwaves past this.
The Supreme Court needs to rein this in, but of course it won't.
posted by eugenen at 2:49 PM on August 4, 2011 [3 favorites]
Of course, if you look closely enough, almost anything is chemically different from anything else, even if only trivially. Under this decision you could patent pure lithium because lithium is never found in its pure form in nature. The Court totally handwaves past this.
The Supreme Court needs to rein this in, but of course it won't.
posted by eugenen at 2:49 PM on August 4, 2011 [3 favorites]
I don't understand how the fact that there is patent litigation means the system needs reform. And what exactly is wrong with inventors assigning the rights to their patents. Its not like every Tom, Dick and Harriet has the capability to make electric cars. Someone does and that someone can buy the rights.
There is one problem and that is there is not enough examiners. They average examining 2 patents per day. This means less time to get a job and huge turnover in examiners. It also means deliberately making the BPA sort out that mess.
posted by Ironmouth at 2:56 PM on August 4, 2011 [1 favorite]
There is one problem and that is there is not enough examiners. They average examining 2 patents per day. This means less time to get a job and huge turnover in examiners. It also means deliberately making the BPA sort out that mess.
posted by Ironmouth at 2:56 PM on August 4, 2011 [1 favorite]
Its not like every Tom, Dick and Harriet has the capability to make electric cars. Someone does and that someone can buy the rights.
If we were talking about electric cars, no one would be complaining. Instead we have patents on putting press releases online. And rules that let trolls extort nuisance settlements out of operating companies by driving up the transaction costs of getting rid of their BS lawsuits.
It's not "the fact that there is patent litigation." It's the patents that are being litigated and how the litigation is being conducted.
posted by eugenen at 3:00 PM on August 4, 2011 [5 favorites]
If we were talking about electric cars, no one would be complaining. Instead we have patents on putting press releases online. And rules that let trolls extort nuisance settlements out of operating companies by driving up the transaction costs of getting rid of their BS lawsuits.
It's not "the fact that there is patent litigation." It's the patents that are being litigated and how the litigation is being conducted.
posted by eugenen at 3:00 PM on August 4, 2011 [5 favorites]
Ironmouth,
Because there is a crossover point after which it's more expensive to take the risk to innovate, then it is to simply release the same, proven safe content over and over again.
This can only happen if all your competitors are under similar constraints, but take a look.
posted by effugas at 3:02 PM on August 4, 2011 [2 favorites]
Because there is a crossover point after which it's more expensive to take the risk to innovate, then it is to simply release the same, proven safe content over and over again.
This can only happen if all your competitors are under similar constraints, but take a look.
posted by effugas at 3:02 PM on August 4, 2011 [2 favorites]
Maybe it needs reform because the whole edifice is built on an antisocial concept?
Jonas Salk refused to patent the polio vaccine he invented, stating "There is no patent. Could you patent the sun?"
Patents are, at heart, a manifestation of greed.
posted by jet_manifesto at 3:04 PM on August 4, 2011 [1 favorite]
Jonas Salk refused to patent the polio vaccine he invented, stating "There is no patent. Could you patent the sun?"
Patents are, at heart, a manifestation of greed.
posted by jet_manifesto at 3:04 PM on August 4, 2011 [1 favorite]
Ironmouth: “I don't understand how the fact that there is patent litigation means the system needs reform. And what exactly is wrong with inventors assigning the rights to their patents. Its not like every Tom, Dick and Harriet has the capability to make electric cars. Someone does and that someone can buy the rights. There is one problem and that is there is not enough examiners. They average examining 2 patents per day. This means less time to get a job and huge turnover in examiners. It also means deliberately making the BPA sort out that mess.”
Exactly. That's what we're saying. There need to be more examiners that apply a better criteria to the patent approval process. That's what patent reform means.
posted by koeselitz at 3:09 PM on August 4, 2011
Exactly. That's what we're saying. There need to be more examiners that apply a better criteria to the patent approval process. That's what patent reform means.
posted by koeselitz at 3:09 PM on August 4, 2011
I think the system needs reform for two major reasons, Ironmouth. First, the whole concept of patenting business methods seems utterly wrongheaded and anticompetitive without the usual benefit of patentability, which is to say encouragement of economically useful innovation. (Jet_manifesto, that's why patents are a good idea usually. People who know their original ideas will be rewarded are more likely to pursue them.) Second, "patent trolls" are certainly anti competitive and a drag/impediment to economically valuable innovation.
I am really gnashing my teeth at the way legislation directed at these problems has bogged down in old fashioned catering to special interests. How incredibly short sighted at a time that the economy is at best sluggish.
Great post, though. Thanks.
posted by bearwife at 3:15 PM on August 4, 2011
I am really gnashing my teeth at the way legislation directed at these problems has bogged down in old fashioned catering to special interests. How incredibly short sighted at a time that the economy is at best sluggish.
Great post, though. Thanks.
posted by bearwife at 3:15 PM on August 4, 2011
the whole concept of patenting business methods seems utterly wrongheaded and anticompetitive without the usual benefit of patentability, which is to say encouragement of economically useful innovation
That's not the only possible benefit of a business method patent. Consider the complex financial products and high-frequency trading schemes that are all the rage in Wall Street these days. Business method patents can bring those into the open (e.g. patent application 11/786,252). Without business method patents they would remain trade secrets. If we have to have Wall Street doing that kind of stuff then I'd prefer that it be based on public knowledge.
posted by jedicus at 3:21 PM on August 4, 2011
That's not the only possible benefit of a business method patent. Consider the complex financial products and high-frequency trading schemes that are all the rage in Wall Street these days. Business method patents can bring those into the open (e.g. patent application 11/786,252). Without business method patents they would remain trade secrets. If we have to have Wall Street doing that kind of stuff then I'd prefer that it be based on public knowledge.
posted by jedicus at 3:21 PM on August 4, 2011
You know, Google sure has a lot of patents for being so opposed to patents.
posted by entropicamericana at 3:28 PM on August 4, 2011 [3 favorites]
posted by entropicamericana at 3:28 PM on August 4, 2011 [3 favorites]
You know, Google sure has a lot of patents for being so opposed to patents.
Google needs something to deter billion-dollar patent lawsuits from Oracle, Apple, etc. If Google could make all software patents go "poof," including its own, I'm certain it would.
posted by eugenen at 3:32 PM on August 4, 2011
Google needs something to deter billion-dollar patent lawsuits from Oracle, Apple, etc. If Google could make all software patents go "poof," including its own, I'm certain it would.
posted by eugenen at 3:32 PM on August 4, 2011
Including their own advertising or search patents? What color, exactly, is the sky in your world?
posted by entropicamericana at 3:35 PM on August 4, 2011
posted by entropicamericana at 3:35 PM on August 4, 2011
Including their own advertising or search patents? What color, exactly, is the sky in your world?
I will bet you upwards of ten dollars. I don't think Google has staked its business on its advertising and search patents, and it certainly has not asserted those patents in court. I don't know what kind of licensing they do but I doubt it's huge amounts.
The stuff they consider valuable -- search algorithms, spam detection and the like -- they keep secret.
posted by eugenen at 3:39 PM on August 4, 2011
I will bet you upwards of ten dollars. I don't think Google has staked its business on its advertising and search patents, and it certainly has not asserted those patents in court. I don't know what kind of licensing they do but I doubt it's huge amounts.
The stuff they consider valuable -- search algorithms, spam detection and the like -- they keep secret.
posted by eugenen at 3:39 PM on August 4, 2011
You know, Google sure has a lot of patents for being so opposed to patents.
Google is run by hypocrites, sure.
But perhaps they are really just sore losers:
Google says we bought Novell patents to keep them from Google. Really? We asked them to bid jointly with us. They said no.
They had bid a round number of their own in the process.
So either they wanted patents as much as everyone else and are just sore about losing out to their competitors, or they are a bunch of schoolchildren doing performance art in front of their shareholders.
posted by Blazecock Pileon at 3:41 PM on August 4, 2011 [2 favorites]
Google is run by hypocrites, sure.
But perhaps they are really just sore losers:
Google says we bought Novell patents to keep them from Google. Really? We asked them to bid jointly with us. They said no.
They had bid a round number of their own in the process.
So either they wanted patents as much as everyone else and are just sore about losing out to their competitors, or they are a bunch of schoolchildren doing performance art in front of their shareholders.
posted by Blazecock Pileon at 3:41 PM on August 4, 2011 [2 favorites]
Not to rain on your usually anti-Google rants, Blazecock, but the joint bid was for Novell patents and the round number for Nortel patents.
posted by MikeKD at 3:46 PM on August 4, 2011 [1 favorite]
posted by MikeKD at 3:46 PM on August 4, 2011 [1 favorite]
Yes.
Step 1) End legal incorporation in the US, and preferably worldwide.
Note that that first step solves a good number of other "impossible" problems as well.
posted by pla at 3:46 PM on August 4, 2011
Step 1) End legal incorporation in the US, and preferably worldwide.
Note that that first step solves a good number of other "impossible" problems as well.
posted by pla at 3:46 PM on August 4, 2011
You know, Google sure has a lot of patents for being so opposed to patents.
Large tech companies don't have any choice. They get them defensively. They all do it to a certain extent.
I'm confused as to how anyone can seriously defend software patents. Especially given the existence of companies like Lodsys, Intellectual Ventures, etc running around treating the system like a racket for fleecing people who actually make stuff.
PS. Surprised this excellent This American Life episode about how messed up the patent system is isn't linked in this thread yet (unless I missed it?).
posted by sparkletone at 3:47 PM on August 4, 2011 [1 favorite]
Large tech companies don't have any choice. They get them defensively. They all do it to a certain extent.
I'm confused as to how anyone can seriously defend software patents. Especially given the existence of companies like Lodsys, Intellectual Ventures, etc running around treating the system like a racket for fleecing people who actually make stuff.
PS. Surprised this excellent This American Life episode about how messed up the patent system is isn't linked in this thread yet (unless I missed it?).
posted by sparkletone at 3:47 PM on August 4, 2011 [1 favorite]
Sorry, but I think these examples are very poor ways of illuminating the issues surrounding patent reform.
posted by Clyde Mnestra at 3:50 PM on August 4, 2011
posted by Clyde Mnestra at 3:50 PM on August 4, 2011
Lots and lots of people tend to take complex issues and try to provide a "simple" answer that just doesn't work, is stupid, would make things worse, etc. That said? The answer to this mess is simple. Software/algorithms should be protected by copyright, not patents. The courts royally messed that one up when they overruled the patent office. The fix is just to go back to the way things were.
