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December 4, 2005

Patent Ignorance Pending

The L.A. Times had, as one of its unsigned Sunday editorials, "Patent Sanity Pending". Let's pick apart the foolish presumptions therein.

"Too many patents are issued for "innovations" that are obvious, vague or already in wide use." - On what authority or statistical basis? This ignorant assertion is hoary, with no basis other than anecdotal evidence of patents occasionally being found invalid. More to the point, the editorial then complains how many patents apply to products nowadays. Could so many of those patents be worthless? How else do high-tech products keep improving other than by continual innovation meriting patent protection?!

"Too many patent holders try to extend their claims to devices and services that weren't even contemplated when the patents were granted." - This is pure ignorance of the nature of patent claims. 35 U.S.C. §101 states that patentable subject matter is "any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof...." A claimed method may be useful in a variety of devices, and a claimed device with novel functionality may take many forms.

"The appeals court in Washington takes the position that, except in exceptional circumstances, courts must issue permanent injunctions to stop infringers from using the inventions in dispute." -  The essential nature of patent law is to allow an inventor to prevent infringement. The only way to do so, in extreme cases where an infringer will not voluntarily cease infringement, is an injunction. There are always workarounds to patents. The reason infringement occurs is because the patented feature adds value to a product.

"As a consequence, someone who holds a patent over even a small piece of a product, service or business model could shut an entire operation down — a nice bit of leverage when it comes to negotiating a licensing fee... Firms in some high-tech fields must obtain licenses to "dozens, hundreds or even thousands of patents" to produce just one product." - As to the number of patents that may apply to a product, while this was written as a complaint in the editorial, it's a compliment to how innovative high-tech products are. As to licensing fee bargaining leverage, a predominant damage model for patent litigation is "reasonable royalty rate" of what an infringer may have paid without coercion, which is logically based on how valuable the patent is to the product's value. Avoiding infringement is simple - use a prior art feature. If, instead, the manufacturer thinks the patented feature is necessary for its product to be competitive in the market, take a license. That again is simply the nature of patents.

"Nor is it good policy to encourage the creation of companies whose purpose is not to develop new products and services but to shake down businesses that do." - Patent trolls again. Patent holding companies monetize patents, performing a valuable service to individuals or companies who otherwise could not profit from their inventions. Simple patent economics. The L.A. Times editorialist seemed placated that MercExchange at least once was in business as something other than a patent troll, but what difference does that make? The issue of patents is rewarding invention, not what business a patent holder has been or is in.

"Besides, the near-automatic granting of injunctions can lead to the absurd result of a company being forced to pay royalties to license patents later found to be invalid." - The editorial points to the NTP v. RIM case. Fact is, RIM had its chance to invalidate NTP's patents during litigation and failed. If the re-exam of NTP's patents does invalidate patents, it is nothing more than proof that RIM's attorneys weren't as competent as patent examiners. As to the timing of the re-exam, RIM chose that - they waited to initiate re-exam until after they had failed in court themselves. Typical. As to an injunction, in this case, RIM gets what it deserves. As presiding Judge Spencer observed, the patent office doesn't tell him his business, and he doesn't tell them theirs. And so, rightfully, on with the show.

Posted by Patent Hawk at December 4, 2005 2:34 PM | The Patent System

Comments

The LA Times editorial is spot on. A critique of your criticisms follows:

"Too many patents are issued for "innovations" that are obvious, vague or already in wide use." - On what authority or statistical basis? This ignorant assertion is hoary, with no basis other than anecdotal evidence of patents occasionally being found invalid.

A quick random walk through the USPTO's patent database will land any semi-sane person on a whole host of "obvious, vague or already in wide use" patents. It doesn't take a lawyer or prior-art-searcher-expert to figure this out. It is very, very plain. If you would like some pointers to lists of these, google shows many websites that will list "ridiculous patents." The rest of your arguments seem to stem from your unwillingness to accept this one fact, so I'll hammer on it a bit more: the founders of our country agreed to a patent system largely because it provided a defense against secrets being tied up for centuries in guilds. The patent contract was this: inventor tells *everyone* how they do a thing, and the government will grant a monopoly on that thing. From your previous writings, I gather that you are of the opinion that the non-lawyer type isn't smart enough to understand our patent system, BUT THE SYSTEM WAS INTENDED FOR THE NON-LAWYER TYPE. So either the system is broken because patents are granted improperly, as asserted by the editorial, or its broken because it is so wrought with complexity and ambiguity that only patent experts can understand it. Take your pick, but it is a tautology that the system is broken.


The reason infringement occurs is because the patented feature adds value to a product.

The reason infringement occurs is because "too many patents are issued for 'innovations' that are obvious, vague or already in wide use."