I've never heard anything that convincingly states otherwise, and while more complicated patent reform may be possible, I doubt it would be better.
posted by jsturgill at 3:51 PM on August 4, 2011
I've never heard anything that convincingly states otherwise, and while more complicated patent reform may be possible, I doubt it would be better.
posted by jsturgill at 3:51 PM on August 4, 2011
bearwife, I think the 'patents encourage innovation' line of reasoning is a misleading oversimplification of the motivations of creators. It seems to me that some people who are innovating are not 'doing it for the patent', as it were - but rather because they love or need to create. I think we, as a society, indeed as humanity, would benefit from a system which is more encouraging of this joyful creative sentiment, rather than the purely economic incentives that currently dominate thinking in the IP field.
posted by jet_manifesto at 3:52 PM on August 4, 2011
posted by jet_manifesto at 3:52 PM on August 4, 2011
Also, the reason google didn't join the consortium to purchase the patents:
It's not surprising that Microsoft would want to divert attention by pushing a false "gotcha!" while failing to address the substance of the issues we raised. If you think about it, it's obvious why we turned down Microsoft’s offer. Microsoft's objective has been to keep from Google and Android device-makers any patents that might be used to defend against their attacks. A joint acquisition of the Novell patents that gave all parties a license would have eliminated any protection these patents could offer to Android against attacks from Microsoft and its bidding partners. Making sure that we would be unable to assert these patents to defend Android — and having us pay for the privilege — must have seemed like an ingenious strategy to them. We didn't fall for it.
(full text)
posted by jsturgill at 3:54 PM on August 4, 2011 [4 favorites]
It's not surprising that Microsoft would want to divert attention by pushing a false "gotcha!" while failing to address the substance of the issues we raised. If you think about it, it's obvious why we turned down Microsoft’s offer. Microsoft's objective has been to keep from Google and Android device-makers any patents that might be used to defend against their attacks. A joint acquisition of the Novell patents that gave all parties a license would have eliminated any protection these patents could offer to Android against attacks from Microsoft and its bidding partners. Making sure that we would be unable to assert these patents to defend Android — and having us pay for the privilege — must have seemed like an ingenious strategy to them. We didn't fall for it.
(full text)
posted by jsturgill at 3:54 PM on August 4, 2011 [4 favorites]
> Its not like every Tom, Dick and Harriet has the capability to make electric cars. Someone does and that someone can buy the rights.
But that's not what's happening.
What's happening is those "someones" are buying up large portfolios of vague patents and then suing people who are trying to make new things.
posted by mmrtnt at 3:54 PM on August 4, 2011 [3 favorites]
But that's not what's happening.
What's happening is those "someones" are buying up large portfolios of vague patents and then suing people who are trying to make new things.
posted by mmrtnt at 3:54 PM on August 4, 2011 [3 favorites]
Maybe it needs reform because the whole edifice is built on an antisocial concept? Jonas Salk refused to patent the polio vaccine he invented, stating "There is no patent. Could you patent the sun?" Patents are, at heart, a manifestation of greed.
Salk had backing from on high giving him a steady source of finance over many years. If you're just some guy with an idea for a better mousetrap, then chances are that you're going to need to have to sell it. Many inventors are no good at business or marketing, but if they can license the patent to someone who is then that's better for them, the icensee, and the public. The basic idea of patentability is an excellent one.
I am not at all enthused about the idea of moving to copyright for software, since you could have just as many stupid arguments about copyrightability as one could about patentability, but the term involved would be 95 years rather than 20.
posted by anigbrowl at 3:59 PM on August 4, 2011
Salk had backing from on high giving him a steady source of finance over many years. If you're just some guy with an idea for a better mousetrap, then chances are that you're going to need to have to sell it. Many inventors are no good at business or marketing, but if they can license the patent to someone who is then that's better for them, the icensee, and the public. The basic idea of patentability is an excellent one.
I am not at all enthused about the idea of moving to copyright for software, since you could have just as many stupid arguments about copyrightability as one could about patentability, but the term involved would be 95 years rather than 20.
posted by anigbrowl at 3:59 PM on August 4, 2011
Don't worry folks! Our freedom loving Tea Partiers will strike down these "rules and regulations" stifling the free market any day now!
posted by Max Power at 4:02 PM on August 4, 2011
posted by Max Power at 4:02 PM on August 4, 2011
Its not like every Tom, Dick and Harriet has the capability to make electric cars. Someone does and that someone can buy the rights.
Embedded in this statement is the assumption that someone should own the right to make electric cars. It's a car that runs on electricity! There's no innovation just in that concept. Why should the government help someone get paid for people using that concept?
posted by benito.strauss at 4:02 PM on August 4, 2011 [1 favorite]
Embedded in this statement is the assumption that someone should own the right to make electric cars. It's a car that runs on electricity! There's no innovation just in that concept. Why should the government help someone get paid for people using that concept?
posted by benito.strauss at 4:02 PM on August 4, 2011 [1 favorite]
Not to rain on your usually anti-Google rants, Blazecock, but the joint bid was for Novell patents and the round number for Nortel patents.
In conclusion, Libya is a land of contrast. Thank you.
Actually, you're right, so I take back the connection of their bid for one set of patents to another set of patents.
In any case, if Google hates patents so much, they sure seem happy to be part of the problem.
posted by Blazecock Pileon at 4:06 PM on August 4, 2011 [2 favorites]
In conclusion, Libya is a land of contrast. Thank you.
Actually, you're right, so I take back the connection of their bid for one set of patents to another set of patents.
In any case, if Google hates patents so much, they sure seem happy to be part of the problem.
posted by Blazecock Pileon at 4:06 PM on August 4, 2011 [2 favorites]
I am not at all enthused about the idea of moving to copyright for software, since you could have just as many stupid arguments about copyrightability as one could about patentability, but the term involved would be 95 years rather than 20.
Search google books for a word. Then add another word, which might grammatically follow. Then another, and then another. Within five or six words, every time, you will find one of the following: a single result, no results, or a cliche.
Code is the same in this respect. The idea/process is either too short, simple, and clear to be protected, or it is so complicated that every single group that attempts to implement it will do so in a unique way. Any overlap is clear sign of plaigerism.
Copyright is perfect for code, although sure, perhaps the length of protection could be shortened for code/all copyright.
posted by jsturgill at 4:09 PM on August 4, 2011
Search google books for a word. Then add another word, which might grammatically follow. Then another, and then another. Within five or six words, every time, you will find one of the following: a single result, no results, or a cliche.
Code is the same in this respect. The idea/process is either too short, simple, and clear to be protected, or it is so complicated that every single group that attempts to implement it will do so in a unique way. Any overlap is clear sign of plaigerism.
Copyright is perfect for code, although sure, perhaps the length of protection could be shortened for code/all copyright.
posted by jsturgill at 4:09 PM on August 4, 2011
bearwife, I think the 'patents encourage innovation' line of reasoning is a misleading oversimplification of the motivations of creators. It seems to me that some people who are innovating are not 'doing it for the patent', as it were - but rather because they love or need to create. I think we, as a society, indeed as humanity, would benefit from a system which is more encouraging of this joyful creative sentiment, rather than the purely economic incentives that currently dominate thinking in the IP field.
I feel pretty comfortable characterizing this line of thought as utopian.
Embedded in this statement is the assumption that someone should own the right to make electric cars. It's a car that runs on electricity! There's no innovation just in that concept. Why should the government help someone get paid for people using that concept?
Typically, something that's simply conceptual and elementary is not patented even under the Patent Office's standards. So it's essentially irrelevant to the discussion.
posted by Clyde Mnestra at 4:10 PM on August 4, 2011 [1 favorite]
I feel pretty comfortable characterizing this line of thought as utopian.
Embedded in this statement is the assumption that someone should own the right to make electric cars. It's a car that runs on electricity! There's no innovation just in that concept. Why should the government help someone get paid for people using that concept?
Typically, something that's simply conceptual and elementary is not patented even under the Patent Office's standards. So it's essentially irrelevant to the discussion.
posted by Clyde Mnestra at 4:10 PM on August 4, 2011 [1 favorite]
Typically, something that's simply conceptual and elementary is not patented even under the Patent Office's standards. So it's essentially irrelevant to the discussion.
That, too, is a utopian line of thought. I've read a few of the offending patents as a layperson, and they read like this:
Section 1: Broad, vague idea we want to patent that likely has prior art or is obvious and should not be granted
Sections 2-50: diagrams and obfuscatory text in order to meet minimum length requirements and make the simple idea seem complicated
posted by jsturgill at 4:15 PM on August 4, 2011 [1 favorite]
That, too, is a utopian line of thought. I've read a few of the offending patents as a layperson, and they read like this:
Section 1: Broad, vague idea we want to patent that likely has prior art or is obvious and should not be granted
Sections 2-50: diagrams and obfuscatory text in order to meet minimum length requirements and make the simple idea seem complicated
posted by jsturgill at 4:15 PM on August 4, 2011 [1 favorite]
Embedded in this statement is the assumption that someone should own the right to make electric cars. It's a car that runs on electricity! There's no innovation just in that concept. Why should the government help someone get paid for people using that concept?
Typically, something that's simply conceptual and elementary is not patented even under the Patent Office's standards. So it's essentially irrelevant to the discussion.
Well, that was directed to Ironmouth, who thought somebody would own the rights to making an electric car.
posted by benito.strauss at 4:27 PM on August 4, 2011
Typically, something that's simply conceptual and elementary is not patented even under the Patent Office's standards. So it's essentially irrelevant to the discussion.
Well, that was directed to Ironmouth, who thought somebody would own the rights to making an electric car.
posted by benito.strauss at 4:27 PM on August 4, 2011
"If people had understood how patents would be granted when most of today's ideas were invented, and had taken out patents, the industry would be at a complete standstill today.… The solution to this is patent exchanges with large companies and patenting as much as we can."
That's from Bill Gates, talking about how patents are detrimental to the software industry and probably would have prevented MS-DOS from arising.
The second part to this statement is just as important as the first part. The first sentence shows a high-level tech leader acknowledging that patents are bad for innovation. The second sentence points out the very real economic principle that is driving a lot of bad patents, the tragedy of the commons. Individual actors may be against patents, but in the current IP climate, they have no choice but to build up patent portfolios or they'll get sued.
posted by formless at 4:34 PM on August 4, 2011 [7 favorites]
That's from Bill Gates, talking about how patents are detrimental to the software industry and probably would have prevented MS-DOS from arising.
The second part to this statement is just as important as the first part. The first sentence shows a high-level tech leader acknowledging that patents are bad for innovation. The second sentence points out the very real economic principle that is driving a lot of bad patents, the tragedy of the commons. Individual actors may be against patents, but in the current IP climate, they have no choice but to build up patent portfolios or they'll get sued.
posted by formless at 4:34 PM on August 4, 2011 [7 favorites]
Its not like every Tom, Dick and Harriet has the capability to make electric cars.
No, but every Tom, Dick and Harriet has the ability to make software, one of America's greatest intellectual and cultural outputs. But when you have patent trolls going around threatening small developers, you soon get a situation where only large players are willing to enter the marketplace. And that's not good for anyone in the long run.
posted by formless at 4:37 PM on August 4, 2011 [1 favorite]
No, but every Tom, Dick and Harriet has the ability to make software, one of America's greatest intellectual and cultural outputs. But when you have patent trolls going around threatening small developers, you soon get a situation where only large players are willing to enter the marketplace. And that's not good for anyone in the long run.
posted by formless at 4:37 PM on August 4, 2011 [1 favorite]
Microsoft Responds To Google’s Response To Microsoft’s Response
posted by Blazecock Pileon at 5:03 PM on August 4, 2011 [1 favorite]
posted by Blazecock Pileon at 5:03 PM on August 4, 2011 [1 favorite]
Patents are part of article 2 of the constitution (along with copyrights). I think that it would require an ammendment to prohibit the granting of patents. Today's patent law is sme of the most intractable statute ever invented (perhaps second only to tax statute). The patent office in Washington is an amazing and enormous office complex run by thousands of civil servants.
Simplification is in order.
posted by Trout7000 at 5:09 PM on August 4, 2011
Simplification is in order.
posted by Trout7000 at 5:09 PM on August 4, 2011
No, but every Tom, Dick and Harriet has the ability to make software, one of America's greatest intellectual and cultural outputs. But when you have patent trolls going around threatening small developers, you soon get a situation where only large players are willing to enter the marketplace. And that's not good for anyone in the long run.
1. The issue isn't the ability to invent or create. It's proper incentives -- not too much, not too little.
2. Patent trolls are a problem. But if there's little protection, idea promotion becomes theft and marketing. Little guys don't exactly win there either.
Patents are part of article 2 of the constitution (along with copyrights). I think that it would require an ammendment to prohibit the granting of patents. Today's patent law is sme of the most intractable statute ever invented (perhaps second only to tax statute). The patent office in Washington is an amazing and enormous office complex run by thousands of civil servants.
Well, the Constitution gives Congress the right to regulate those subjects, but it doesn't say that patents or copyright have to exist. There would be limits to rolling back already existing rights, and the US has treaty obligations too.
The patent statute should arguably be more complex, so that different areas had more variance in terms, defenses, etc. And I think most people concerned about patent reform believe that more civil servants are necessary in order to facilitate more rigorous review of applications under any standard. Number of employees is not that correlated with complexity.
posted by Clyde Mnestra at 5:20 PM on August 4, 2011
1. The issue isn't the ability to invent or create. It's proper incentives -- not too much, not too little.
2. Patent trolls are a problem. But if there's little protection, idea promotion becomes theft and marketing. Little guys don't exactly win there either.
Patents are part of article 2 of the constitution (along with copyrights). I think that it would require an ammendment to prohibit the granting of patents. Today's patent law is sme of the most intractable statute ever invented (perhaps second only to tax statute). The patent office in Washington is an amazing and enormous office complex run by thousands of civil servants.
Well, the Constitution gives Congress the right to regulate those subjects, but it doesn't say that patents or copyright have to exist. There would be limits to rolling back already existing rights, and the US has treaty obligations too.
The patent statute should arguably be more complex, so that different areas had more variance in terms, defenses, etc. And I think most people concerned about patent reform believe that more civil servants are necessary in order to facilitate more rigorous review of applications under any standard. Number of employees is not that correlated with complexity.
posted by Clyde Mnestra at 5:20 PM on August 4, 2011
Keep the hate on Blazecock.. I don't work for them, but, hey, I'm a fan. Google has never filed an offensive patent lawsuit, despite having thousands of patents on many of the basic building blocks to the web.
Google ain't perfect, and I worry plenty about what it means to collect so much information in one parties hands and yada yada.. But, at least be fair about this. They have been consistently for a more open and liberal patent and IP world. Then again, lots of tech companies do this. Redhat, IBM, Sun Microsystems.
On the other side, there is Monsanto, Big-Pharma, Microsoft and Apple...
Google spent a cool 100mil for On2 video, and promptly released the entire IP protfolio under the most possible liberal license.
Google has been the defendant in plenty of patent suits, but are plaintiffs only in cases where they are counter suing.
They wanted the Nortel patents so they could keep Microsoft and Apple from using them offensively. Guess who bought the Nortel patents?
Man, those guys, certainly part of the problem.
posted by PissOnYourParade at 5:24 PM on August 4, 2011 [7 favorites]
Google ain't perfect, and I worry plenty about what it means to collect so much information in one parties hands and yada yada.. But, at least be fair about this. They have been consistently for a more open and liberal patent and IP world. Then again, lots of tech companies do this. Redhat, IBM, Sun Microsystems.
On the other side, there is Monsanto, Big-Pharma, Microsoft and Apple...
Google spent a cool 100mil for On2 video, and promptly released the entire IP protfolio under the most possible liberal license.
Google has been the defendant in plenty of patent suits, but are plaintiffs only in cases where they are counter suing.
They wanted the Nortel patents so they could keep Microsoft and Apple from using them offensively. Guess who bought the Nortel patents?
Man, those guys, certainly part of the problem.
posted by PissOnYourParade at 5:24 PM on August 4, 2011 [7 favorites]
Why don't they start by returning to one of the tenets of the original patent procedure? That is, you have to submit a working model of the subject of the patent.
posted by digsrus at 5:24 PM on August 4, 2011
posted by digsrus at 5:24 PM on August 4, 2011
I'm afraid that working models are rather trivial for trivial software patents.
You might suggest strengthening that requirement to a marketed product, i.e. use it or lose it. You might even make them pro-rate the patents value by some pre-declared fraction of the price of the marketed product, with laws against over declaring.
If you applied such a "mark-to-market" solution, you'd create some lax-law-esque situations of arguing over whether [small_company] was actually trying to market the product, but actually courts handle intentionality questions infinitely better than technical questions.
posted by jeffburdges at 6:00 PM on August 4, 2011
You might suggest strengthening that requirement to a marketed product, i.e. use it or lose it. You might even make them pro-rate the patents value by some pre-declared fraction of the price of the marketed product, with laws against over declaring.
If you applied such a "mark-to-market" solution, you'd create some lax-law-esque situations of arguing over whether [small_company] was actually trying to market the product, but actually courts handle intentionality questions infinitely better than technical questions.
posted by jeffburdges at 6:00 PM on August 4, 2011
In any case, if Google hates patents so much, they sure seem happy to be part of the problem.
It's like nuclear weapons. The way to be safest from military aggression in this world is to have some, even if you hate them. If someone starts shooting at Google, having a large patent pool means they can shoot back.
If they start using those patents aggressively, that's different, but it makes a great deal of sense to have a patent pool you can draw on for defensive purposes.
It would, of course, make even MORE sense to not allow software to be patentable, only copyrightable.
posted by Malor at 6:04 PM on August 4, 2011
It's like nuclear weapons. The way to be safest from military aggression in this world is to have some, even if you hate them. If someone starts shooting at Google, having a large patent pool means they can shoot back.
If they start using those patents aggressively, that's different, but it makes a great deal of sense to have a patent pool you can draw on for defensive purposes.
It would, of course, make even MORE sense to not allow software to be patentable, only copyrightable.
posted by Malor at 6:04 PM on August 4, 2011
Copyright should obviously never have applied to non-entertainment software for the same reasons copyright never applies to clothing designs, namely utilitarian items cannot be copyrighted.
Instead, we should've created a patent-copyright hybrid for software : You'd receive protection only for your implementation ala copyright, i.e. no broad patent-like protections. You'd be required to provide the full & compilable source code with the software, ala patent explanation & model requirements.
In short, no copyrights for closed source software, all closed source software would use trade secrets instead.
posted by jeffburdges at 6:05 PM on August 4, 2011
Instead, we should've created a patent-copyright hybrid for software : You'd receive protection only for your implementation ala copyright, i.e. no broad patent-like protections. You'd be required to provide the full & compilable source code with the software, ala patent explanation & model requirements.
In short, no copyrights for closed source software, all closed source software would use trade secrets instead.
posted by jeffburdges at 6:05 PM on August 4, 2011
Code is the same in this respect. The idea/process is either too short, simple, and clear to be protected, or it is so complicated that every single group that attempts to implement it will do so in a unique way. Any overlap is clear sign of plaigerism.
That's like arguing that your cover version of a Rolling Stones song shouldn't be subject to copyright because you used different guitars and microphones and the waveform peaks don't match up exactly. Everyone would be dissassembling, obfuscating and republishing like mad.
The problems with your argument are that it completely ignores existing jurisprudence on copyright - which is rather more flexible than you appreciate - and then proceeds on the assumption that the inevitable bitterly-fought test cases would not impose any burden of their own.
posted by anigbrowl at 6:16 PM on August 4, 2011
That's like arguing that your cover version of a Rolling Stones song shouldn't be subject to copyright because you used different guitars and microphones and the waveform peaks don't match up exactly. Everyone would be dissassembling, obfuscating and republishing like mad.
The problems with your argument are that it completely ignores existing jurisprudence on copyright - which is rather more flexible than you appreciate - and then proceeds on the assumption that the inevitable bitterly-fought test cases would not impose any burden of their own.
posted by anigbrowl at 6:16 PM on August 4, 2011
There is a very simple formula at play.
IP is property. Wealthy agents leverage property to increase their wealth. Wealthy agents have more influence with policy makers.
Thus, we see still another way that money in politics impacts our nation. None of the current abuses in health care, finance, technology, transportation, energy and environmental policies, etc. etc. will subside until we get private money out of politics. Is that possible? I'm not so sure.
Welcome to the new feudal age.
posted by Vibrissae at 6:22 PM on August 4, 2011
IP is property. Wealthy agents leverage property to increase their wealth. Wealthy agents have more influence with policy makers.
Thus, we see still another way that money in politics impacts our nation. None of the current abuses in health care, finance, technology, transportation, energy and environmental policies, etc. etc. will subside until we get private money out of politics. Is that possible? I'm not so sure.
Welcome to the new feudal age.
posted by Vibrissae at 6:22 PM on August 4, 2011
They wanted the Nortel patents so they could keep Microsoft and Apple from using them offensively.
You are so full of shit that your are either that dumb or you are deliberately trolling for Google.
1) Google was one of the primary market evaluators of this patents, and valued them at 1.0 Billion. They then, in a "clever geek" way, bid 3.14 billion. Problem? Microsoft and Apple didn't believe them, and bid 4.5 billion.
2) Google was specifically invited to join MS and Apple in this bid. They refused, because they wanted to patents alone....