As to the number of patents that may apply to a product, while this was written as a complaint in the editorial, it's a compliment to how innovative high-tech products are.

Wrong. It is further evidence supporting the thesis statement in the editorial. Because so many patents are issued for obvious, vague, and already in use practices, almost EVERYTHING infringes some patent claim, and most products infringe many claims. This is especially true in software -- it is nearly impossible to write even a very, very simple program that does not infringe someone's patent, somewhere. Examples: BT's hyperlink patent, MS's number highlighting patents, MS/Adobe/Apple's numerous interface patents -- things like context menus, button layouts, MS's autocompletion patent, NTP's patent on sending email over wireless links, etc. I could go on and on.


The issue of patents is rewarding invention, not what business a patent holder has been or is in.

Wrong. The purpose of patents, as outlined by the constitution, is to "promote the useful arts and sciences." If patent trolls are hindering these instead (and I think its hard to make the case that they are doing anything but hindering), then their use of the patent system is unconstitutional.


Verious slams against RIM's lawyers

As has been pointed out elsewhere, re-exam is a one shot deal. If it fails, the bad patent sticks and there is no further recourse. It is common practice to use that as a last resort, especially when the chances of a court deciding against a patent are good. In the case of RIM, I can hardly blame them -- NTP's claims are the epitomy of "obvious, vague or already in wide use" patent abuse. The fact that the courts were powerless to see this is further damning evidence that the patent system is terribly broken.

Posted by: joey5 at December 5, 2005 8:01 AM

Don't like patent attorneys, do you ?

Well, they just do what their clients want them to do...

And guess who complains the most about broken patent system, to the point of trying to bribe US politicians into passing The Patent Act of 2005 (the big guy's request for a license to steal small guy's IP) ?

Yes, you are right, those same big technology pirates like MS, Intel, etc. And yet, at the same time they keep polluting patent database with thousands of junk patent applications, as if they have so many wonderful new inventions..
The end result of their patenting activity is that the patentability standards become extremely low... Inevitably some of those obvious junk patents end up in the hands of private individuals or patent holding firms and get enforced against big guys.
Sorry, big guys, patent system is the same for everybody, at least from legal perspective.
NTP's patent is just as good as RIM's patent, when it gets enforced in court.

Better stop your hypocrisy now.

You can't have your cake and eat it too.

Posted by: small guy at December 5, 2005 12:01 PM

Case in point: Method of Exercising a Cat (http://www.freepatentsonline.com/5443036.html)...


And a whole mess of other absurd patents can be found here:
http://www.freepatentsonline.com/crazy.html ...


Amazon 1-Click? Are you kidding?

Posted by: Scott C at December 5, 2005 4:00 PM

patent system is broken.

and broken ugly.

it works for deep pockets.

"file often, file often"

defend later in court with an army of lawyers.

Posted by: nobody special at December 5, 2005 4:12 PM

From your first paragraph: "How else do high-tech products keep improving other than by continual innovation meriting patent protection?!" Do I need to point out that this is begging the question?

And: "Patent Prospector". An interesting choice of title. They say our names for things reflect our attitudes towards them; do you believe that patents are like nuggets of gold, bounty provided by the earth to be found at random by lucky adventurers? I guess that in that case, what we're experiencing is a gold rush...

Posted by: David at December 5, 2005 5:13 PM

If the patent system is perfect as you claim, then explain this patent:

http://www.freepatentsonline.com/5443036.html

Posted by: rdean at December 5, 2005 5:20 PM

"How else do high-tech products keep improving other than by continual innovation meriting patent protection?!" Has the author ever worked on a high-tech product? If so, he should know that most "high-tech products" are just lots and lots of little obvious stuff put together with good attention to detail. Maybe a few decent ideas here and there, but basically just hard work.

Posted by: tech guy at December 5, 2005 6:15 PM

It's amazing to hear capitalists lavish their praise upon the free markets as if every social ill will be fixed when we people are ready to read the fine print, write some fine print of our own and simply contract around unsavory elements of the system. The fact is that our world has some very real problems, and purely free markets have not fixed them. If free markets were able to solve all of society's problems as claimed, then the mostly-free markets would have already been properly contracted around and the entire world would be living under one great libertarian pan-topian non-government. Unfortunately, this fairy tale hasn't yet panned out, and never will. There are problems in our world, and problems in our patent system, which require very real solution today, not some blind worship of capitalism. As a former engineer, I can attest that good systems are simpler ones, but they must be given a certain amount of form before they can function, and this happens through regulation of business, not capitalist idolatry.

To all who enjoy the profits that can be sucked off the inefficiencies in our current patent system: you had better get ready to swim like the rats you are because this ship is sinking. The problems with our system are so large they have drawn the attention even of the common man, and he will have them changed.