3) ...to help prevent Apple form nailing them not only for multiple patent violations, but from multiple Sherman Antitrust violations. See "giving away product supported by other parts of the business to destroy competition.
3) The problem is that Google assumed that Apple and Microsoft were also run by college kids who got lucky, not veterans from the lawsuit wars.
Now, they're desperate to try to get some sort of public wave on their side, because they tried to fuck Apple and Microsoft hard, found out that they were out of their league, and if they can't find a redoubt to hide in, they are going to be seriously fucked.
To which I say "Suck it, hater."
posted by eriko at 6:23 PM on August 4, 2011 [5 favorites]
You are so full of shit that your are either that dumb or you are deliberately trolling for Google.
1) Google was one of the primary market evaluators of this patents, and valued them at 1.0 Billion. They then, in a "clever geek" way, bid 3.14 billion. Problem? Microsoft and Apple didn't believe them, and bid 4.5 billion.
2) Google was specifically invited to join MS and Apple in this bid. They refused, because they wanted to patents alone....
3) ...to help prevent Apple form nailing them not only for multiple patent violations, but from multiple Sherman Antitrust violations. See "giving away product supported by other parts of the business to destroy competition.
3) The problem is that Google assumed that Apple and Microsoft were also run by college kids who got lucky, not veterans from the lawsuit wars.
Now, they're desperate to try to get some sort of public wave on their side, because they tried to fuck Apple and Microsoft hard, found out that they were out of their league, and if they can't find a redoubt to hide in, they are going to be seriously fucked.
To which I say "Suck it, hater."
posted by eriko at 6:23 PM on August 4, 2011 [5 favorites]
You might suggest strengthening that requirement to a marketed product, i.e. use it or lose it.
Lots of countries have that (Turkey and India come to mind). It's called a "working requirement," and it's trivial to get around. Inevitably there have to be several broad exceptions: "we're still working the kinks out of the product the invention is a part of" or "we're collecting data for regulatory approval" or "we're waiting for regulatory approval" or "we're waiting for the right licensee / investor / distributing partner." A strict working requirement would make patents useless in many industries (e.g. pharma) and for startups of all kinds.
In short: working requirements are not new, they don't prevent any of the problems being discussed here, and they add yet another regulatory hassle for ordinary companies, which have to file working requirement documents on every patent they own every year or so.
They are, however, a great signal that someone who suggests them as a fix for the patent system has not actually thought very deeply about the problem or done much research into approaches that have been tried and found wanting. You see it suggested on Slashdot all the time, for example.
posted by jedicus at 6:55 PM on August 4, 2011 [1 favorite]
Lots of countries have that (Turkey and India come to mind). It's called a "working requirement," and it's trivial to get around. Inevitably there have to be several broad exceptions: "we're still working the kinks out of the product the invention is a part of" or "we're collecting data for regulatory approval" or "we're waiting for regulatory approval" or "we're waiting for the right licensee / investor / distributing partner." A strict working requirement would make patents useless in many industries (e.g. pharma) and for startups of all kinds.
In short: working requirements are not new, they don't prevent any of the problems being discussed here, and they add yet another regulatory hassle for ordinary companies, which have to file working requirement documents on every patent they own every year or so.
They are, however, a great signal that someone who suggests them as a fix for the patent system has not actually thought very deeply about the problem or done much research into approaches that have been tried and found wanting. You see it suggested on Slashdot all the time, for example.
posted by jedicus at 6:55 PM on August 4, 2011 [1 favorite]
I disagree Vibrissae. All societies exhibit Feudal tendencies by vertue of human nature. Yet, some societies succeed while others fail. It's all about knowing what abuses matter.
Intellectual property abuses cut straight into the heart of what makes modern western society successful. There will be future history professors who build careers showing that China obliterated the U.S. because they "put intellectual property in it's place", despite worse "personal" abuses.
Marx isn't wrong per se, but he isn't the whole story, any more than Ayn Rand. To answer your question : All is possible so long as we avoid "one world government", especially dumb intellectual property treaties.
posted by jeffburdges at 6:57 PM on August 4, 2011
Intellectual property abuses cut straight into the heart of what makes modern western society successful. There will be future history professors who build careers showing that China obliterated the U.S. because they "put intellectual property in it's place", despite worse "personal" abuses.
Marx isn't wrong per se, but he isn't the whole story, any more than Ayn Rand. To answer your question : All is possible so long as we avoid "one world government", especially dumb intellectual property treaties.
posted by jeffburdges at 6:57 PM on August 4, 2011
I disagree with this idea that Android's price is anti-compeditive too. As I view it, Android is free & openish to prevent Apple's evil dream of a walled garden monopoly/duopoly.
posted by jeffburdges at 7:07 PM on August 4, 2011
posted by jeffburdges at 7:07 PM on August 4, 2011
There will be future history professors who build careers showing that China obliterated the U.S. because they "put intellectual property in it's place", despite worse "personal" abuses.
The same China that is rapidly copying the United States' patent regime? Another example: four years ago China passed a law that largely mirrors the US Bayh-Dole Act, which allows universities to patent inventions arising from government-sponsored research. The Bayh-Dole Act is widely credited with leading to a large number of successful spinoffs in the US.
China is also in the process of reforming its copyright laws in a way that more strongly favors copyright holders.
posted by jedicus at 7:18 PM on August 4, 2011
The same China that is rapidly copying the United States' patent regime? Another example: four years ago China passed a law that largely mirrors the US Bayh-Dole Act, which allows universities to patent inventions arising from government-sponsored research. The Bayh-Dole Act is widely credited with leading to a large number of successful spinoffs in the US.
China is also in the process of reforming its copyright laws in a way that more strongly favors copyright holders.
posted by jedicus at 7:18 PM on August 4, 2011
There is one problem and that is there is not enough examiners. They average examining 2 patents per day.
Ugh. The problem isn't the examiners (well, not exclusively,) it's the fact that they spend half a day on each patent (and apparently don't have access to google to get the whole 'bleedin' obvious' thing down.)
The USPTO has made granting patents (not necessarily good patents) the priority, and left it to the courts to sort out. The courts, for their part, have decided that it's the USPTO's job to sort it out and largely treat granted patents as valid. So now everyone is applying for every obvious thing (and figuring out what obvious things aren't already covered is an art unto itself.) The result is a clusterfuck of half-assed patents (seriously, toast (or a "Bread Refreshing Method") is under patent protection, currently.)
This is going to bite the US in the ass. China is ramping up its patent portfolio, and they're even less careful than the US is. Since they have the actual jurisdiction on the manufacturers, don't expect them to rule for the US. (on preview, what jedicus said.)
posted by ChurchHatesTucker at 7:21 PM on August 4, 2011
Ugh. The problem isn't the examiners (well, not exclusively,) it's the fact that they spend half a day on each patent (and apparently don't have access to google to get the whole 'bleedin' obvious' thing down.)
The USPTO has made granting patents (not necessarily good patents) the priority, and left it to the courts to sort out. The courts, for their part, have decided that it's the USPTO's job to sort it out and largely treat granted patents as valid. So now everyone is applying for every obvious thing (and figuring out what obvious things aren't already covered is an art unto itself.) The result is a clusterfuck of half-assed patents (seriously, toast (or a "Bread Refreshing Method") is under patent protection, currently.)
This is going to bite the US in the ass. China is ramping up its patent portfolio, and they're even less careful than the US is. Since they have the actual jurisdiction on the manufacturers, don't expect them to rule for the US. (on preview, what jedicus said.)
posted by ChurchHatesTucker at 7:21 PM on August 4, 2011
And they'd might execute anyone who tried Steve jobs' or the MafiAA's shit. As I said, it's all about knowing what abuses matter.
posted by jeffburdges at 7:23 PM on August 4, 2011
posted by jeffburdges at 7:23 PM on August 4, 2011
There is a very simple formula at play. IP is property. Wealthy agents leverage property to increase their wealth. Wealthy agents have more influence with policy makers.
So, if I create something, it should automatically belong to everyone? No matter how much time or effort I may have spent on it, as soon as it becomes publicly visible it no longer belongs to me?
Welcome to the new feudal age.
I am so fucking tired of this stupid trope.
posted by anigbrowl at 7:25 PM on August 4, 2011 [2 favorites]
So, if I create something, it should automatically belong to everyone? No matter how much time or effort I may have spent on it, as soon as it becomes publicly visible it no longer belongs to me?
Welcome to the new feudal age.
I am so fucking tired of this stupid trope.
posted by anigbrowl at 7:25 PM on August 4, 2011 [2 favorites]
Trout7000: “The patent office in Washington is an amazing and enormous office complex run by thousands of civil servants. Simplification is in order.”
Actually, that's not the problem. The vast majority of the US Patent Office handles "utility" patents, and does it (more or less) well. The problem is that only 99 examiners out of these thousands actually work on design patents, which is far to few for the tens of thousands of software patents that are filed every year.
posted by koeselitz at 7:33 PM on August 4, 2011
Actually, that's not the problem. The vast majority of the US Patent Office handles "utility" patents, and does it (more or less) well. The problem is that only 99 examiners out of these thousands actually work on design patents, which is far to few for the tens of thousands of software patents that are filed every year.
posted by koeselitz at 7:33 PM on August 4, 2011
anigbrowl: “So, if I create something, it should automatically belong to everyone? No matter how much time or effort I may have spent on it, as soon as it becomes publicly visible it no longer belongs to me?”
Yes. Property is a noble lie – or, oftentimes, an ignoble one – and never more so than when it comes to ideas. When you share ideas, they cease to be yours. That is how ideas work.
posted by koeselitz at 7:35 PM on August 4, 2011 [1 favorite]
Yes. Property is a noble lie – or, oftentimes, an ignoble one – and never more so than when it comes to ideas. When you share ideas, they cease to be yours. That is how ideas work.
posted by koeselitz at 7:35 PM on August 4, 2011 [1 favorite]
The courts, for their part, have decided that it's the USPTO's job to sort it out and largely treat granted patents as valid
The courts are required by statute to presume that patents are valid. "A patent shall be presumed valid. ... The burden of establishing invalidity of a patent or any claim thereof shall rest on the party asserting such invalidity." 35 USC 282. There has been an effort (spearheaded by Microsoft) to reduce the strength of that presumption from "clear and convincing" (something like 60-70% proof required) to "preponderance of the evidence" (anything more than 50%). However, that effort failed.
The problem is that only 99 examiners out of these thousands actually work on design patents, which is far to few for the tens of thousands of software patents that are filed every year.
Almost all software-related patents are utility patents. Design patents cover the ornamental (i.e. non-functional) design of a thing and are rarely used for computer software.
posted by jedicus at 7:45 PM on August 4, 2011 [1 favorite]
The courts are required by statute to presume that patents are valid. "A patent shall be presumed valid. ... The burden of establishing invalidity of a patent or any claim thereof shall rest on the party asserting such invalidity." 35 USC 282. There has been an effort (spearheaded by Microsoft) to reduce the strength of that presumption from "clear and convincing" (something like 60-70% proof required) to "preponderance of the evidence" (anything more than 50%). However, that effort failed.
The problem is that only 99 examiners out of these thousands actually work on design patents, which is far to few for the tens of thousands of software patents that are filed every year.
Almost all software-related patents are utility patents. Design patents cover the ornamental (i.e. non-functional) design of a thing and are rarely used for computer software.
posted by jedicus at 7:45 PM on August 4, 2011 [1 favorite]
The result is a clusterfuck of half-assed patents (seriously, toast (or a "Bread Refreshing Method") is under patent protection, currently.)
'That's just terrible!' I said to myself, and set off to read the patent. 'Why, this just looks just like a deescription of how a toaster oven operates!' I said to myself. Then I finished reading it and realized it actually specified a completely different approach from that of a toaster oven, using temperatures of between 5 and 9 times hotter than those of a typical heating element, providing considerably more rapid heating with less loss of moisture. It is a toaster, but a distinctly novel sort of toaster.
To say that this is a patent on the idea of making toast is disingenuous and wrong. I do not love the patent system, but but it should be criticized on on its actual flaws.
posted by anigbrowl at 7:46 PM on August 4, 2011 [3 favorites]
'That's just terrible!' I said to myself, and set off to read the patent. 'Why, this just looks just like a deescription of how a toaster oven operates!' I said to myself. Then I finished reading it and realized it actually specified a completely different approach from that of a toaster oven, using temperatures of between 5 and 9 times hotter than those of a typical heating element, providing considerably more rapid heating with less loss of moisture. It is a toaster, but a distinctly novel sort of toaster.
To say that this is a patent on the idea of making toast is disingenuous and wrong. I do not love the patent system, but but it should be criticized on on its actual flaws.
posted by anigbrowl at 7:46 PM on August 4, 2011 [3 favorites]
To better understand our patent system via a RPG combat analogy:
Money is hit points, patents are mana, and your Player's Handbook is How To Talk To An East Texas Jury.
posted by RobotVoodooPower at 7:49 PM on August 4, 2011 [3 favorites]
Money is hit points, patents are mana, and your Player's Handbook is How To Talk To An East Texas Jury.
posted by RobotVoodooPower at 7:49 PM on August 4, 2011 [3 favorites]
Yes. Property is a noble lie – or, oftentimes, an ignoble one – and never more so than when it comes to ideas. When you share ideas, they cease to be yours. That is how ideas work.
So basically you're saying that authors and inventors shouldn't have any mechanism to ensure they'll be compensated for their work? I'm skeptical.
posted by anigbrowl at 7:55 PM on August 4, 2011
So basically you're saying that authors and inventors shouldn't have any mechanism to ensure they'll be compensated for their work? I'm skeptical.
posted by anigbrowl at 7:55 PM on August 4, 2011
anigbrowl: “So basically you're saying that authors and inventors shouldn't have any mechanism to ensure they'll be compensated for their work? I'm skeptical.”
Property rights are a woefully inadequate mechanism for compensation of authors and inventors. It's so unworkable as to be completely irrational at this point. Authors and inventors are hardly ever actually compensated under patent law, and squatters and patent trolls make huge amounts of money.
I believe authors and inventors are important for society, and I believe society should try to make a way to help them live. But property rights utterly fail to do this.
posted by koeselitz at 8:32 PM on August 4, 2011
Property rights are a woefully inadequate mechanism for compensation of authors and inventors. It's so unworkable as to be completely irrational at this point. Authors and inventors are hardly ever actually compensated under patent law, and squatters and patent trolls make huge amounts of money.
I believe authors and inventors are important for society, and I believe society should try to make a way to help them live. But property rights utterly fail to do this.
posted by koeselitz at 8:32 PM on August 4, 2011
Assigning or licensing your rights in a creative is in fact a remarkably effective mechanism for getting paid. It's not foolproof by any means, but I'd like to see the proposed alternatives before abolition of the system that we have in place now.
I think there are a number of quite useful proposals in that FTC report, but I guess that was more than anyone felt like browsing.
posted by anigbrowl at 8:45 PM on August 4, 2011
I think there are a number of quite useful proposals in that FTC report, but I guess that was more than anyone felt like browsing.
posted by anigbrowl at 8:45 PM on August 4, 2011
Just a little historical note and a book recommendation.
Isambard Kingdom Brunel was very critical of the patent laws in Britain. His biography is available on Google books, and you can read about his views on the evils of patent law in this section. (Evil is a word he uses in the text too.)
I would also recommend the book Piracy - The Intellectual Property Wars from Gutenberg to Gates for anyone interested in the history of copyright and patent law. It's where I learned about Brunel's opposition to patents among many other things.
posted by tykky at 11:13 PM on August 4, 2011
Isambard Kingdom Brunel was very critical of the patent laws in Britain. His biography is available on Google books, and you can read about his views on the evils of patent law in this section. (Evil is a word he uses in the text too.)
I would also recommend the book Piracy - The Intellectual Property Wars from Gutenberg to Gates for anyone interested in the history of copyright and patent law. It's where I learned about Brunel's opposition to patents among many other things.
posted by tykky at 11:13 PM on August 4, 2011
Typically, something that's simply conceptual and elementary is not patented even under the Patent Office's standards. So it's essentially irrelevant to the discussion.
That, too, is a utopian line of thought. I've read a few of the offending patents as a layperson, and they read like this:
Section 1: Broad, vague idea we want to patent that likely has prior art or is obvious and should not be granted
Sections 2-50: diagrams and obfuscatory text in order to meet minimum length requirements and make the simple idea seem complicated
This, indeed, shows that you have read them as a layperson. What you call "Section 1" is presumably the abstract. It's necessarily short and lacking specifics because it has a maximum length. It's there purely for information and has no legal relevance whatsoever. Then, the description and diagrams tend to be on the lengthy side because one of the legal requirements is "enablement": the invention must be sufficiently disclosed to enable the skilled person to carry out the invention. They are however an often less-than-straightforward read because the drafter must make a complete description without introducing language that could be used to limit the scope of the patent. Scope that is basically defined by a section at the very end of the patent, called the "claims". If you haven't read the claims, you just don't know what the patent actually protects.
I'm sad and tired of reading "GRAR patents" on the internet by people who very obviously have only read the (necessarily noncommittal) title or at most the abstract of the patent they are criticizing.
posted by Skeptic at 11:17 PM on August 4, 2011 [5 favorites]
That, too, is a utopian line of thought. I've read a few of the offending patents as a layperson, and they read like this:
Section 1: Broad, vague idea we want to patent that likely has prior art or is obvious and should not be granted
Sections 2-50: diagrams and obfuscatory text in order to meet minimum length requirements and make the simple idea seem complicated
This, indeed, shows that you have read them as a layperson. What you call "Section 1" is presumably the abstract. It's necessarily short and lacking specifics because it has a maximum length. It's there purely for information and has no legal relevance whatsoever. Then, the description and diagrams tend to be on the lengthy side because one of the legal requirements is "enablement": the invention must be sufficiently disclosed to enable the skilled person to carry out the invention. They are however an often less-than-straightforward read because the drafter must make a complete description without introducing language that could be used to limit the scope of the patent. Scope that is basically defined by a section at the very end of the patent, called the "claims". If you haven't read the claims, you just don't know what the patent actually protects.
I'm sad and tired of reading "GRAR patents" on the internet by people who very obviously have only read the (necessarily noncommittal) title or at most the abstract of the patent they are criticizing.
posted by Skeptic at 11:17 PM on August 4, 2011 [5 favorites]
The result is a clusterfuck of half-assed patents (seriously, toast (or a "Bread Refreshing Method") is under patent protection, currently.)
Like anigbrowl I had a look at the patent. Claim 1 says that the bread is toasted at a temperature between 2500F and 4500F. I have no idea whether this has been thought of before, but this certainly does not look trivial to me. Like anigbrowl says, it is certainly different from your usual bread toasting method and cannot be accomplished with a regular toaster.
But this is a very common phenomenon: The laymen will look at a patent and just read the title ("Bread Toasting Method" or whatever) without bothering to look at the claims and then get all huffed up about how big corporations are trying to patent what has been long known already. The same thing also happens all the time when, say, Monsanto tries to patent a new strain of basmati rice, and Greenpeace etc. get all upset (basmati rice has been known for 4000 years!) when what they really apply for is a new strain specified down to the last shred of DNA. There are all sorts of problems with firms like Monsanto and the patent system in general, but this uninformed noise by people who don't know how to read a patent is, well, just noise that gets in the way of a useful discussion.
My personal theory is that even the simplest patent claims are too complex to be "newsified" into two-second soundbites, so the sensational ("They tried to patent the toaster! Again!") beats out any substance.
posted by sour cream at 12:03 AM on August 5, 2011
Like anigbrowl I had a look at the patent. Claim 1 says that the bread is toasted at a temperature between 2500F and 4500F. I have no idea whether this has been thought of before, but this certainly does not look trivial to me. Like anigbrowl says, it is certainly different from your usual bread toasting method and cannot be accomplished with a regular toaster.
But this is a very common phenomenon: The laymen will look at a patent and just read the title ("Bread Toasting Method" or whatever) without bothering to look at the claims and then get all huffed up about how big corporations are trying to patent what has been long known already. The same thing also happens all the time when, say, Monsanto tries to patent a new strain of basmati rice, and Greenpeace etc. get all upset (basmati rice has been known for 4000 years!) when what they really apply for is a new strain specified down to the last shred of DNA. There are all sorts of problems with firms like Monsanto and the patent system in general, but this uninformed noise by people who don't know how to read a patent is, well, just noise that gets in the way of a useful discussion.
My personal theory is that even the simplest patent claims are too complex to be "newsified" into two-second soundbites, so the sensational ("They tried to patent the toaster! Again!") beats out any substance.
posted by sour cream at 12:03 AM on August 5, 2011
sour cream writes "Claim 1 says that the bread is toasted at a temperature between 2500F and 4500F. I have no idea whether this has been thought of before, but this certainly does not look trivial to me."