Posted by: Law Student at December 5, 2005 6:33 PM

"Occasionally" being found invalid? Got any statistics for that? All I can find are numerous claims that the majority of patents that are contested are struck down as invalid, though none of them have any numbers behind it except for one analysis of software patents (specifically) that indicate that in 1998, over 50% of software patents failed to cite prior-art, despite the fact that there were clear cases of prior-art in the field, and goes on to claim that all of these patents are improperly filed and therefore invalid.
http://lists.ffii.org/archive/mails/swpat/1999/Jul/0030.html


"Avoiding infringement is simple - use a prior art feature."
This may avoid infringement, but it won't save you from a court battle. Especially in the world of closed source software where the only way to win is to reveal your source so that people can see that it works differently than what the patent claims. Is it any wonder why so many companies choose to settle rather than fight even obviously flawed patents? Also, see above: if the patent doesn't cite any prior art, to the USPTO, none exists, thanks to their flawed research methods.

And finally, "This is pure ignorance of the nature of patent claims."... Sir (or Ma'am), you have the biggest set of cajones I've seen in a while, to have the unmitigated gall to call someone else out as "ignorant" on the subject even as the USPTO contemplates patents on fictional plotlines. While it hasn't been granted yet, the fact that the "Zombie Stare" patent application made it past the "laugh and throw it in the trash" stage to the point of being granted a provisional patent to allow the submitter to collect licensing fees bodes poorly for the system.http://www.plotpatents.com/

Posted by: Qzukk at December 5, 2005 6:45 PM

I suspect the only permanent fix is to severely limit the quantity of patents issued. I'd propose 1,000 per year. Patents should not issue for minor improvements that any competent engineer could come up with if tasked with it and given a few resources to work with. With a hard limit the patent office would be forced to pick only the best and most creative ideas. And they should be directed to give preference to short readable applications.

The beauty of my scheme is that in twenty years the number of active patents would be 20,000. In any given field the number would be far less, low enough that it would be reasonable to expect professionals in a field to be aware of the patents currently in effect.

Posted by: John Morris at December 5, 2005 7:42 PM

You think the patent system isn't nuts? Look at this. Just freaking LOOK at it.---

http://www.freepatentsonline.com/6368227.html---

A guy was granted a patent for the brilliant idea that you can sit in a swing and, instead of swinging forward and back, you can swing SIDE TO SIDE. Hey, great idea, but can you include a GRAPH to EXPLAIN your concept? (Yes.)---

It's infuriating to me that someone was paid with American tax dollars to review this "idea," approve it, and grant a patent. It's unoriginal - any kid who has ever had a swing has done it. It's trivial, useless, and has no monetary value. It's like patenting the motorboat sound you make by buzzing your lips together. This is INSANITY.

Posted by: Nathan at December 5, 2005 7:56 PM

Maybe I should patent air. Then when Patent Hawk tries to breath, I will either A. Sue his ass into oblivion. or B. Let Patent Hawk suffucate and die.

I think ill go with option B. Let him sufficate and die. My air fool, I own the copyright, the patent, and its my intelectual property. You are depriving me of my income! We are starving artists damn you, if you use my air you should pay !!!

I say screw the patent system, screw the intelectual property crap, screw copyright, and screw the U.S's government. The U.S. Government are nothing but commercialized terrorists.

Posted by: Ory'Hara at December 5, 2005 8:48 PM

You have to admit Peter, that if this many people are whining about software patents there may be a problem. The number of obvious patents or patents granted with prior art existing is growing. Add to the mix that a great deal of material is developed in a collage or university and then patented by a private corporation and you can begin to understand why people would see software patents as unfair.

Software patents are also perceived as a means of stifling innovation. This is the issue that gets the anti-patent forces mobilized. The software industry reinvents itself every ten years or less. If patents are used to prevent this constant change many of the innovations that are being planned for release in the next two to three years may not come to pass for the next seventeen to twenty-five years as companies wait for the relevant patents to expire.

While software patents have their place I think the guidelines for granting such patents need to be reexamined. Their needs to be an understanding that publicly funded inventions are owned by the public and should benefit the public. There also needs to be an understanding that a software patent is a defensive tool used for protecting an inventors rights, not an offensive tool used to stifle innovation.

Posted by: Anonymous Coward at December 5, 2005 9:41 PM

The L.A. Times had, as one of its unsigned Sunday editorials, "Patent Sanity Pending". Let's pick apart the foolish presumptions therein.

Such a pompous tone in the thesis statement. It was a 'good' one--i guess--because it told me exactly what to expect in the body.

What audience is he writing for? 6+ hour a day TV watchers who got an interent connection yesterday?

Posted by: Bovinity at December 5, 2005 9:47 PM

I'd think there's some truth to the comments suggesting change is afoot in the patent system. When so many people assume they know so much about an issue and get so worked up about it, it almost seems inevitable that something will happen.