It makes decent toast, at least when you apply the heat with an oxy-propane or oxy-acetylene torch. I'm not sure however whether that application would invalidate their claim. Using the high temperature from a torch to toast bread goes back at least 30 years 'cause that's how long I've been doing it. Even odds there is even Hollywood movie footage of it.
posted by Mitheral at 12:33 AM on August 5, 2011
It makes decent toast, at least when you apply the heat with an oxy-propane or oxy-acetylene torch. I'm not sure however whether that application would invalidate their claim. Using the high temperature from a torch to toast bread goes back at least 30 years 'cause that's how long I've been doing it. Even odds there is even Hollywood movie footage of it.
posted by Mitheral at 12:33 AM on August 5, 2011
Well claim 1 of the patent requires an oven and a heating element that produces the heat, so, no, applying heat via a torch would not anticipate the claim, not would it infringe on the claimed invention.
posted by gyc at 12:43 AM on August 5, 2011
posted by gyc at 12:43 AM on August 5, 2011
The reason people are all het up about the obviousness of patents is that occasionally someone like Amazon will patent "buying something with one click". And it really covers that entire concept wholly and completely.
Or Intellectual Ventures with their "tell your customers about other products you make" patent that is
really being litigated like that.
I'd actually really like it if you guys would take a look at these patents and tell us how they are innovations, non-obvious, and important to grant because otherwise there would have been no incentive to invent them. (one-click patent is 5960411, don't know which one the IV is asserting).
posted by breath at 1:33 AM on August 5, 2011
Or Intellectual Ventures with their "tell your customers about other products you make" patent that is
really being litigated like that.
I'd actually really like it if you guys would take a look at these patents and tell us how they are innovations, non-obvious, and important to grant because otherwise there would have been no incentive to invent them. (one-click patent is 5960411, don't know which one the IV is asserting).
posted by breath at 1:33 AM on August 5, 2011
The reason people are all het up about the obviousness of patents is that occasionally someone like Amazon will patent "buying something with one click". And it really covers that entire concept wholly and completely.
You are proving my point here. Copied below is claim 1 of the patent you cited. I am counting at least 6 or 7 steps. So no, it does not cover the concept of "buying something with one click" wholly and completely, but only the specific method involving a client system, a server system, retrieving additional information etc. etc. It may or may not be obvious over the prior art, I certainly don't want to make a judgment on that, but what you say ("covers the entire concept...") is simply wrong and just demonstrates your lack of understanding of how claims work.
1. A method of placing an order for an item comprising:
under control of a client system,
displaying information identifying the item; and
in response to only a single action being performed, sending a request to order the item along with an identifier of a purchaser of the item to a server system;
under control of a single-action ordering component of the server system,
receiving the request;
retrieving additional information previously stored for the purchaser identified by the identifier in the received request; and
generating an order to purchase the requested item for the purchaser identified by the identifier in the received request using the retrieved additional information; and
fulfilling the generated order to complete purchase of the item
whereby the item is ordered without using a shopping cart ordering model.
posted by sour cream at 1:54 AM on August 5, 2011
You are proving my point here. Copied below is claim 1 of the patent you cited. I am counting at least 6 or 7 steps. So no, it does not cover the concept of "buying something with one click" wholly and completely, but only the specific method involving a client system, a server system, retrieving additional information etc. etc. It may or may not be obvious over the prior art, I certainly don't want to make a judgment on that, but what you say ("covers the entire concept...") is simply wrong and just demonstrates your lack of understanding of how claims work.
1. A method of placing an order for an item comprising:
under control of a client system,
displaying information identifying the item; and
in response to only a single action being performed, sending a request to order the item along with an identifier of a purchaser of the item to a server system;
under control of a single-action ordering component of the server system,
receiving the request;
retrieving additional information previously stored for the purchaser identified by the identifier in the received request; and
generating an order to purchase the requested item for the purchaser identified by the identifier in the received request using the retrieved additional information; and
fulfilling the generated order to complete purchase of the item
whereby the item is ordered without using a shopping cart ordering model.
posted by sour cream at 1:54 AM on August 5, 2011
breath Yes, there are patents granted that are manifestly invalid. Considering that the USPTO grants about 220,000 utility patents yearly (out of about twice as many patent applications it receives), just a 1% error rate would result in 2,200 crap patents issued, per year. With a 20-year lifespan, this can result in 50,000 crap patents in force at any given moment.
The crux of patent reform lies in making it easier for third parties to challenge the validity of a crap patent, without turning it into a tool for infringers with deep pockets to put additional legal obstacles in the way of the enforcement of actually valid patents.
This said, patent validity is not really relevant to the business model of actual patent trolls. Even whether the patent actually relates at all to the business of the parties they extort is unimportant. Patent trollery hinges on the fact that it is actually cheaper for the alleged infringers to pay the licence fee to the troll than to actually dispute anything in court. This is why pure patent trollery is almost a US-only phenomenon, because in the US litigation costs are one order of magnitude higher than in the next most expensive jurisdiction, and "loser pays" sanctions are uncommon. However, the courts appear to be getting on the act...
posted by Skeptic at 2:15 AM on August 5, 2011 [3 favorites]
The crux of patent reform lies in making it easier for third parties to challenge the validity of a crap patent, without turning it into a tool for infringers with deep pockets to put additional legal obstacles in the way of the enforcement of actually valid patents.
This said, patent validity is not really relevant to the business model of actual patent trolls. Even whether the patent actually relates at all to the business of the parties they extort is unimportant. Patent trollery hinges on the fact that it is actually cheaper for the alleged infringers to pay the licence fee to the troll than to actually dispute anything in court. This is why pure patent trollery is almost a US-only phenomenon, because in the US litigation costs are one order of magnitude higher than in the next most expensive jurisdiction, and "loser pays" sanctions are uncommon. However, the courts appear to be getting on the act...
posted by Skeptic at 2:15 AM on August 5, 2011 [3 favorites]
anigbrowl : That's like arguing that your cover version of a Rolling Stones song shouldn't be subject to copyright because you used different guitars and microphones and the waveform peaks don't match up exactly. Everyone would be dissassembling, obfuscating and republishing like mad.
Sorry, but no, that really doesn't make a good analogy. "replace instrument X with instrument Y", does not reflect the countless different ways you could write the same program. The musical analogy reflects a stylistic choice - Play the same notes on a banjo that the original played on a guitar, and you have the same song with a different feel. The most direct comparison, switching languages, still requires a near-complete rewrite, not merely "play the same notes". You may as well call brain surgery the same as removing a mole, just on a different organ.
And best if all, with software, you can get the "waveform peaks" match up exactly while still having a billion different underlying implementations.
The problems with your argument are that it completely ignores existing jurisprudence on copyright - which is rather more flexible than you appreciate - and then proceeds on the assumption that the inevitable bitterly-fought test cases would not impose any burden of their own.
Geeks get touchy about IP law because, despite all this hypothetical flexibility, we find it used against us far too often, even for entirely original creative works. When your rules can't appreciate the difference between making an omlette vs making a souffle, your rules need repair.
posted by pla at 3:51 AM on August 5, 2011 [1 favorite]
Sorry, but no, that really doesn't make a good analogy. "replace instrument X with instrument Y", does not reflect the countless different ways you could write the same program. The musical analogy reflects a stylistic choice - Play the same notes on a banjo that the original played on a guitar, and you have the same song with a different feel. The most direct comparison, switching languages, still requires a near-complete rewrite, not merely "play the same notes". You may as well call brain surgery the same as removing a mole, just on a different organ.
And best if all, with software, you can get the "waveform peaks" match up exactly while still having a billion different underlying implementations.
The problems with your argument are that it completely ignores existing jurisprudence on copyright - which is rather more flexible than you appreciate - and then proceeds on the assumption that the inevitable bitterly-fought test cases would not impose any burden of their own.
Geeks get touchy about IP law because, despite all this hypothetical flexibility, we find it used against us far too often, even for entirely original creative works. When your rules can't appreciate the difference between making an omlette vs making a souffle, your rules need repair.
posted by pla at 3:51 AM on August 5, 2011 [1 favorite]
eriko: You are so full of shit that your are either that dumb or you are deliberately trolling for Google.
2) Google was specifically invited to join MS and Apple in this bid. They refused, because they wanted to patents alone...."
Google wanted the patents as a defence against being sued (which is what all large tech companies are doing). If they buy them in conjunction with Microsoft (Apple never made this offer, only Microsoft) then they aren't a useful defence against being sued by Microsoft. This isn't rocket science.
posted by markr at 3:55 AM on August 5, 2011 [1 favorite]
2) Google was specifically invited to join MS and Apple in this bid. They refused, because they wanted to patents alone...."
Google wanted the patents as a defence against being sued (which is what all large tech companies are doing). If they buy them in conjunction with Microsoft (Apple never made this offer, only Microsoft) then they aren't a useful defence against being sued by Microsoft. This isn't rocket science.
posted by markr at 3:55 AM on August 5, 2011 [1 favorite]
sour cream, maybe you could explain further? To a layperson's eyes, the additional text of the one-click patent you've added there sure looks merely like complicated language to indicate: 1) customer, using their own computer, looks at product info on a webpage, 2) customer clicks a button. 2) computer system looks up customer's previously stored payment info in the database and then 3) initiates the purchase.
I'm not seeing anything in that text that describes anything meaningfully more specific than this.
posted by nobody at 4:22 AM on August 5, 2011 [1 favorite]
I'm not seeing anything in that text that describes anything meaningfully more specific than this.
posted by nobody at 4:22 AM on August 5, 2011 [1 favorite]
nobody: I was responding to a post that claimed that the Amazon patent monopolizes the "concept of buying something with one click wholly and completely." I merely pointed out that that is not true, because, as you correctly explain, it involves a lot more specifics, such as a host server, a client, accessing payment information etc. etc.
Of course, you may argue that all these additional specifics are really obvious or trivial, and that a patent shouldn't have been granted, but that is a different issue. All I was trying to point out is that it is incorrect to claim that the Amazon patent monopolizes all aspects of the "concept of buying something with one click wholly and completely." For example, off the top of my head, a solution where the info on the purchaser is stored on the client side, or the purchase order is generated on the client side, would seem to be outside the scope of the claim but still squarely inside the concept of "one-click purchasing". So, can we agree that the "concept of buying something with one click" is much broader than all the specifics laid down in that patent? Because if we can't, then there is really not much point in arguing further.
Also, there is no statute that says that a patent cannot be granted because it is "too broad" (what does that mean anyway?) Rather, the standard is that it needs to be non-obvious over the prior art. So in case of the Amazon patent, you would need to show that similar solutions were known at the time of filing. And if you can't show that, well, maybe then the idea wasn't so obvious after all.
posted by sour cream at 6:11 AM on August 5, 2011 [1 favorite]
Of course, you may argue that all these additional specifics are really obvious or trivial, and that a patent shouldn't have been granted, but that is a different issue. All I was trying to point out is that it is incorrect to claim that the Amazon patent monopolizes all aspects of the "concept of buying something with one click wholly and completely." For example, off the top of my head, a solution where the info on the purchaser is stored on the client side, or the purchase order is generated on the client side, would seem to be outside the scope of the claim but still squarely inside the concept of "one-click purchasing". So, can we agree that the "concept of buying something with one click" is much broader than all the specifics laid down in that patent? Because if we can't, then there is really not much point in arguing further.
Also, there is no statute that says that a patent cannot be granted because it is "too broad" (what does that mean anyway?) Rather, the standard is that it needs to be non-obvious over the prior art. So in case of the Amazon patent, you would need to show that similar solutions were known at the time of filing. And if you can't show that, well, maybe then the idea wasn't so obvious after all.
posted by sour cream at 6:11 AM on August 5, 2011 [1 favorite]
Whenever I see all these arguments and debates about high profile patent cases with people throwing around examples like Amazon's one-click purchase patent, I feel like its an entirely different world than I live in. Most of the patents that I see in the office are things like MICROVALVE DEVICE WITH PILOT OPERATED SPOOL VALVE AND PILOT MICROVALVE.
posted by charred husk at 7:31 AM on August 5, 2011
posted by charred husk at 7:31 AM on August 5, 2011
Ericko, call me when Google files offensive patent ligation. Until then actions have shown Apple to be the patent troll in this situation. (The mention of Apple being I'm sure what brings on the vitriol.)
But, let's address John Gruber's argument that it is morally justifiable to go after Android with patent litigation as it's fundamentally anti-competitive due to Google's market position. I'm scratching my head as to how Google could be anti-competitive by supporting Android with other parts of it's business, but Apple, near abouts the most valuable company on the planet is merely the poor inventor, trying to protect their unique snowflake. (Ehm, MobileMe, iTunes, desktop development workstations, etc)
Also, do you truly believe anyone at these companies still underestimates each other. They are all playing a larger game that we only see dispatches from. I won't pretend to know what Google's long term IP goals are.
However, this post is about patents and how aggressive infringement litagation is against the public good. In silicon valley, this practice used to be very rare. Companies would accumulate patents to keep the balance of the armistice.
Again, Google's action in the Nortel case (as well as their past litagation history) suggest a defensive stance. (Including the valuation and declining to be part of the MS bid). Both Apple and Microsoft have adopted a very offensive position. One that I believe harms the entire entrepreneurial ecosystem in this country. If that makes me a hater... well, hater gonna hate.
posted by PissOnYourParade at 8:21 AM on August 5, 2011 [1 favorite]
But, let's address John Gruber's argument that it is morally justifiable to go after Android with patent litigation as it's fundamentally anti-competitive due to Google's market position. I'm scratching my head as to how Google could be anti-competitive by supporting Android with other parts of it's business, but Apple, near abouts the most valuable company on the planet is merely the poor inventor, trying to protect their unique snowflake. (Ehm, MobileMe, iTunes, desktop development workstations, etc)
Also, do you truly believe anyone at these companies still underestimates each other. They are all playing a larger game that we only see dispatches from. I won't pretend to know what Google's long term IP goals are.
However, this post is about patents and how aggressive infringement litagation is against the public good. In silicon valley, this practice used to be very rare. Companies would accumulate patents to keep the balance of the armistice.
Again, Google's action in the Nortel case (as well as their past litagation history) suggest a defensive stance. (Including the valuation and declining to be part of the MS bid). Both Apple and Microsoft have adopted a very offensive position. One that I believe harms the entire entrepreneurial ecosystem in this country. If that makes me a hater... well, hater gonna hate.
posted by PissOnYourParade at 8:21 AM on August 5, 2011 [1 favorite]
And I don't think anyone's arguing that devices like those shouldn't be awarded patent protection, charred husk.
sour cream, I think I get the point you're making in general sense, that a look at the specifics usually reveals these screaming headlines as inaccurate, but for the one-click patent (and know that I haven't looked any further than the text you've quoted) the specifics really don't go very far to narrow the scope further from a colloquial sense of "go to product page on website; click one button; purchase is made." I guess this wouldn't cover a one-click purchase during which the customer is standing in the Amazon server room using their equipment directly (i.e., no client-side)? Great. Or if the credit card number were instead stored in a protected file on the user's machine, so it only works if the user is using the same computer each time? Ok.
In any case, I guess in a truly meaningful way their patent doesn't seem to cover a system in which there is a single purchase button (just like theirs) that simply makes a pop-up dialog show up asking to confirm the choice before passing it along to the server. So that's something.
I guess the depressing thing here -- in case you don't get the others' frustrations -- is that under current rules, it seems like almost anything involving new technology can be patented.
Like, wouldn't it be smart to take a look at all the current e-commerce and mobile internet practices and start filing patents for their equivalent functions for a future in which we all have implants that allow us to access the internet with thought alone? Let's assume someone else designs and patents the implant device. We're not interested in that. And there are already early prototypes for thought-controlled interfaces out there. But has anyone bothered patenting selling stuff to someone who's using such an interface? I mean, there's not going to be prior art yet because the technology isn't yet in the public's hands.
Likewise, if someone had been on the ball (or a little greedier, or a little more inventive in their greediness) isn't it possible that the entirety of e-commerce could have been patented? Or the entirely of TCP/IP? Or DNS? And doesn't that seem a little disgusting?
posted by nobody at 8:29 AM on August 5, 2011
sour cream, I think I get the point you're making in general sense, that a look at the specifics usually reveals these screaming headlines as inaccurate, but for the one-click patent (and know that I haven't looked any further than the text you've quoted) the specifics really don't go very far to narrow the scope further from a colloquial sense of "go to product page on website; click one button; purchase is made." I guess this wouldn't cover a one-click purchase during which the customer is standing in the Amazon server room using their equipment directly (i.e., no client-side)? Great. Or if the credit card number were instead stored in a protected file on the user's machine, so it only works if the user is using the same computer each time? Ok.
In any case, I guess in a truly meaningful way their patent doesn't seem to cover a system in which there is a single purchase button (just like theirs) that simply makes a pop-up dialog show up asking to confirm the choice before passing it along to the server. So that's something.
I guess the depressing thing here -- in case you don't get the others' frustrations -- is that under current rules, it seems like almost anything involving new technology can be patented.
Like, wouldn't it be smart to take a look at all the current e-commerce and mobile internet practices and start filing patents for their equivalent functions for a future in which we all have implants that allow us to access the internet with thought alone? Let's assume someone else designs and patents the implant device. We're not interested in that. And there are already early prototypes for thought-controlled interfaces out there. But has anyone bothered patenting selling stuff to someone who's using such an interface? I mean, there's not going to be prior art yet because the technology isn't yet in the public's hands.
Likewise, if someone had been on the ball (or a little greedier, or a little more inventive in their greediness) isn't it possible that the entirety of e-commerce could have been patented? Or the entirely of TCP/IP? Or DNS? And doesn't that seem a little disgusting?
posted by nobody at 8:29 AM on August 5, 2011
Perhaps the there/their auto verification prompt on which on to use in electronic input systems or analog to electronic input systems, or touch screen to electronic and analog systems, and thought input to electronic/analog and other input systems is patented and thus none of us can use such a feature because any company that implemented would get sued.
posted by juiceCake at 8:35 AM on August 5, 2011 [1 favorite]
posted by juiceCake at 8:35 AM on August 5, 2011 [1 favorite]
Oh! Sorry, juiceCake! The wit of your reply is now obscured to the ages due to some behind-the-scenes typo cleanup at just the wrong moment. I hope you accept this Favorite as a token of my apology.
posted by nobody at 8:42 AM on August 5, 2011
posted by nobody at 8:42 AM on August 5, 2011
Sorry, but no, that really doesn't make a good analogy. "replace instrument X with instrument Y", does not reflect the countless different ways you could write the same program.
I've been writing software since the 1980s, thanks. I don't agree with you about this and think your analogy is deeply flawed.
posted by anigbrowl at 9:07 AM on August 5, 2011
I've been writing software since the 1980s, thanks. I don't agree with you about this and think your analogy is deeply flawed.
posted by anigbrowl at 9:07 AM on August 5, 2011
My personal theory is that even the simplest patent claims are too complex to be "newsified" into two-second soundbites, so the sensational ("They tried to patent the toaster! Again!") beats out any substance.
sour cream, the legal standard is that the idea has to be non-obvious to a person skilled in the art, not to a member of the general public. And as others pointed out, obfuscating legalese and pseudo-technical jargon is not supposed to be part of the difficulty in understanding. (You are actually supposed to phrase the patent in language that is clear to said skilled person.)
That "substance" in software patents is usually a just a series of simultaneously too-specific, too-general, or irrelevant claims that surround the central claim like a defensive moat, so that if the central claim is ever defeated in court, the lawyers can fall back to the next position.
Personal experience: I'm one of the inventors on a patent from the 90s (only because my employer demanded it) which in essence claims the idea of choosing the advertisement with the highest expected revenue out of some pool of candidate ads to show. Which should have been smacked down as trying to patent basic rational behavior, or basic statistics. It probably would have been invalidated if a small company had tried to use it to defend its business against a big competitor with unlimited legal budget. But I recently found out that the turd is now owned by a large corporation and being used as part of a portfolio in a fight with another large corporation, clogging up the courts, and no doubt taking money away from actual innovation to pay the lawyers.
posted by mubba at 9:31 AM on August 5, 2011 [1 favorite]
sour cream, the legal standard is that the idea has to be non-obvious to a person skilled in the art, not to a member of the general public. And as others pointed out, obfuscating legalese and pseudo-technical jargon is not supposed to be part of the difficulty in understanding. (You are actually supposed to phrase the patent in language that is clear to said skilled person.)
That "substance" in software patents is usually a just a series of simultaneously too-specific, too-general, or irrelevant claims that surround the central claim like a defensive moat, so that if the central claim is ever defeated in court, the lawyers can fall back to the next position.
Personal experience: I'm one of the inventors on a patent from the 90s (only because my employer demanded it) which in essence claims the idea of choosing the advertisement with the highest expected revenue out of some pool of candidate ads to show. Which should have been smacked down as trying to patent basic rational behavior, or basic statistics. It probably would have been invalidated if a small company had tried to use it to defend its business against a big competitor with unlimited legal budget. But I recently found out that the turd is now owned by a large corporation and being used as part of a portfolio in a fight with another large corporation, clogging up the courts, and no doubt taking money away from actual innovation to pay the lawyers.
posted by mubba at 9:31 AM on August 5, 2011 [1 favorite]
I've filed for software patents on behalf of large companies. We knew what we had was at best a minor difference from existing techniques. So we stated what we wanted to cover in the early claims and then sat around playing a game of coming up with ways to make it seem more specific without actually being so. To use a flawed analogy it'd be like if we had a generic juicer and then sat around adding claims like "compatible with fruits that when purchased are round and have seeds", and "designed for fruit which is orange, yellow, and green colored and has a thick outer peel", and "contains a system for dealing with the fact that sometimes fruits are made of substances other than pure liquid that must be separated from them". Stuff that is inherently a part of the operation of any specific system that would want to accomplish the same task, but written as though it's a consequence of the specific design of our system. The explicitly-stated goal was to fool the examiner in order to later fool other companies. That's the software patent game as it stands today.
This was after Bilski, by the way. I did get the sense that that ruling noticeably reduced the chance of bullshit patents being filed. I wonder if the latest crop of foolishness is that companies are recognizing that their existing bullshit patents are the last, and are correspondingly rarer and more valuable.
posted by breath at 10:29 AM on August 5, 2011 [3 favorites]
This was after Bilski, by the way. I did get the sense that that ruling noticeably reduced the chance of bullshit patents being filed. I wonder if the latest crop of foolishness is that companies are recognizing that their existing bullshit patents are the last, and are correspondingly rarer and more valuable.
posted by breath at 10:29 AM on August 5, 2011 [3 favorites]
Oops that should be a singular patent I filed for on behalf of one large company. Got used to doing overbroadening, I guess!
posted by breath at 10:30 AM on August 5, 2011 [1 favorite]
posted by breath at 10:30 AM on August 5, 2011 [1 favorite]
Last year's lower court ruling in Myriad was a nonissue. It so totally ignored two decades of precedent and practice that the CAFC was bound to rule as it did. I will admit to being surprised that (a) the ruling wasn't unanimous, and (b) the Obama Administration filed an amicus brief in favor of upholding.
Opinions like eugenen's reflect a lack of appreciation for the amount of effort required to make the DNA patentable. It's not just purifying and isolating something that occurs in nature, it's also being able to demonstrate what that stretch of DNA does and why it's a useful thing to isolate.
Or, to put it snarkily: You've got the key to curing cancer, fighting infections, and treating diabetes and mental illness--just for starters--in every cell in your body. How dare you be all high and mighty about gene patenting while you selfishly do nothing with those genes but run your own meat sack!
posted by whuppy at 11:02 AM on August 5, 2011
Opinions like eugenen's reflect a lack of appreciation for the amount of effort required to make the DNA patentable. It's not just purifying and isolating something that occurs in nature, it's also being able to demonstrate what that stretch of DNA does and why it's a useful thing to isolate.
Or, to put it snarkily: You've got the key to curing cancer, fighting infections, and treating diabetes and mental illness--just for starters--in every cell in your body. How dare you be all high and mighty about gene patenting while you selfishly do nothing with those genes but run your own meat sack!
posted by whuppy at 11:02 AM on August 5, 2011
The practice of software patenting, OTOH, has become an abomination. I miss IBM's old-school approach of building up an unassailable portfolio which was only used defensively.
posted by whuppy at 11:05 AM on August 5, 2011
posted by whuppy at 11:05 AM on August 5, 2011
While Amazon's one-click patent has been the poster child for patent reform for years, Spotify is really the example that drives it home. The related patents both make claims on uttery basic architectural decisions - yes, by storing the data on the client, you could work around Amazon's patent. But then, uh, you're storing the data on the client.
Yes, I am claiming that Amazon's patent is obvious, but that's because based on nobody's description it *is* obvious. But that's based on 37 words of interpretation and not the actual patent, which is far, far longer and harder to read. But discussion on various merits and demerits of Amazon's patent has been done before.
Here's comes Spotify: an innovative company that, while not homegrown, provides a wanted service, at a reasonable price, which means *jobs* which is a platform that politicians can get behind. As far the patent system fostering new technology - not this time, not in the US anyway. If we want the US to keep at the forefront of technology and innovation, the patent system will have to be fixed or get left behind. Fixing the practice of software patenting will require more definition of what is and isn't patentable with a much finer line than the courts are wont to do.
posted by fragmede at 11:27 AM on August 5, 2011
Yes, I am claiming that Amazon's patent is obvious, but that's because based on nobody's description it *is* obvious. But that's based on 37 words of interpretation and not the actual patent, which is far, far longer and harder to read. But discussion on various merits and demerits of Amazon's patent has been done before.
Here's comes Spotify: an innovative company that, while not homegrown, provides a wanted service, at a reasonable price, which means *jobs* which is a platform that politicians can get behind. As far the patent system fostering new technology - not this time, not in the US anyway. If we want the US to keep at the forefront of technology and innovation, the patent system will have to be fixed or get left behind. Fixing the practice of software patenting will require more definition of what is and isn't patentable with a much finer line than the courts are wont to do.
posted by fragmede at 11:27 AM on August 5, 2011
When patent reform isn’t really about patent reform
posted by homunculus at 1:01 PM on August 5, 2011
posted by homunculus at 1:01 PM on August 5, 2011
anigbrowl : I've been writing software since the 1980s, thanks. I don't agree with you about this and think your analogy is deeply flawed.
So as coder with nearly 30 years experience, you'd call two superficially similar programs, one written in highly optimized assembler and the other written in a Visual Studio wizard with a whopping six lines of actual code, "infringingly" similar?
Sorry, but I find that difficult to believe.
posted by pla at 5:42 PM on August 5, 2011
So as coder with nearly 30 years experience, you'd call two superficially similar programs, one written in highly optimized assembler and the other written in a Visual Studio wizard with a whopping six lines of actual code, "infringingly" similar?
Sorry, but I find that difficult to believe.
posted by pla at 5:42 PM on August 5, 2011
I think a real clue that the current situation is flawed is the recent bidding around Nortel's patent portfolio. Ignoring who bought them and who didn't and all of that, you have a group of companies prepared to pay $4.5 billion for some patents, and not a single bidder was looking at those patents and going "Oh man, this one is a fricken' great idea, we need to buy that and develop the shit out of that product" all anyone was doing was buying them to either sue their competition, who have come up with the same thing and stuck it in a independently developed product, who to use as protection in case they are sued.
This idea that the little guy can develop an idea (in software and tech) and patent it and develop it is basically rubbish. If you tried to compete with the big kids they would hammer you with all of their patents, and your best outcome is that you licence your new patent to them for free in exchange for not being sued out of existence. They then beat you because they are bigger. Your only option is to turn patent troll, don't develop anything at all (because if you do you will be sure to infringe on someone else's patents) just sell the patent outright, or start suing people.
posted by markr at 7:37 PM on August 5, 2011 [2 favorites]
This idea that the little guy can develop an idea (in software and tech) and patent it and develop it is basically rubbish. If you tried to compete with the big kids they would hammer you with all of their patents, and your best outcome is that you licence your new patent to them for free in exchange for not being sued out of existence. They then beat you because they are bigger. Your only option is to turn patent troll, don't develop anything at all (because if you do you will be sure to infringe on someone else's patents) just sell the patent outright, or start suing people.
posted by markr at 7:37 PM on August 5, 2011 [2 favorites]
Ignoring who bought them and who didn't and all of that, you have a group of companies prepared to pay $4.5 billion for some patents, and not a single bidder was looking at those patents and going "Oh man, this one is a fricken' great idea, we need to buy that and develop the shit out of that product"
In many cases Nortel (and its licensees) had already developed those ideas into products. That's sort of the point: those patents cover many of the technologies now in use in wireless communications.
One of the purposes of a patent sale like this is that it allows Nortel's investors to recoup part of their investment. Nortel went bankrupt, and a lot of its value was tied up in intellectual property rights. The ability to liquidate those assets in bankruptcy encourages investment in companies that rely on IP rights
posted by jedicus at 7:49 PM on August 5, 2011
In many cases Nortel (and its licensees) had already developed those ideas into products. That's sort of the point: those patents cover many of the technologies now in use in wireless communications.
One of the purposes of a patent sale like this is that it allows Nortel's investors to recoup part of their investment. Nortel went bankrupt, and a lot of its value was tied up in intellectual property rights. The ability to liquidate those assets in bankruptcy encourages investment in companies that rely on IP rights
posted by jedicus at 7:49 PM on August 5, 2011
Oracle and Google keep wrangling over potentially impactful Lindholm draft email
It's certainly remarkable that those two emails show a consistent attitude: the Android team basically says "let's just infringe" whenever an intellectual property issue comes up. If [Google] did this to Oracle, what about the intellectual property of other companies like Apple, Microsoft, eBay and Skyhook?
posted by Blazecock Pileon at 10:29 PM on August 6, 2011
It's certainly remarkable that those two emails show a consistent attitude: the Android team basically says "let's just infringe" whenever an intellectual property issue comes up. If [Google] did this to Oracle, what about the intellectual property of other companies like Apple, Microsoft, eBay and Skyhook?
posted by Blazecock Pileon at 10:29 PM on August 6, 2011
Sale of Samsung Galaxy Tab Blocked in the EU
Apple has really grown exceedingly evil of late, talk about sore losers, but apparently this injunction is design-related, not software patents.
posted by jeffburdges at 1:14 PM on August 9, 2011
Apple has really grown exceedingly evil of late, talk about sore losers, but apparently this injunction is design-related, not software patents.
posted by jeffburdges at 1:14 PM on August 9, 2011
As anyone who has used a Galaxy Tab can attest, they are doing Europe a favor.
posted by entropicamericana at 1:25 PM on August 9, 2011 [1 favorite]
posted by entropicamericana at 1:25 PM on August 9, 2011 [1 favorite]
I've only seen the phone version, which kicks the shit out of any other phone I've seen, very fast. Are there problems with the tablet version?
What If Tim Berners-Lee Had Patented the Web?
posted by jeffburdges at 5:54 PM on August 12, 2011 [2 favorites]
What If Tim Berners-Lee Had Patented the Web?
posted by jeffburdges at 5:54 PM on August 12, 2011 [2 favorites]
Flawed Evidence In EU Apple vs. Samsung Case
As I understand it, these design-right cases take details like size and aspect ratio seriously, meaning Apple may've committed perjury.
posted by jeffburdges at 1:29 PM on August 15, 2011 [2 favorites]
As I understand it, these design-right cases take details like size and aspect ratio seriously, meaning Apple may've committed perjury.
posted by jeffburdges at 1:29 PM on August 15, 2011 [2 favorites]
Well Apple still likes Adobe for some things...
posted by the_artificer at 3:17 PM on August 15, 2011 [1 favorite]
posted by the_artificer at 3:17 PM on August 15, 2011 [1 favorite]
I'm sorry Dave, but I can't allow your patent suit to proceed.
Next up : Europe
posted by jeffburdges at 7:10 PM on August 23, 2011
Next up : Europe
posted by jeffburdges at 7:10 PM on August 23, 2011
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posted by Sys Rq at 2:36 PM on August 4, 2011 [3 favorites]