I just thought I'd put my two cents in about a couple of statements that don't work for me:

"Occasionally being found invalid? Got any statistics for that? All I can find are numerous claims that the majority of patents that are contested are struck down as invalid..."

Of course many patents contested are found invalid, but it would be retarded to see this as anything other than the way every bit of our legal system works. Would I be exaggerating to say that a defendant in a patent suit spends 100x more money to try to prove a patent invalid than the PTO ever did examining it? I don't think so. Exhaustive searching of low-circulation publications, talking to every expert in the field that will answer their phone, I doubt I could even imagine the lengths that they'd go to which are basically inconceivable in terms of administrative patent examination.

"This may avoid infringement, but it won't save you from a court battle."

See legal system remarks above. Dude, nothing would save you from a court battle I could bring if I had your name and address, and I've never even met you. Do you even know what the standards are for a motion to dismiss?

"While it hasn't been granted yet, the fact that the "Zombie Stare" patent application made it past the "laugh and throw it in the trash" stage to the point of being granted a provisional patent to allow the submitter to collect licensing fees bodes poorly for the system."

This, itself, is an excellent example of such ignorance. Laugh and trash it stage? Granted a provisional patent? Allow the submitter to collect licensing fees? The author demonstrates a lack of understanding of the system to make any credibility impossible.

"A quick random walk through the USPTO's patent database will land any semi-sane person on a whole host of "obvious, vague or already in wide use" patents. It doesn't take a lawyer or prior-art-searcher-expert to figure this out."

Sure, because all semi-sane people have excellent memories of what was the state of the art on the filing date of any patent they come across. It totally takes a lawyer to figure it out. On what basis would you suggest that a semi-sane person has the faintest chance of understanding claim scope? Especially when plenty of lawyers fail the patent bar because they can't even write them correctly?

"As has been pointed out elsewhere, re-exam is a one shot deal."

No it isn't, and hopefully that has been pointed out elsewhere as well. Sure, you can't reexamine a patent twice on the same piece of art, but there's nothing stopping someone from firing numerous rockets if the first one blows up on the ground. And there's no court presumption against a piece of art that isn't of record. You could easily imagine a second publication, taken in conjunction with one already considered, where the two together raise a different question of patentability than the single considered reference.

Posted by: Bucky at December 5, 2005 10:23 PM

Few things in life are black and white, yet it’s common to cast things in such a light. If you are against patents entirely, you’ll never agree with my viewpoint, but, you’re free to express your opinion herein. The Patent Prospector is at least an open forum.

The quality of the patent system hinges foremost on the quality of patent examination.

Many patents are granted that could be invalidated. My bread-and-butter work is patent invalidation, and it would be surprising to many to find out how many supposedly sophisticated, seemingly patentable ideas, don’t deserve that coverage, not to mention some of the more obviously bogus patents that myself, readers, and others, regularly point out.

Lame patents don’t invalidate the patent system; they just make a damning commentary on the patent office. One of my ongoing points is that the patent office needs strengthening, with more funding.

Patent litigation does seem too costly, and the outcomes seemingly too haphazard at times. The cost of patent litigation reflects what’s at stake. Companies don’t spend millions in legal fees on patents worth thousands. Most patents are never monetized, but if they are, most are licensed without litigation, at a fraction of the price tag of the headline litigation cases covered throughout the press.

My somewhat ill-informed opinion is that there ought to be a separate patent court, similar to what Japan has recently embarked on, as a hopeful means to improve both the quality and speed of patent litigation. I feel my opinion on this not well informed because this issue is complex, with many aspects and trade-offs of which I am barely aware.

One commenter, ‘tech guy’, asked whether I had ever worked on a high-tech product. Several. I was a software developer for 20 years in commercial software product development.

In some future entry I’ll put a lightening rod on what legally constitutes the borderline of patentability, as that topic seems to be of considerable interest.

The point of the Patent Prospector is to enliven with information and opinion about patents. The pompous tone, as one commenter pointed out, is appropriate in trumpeting opinion pieces such as this one, which are like waving a red flag for comments. As intended, and with glee.

If the Patent Prospector entertains and is thought-provoking, laugh with me in appreciating the divergent viewpoints. After all, patents are only about money changing hands; there’s no real suffering, and nobody dies. Save the serious outrage for serious issues of government - peace/war, freedom/security, health care, environment.

Posted by: Patent Hawk at December 5, 2005 11:15 PM

There's no real suffering, and nobody dies? Tell that to the pharmaceutical industry. Most antibiotics come from molds - i.e., they're the natural waste product of living organisms. Most of modern pharmaceuticals are merely the refinement of knowledge gleaned from old wives' tales, the refinement of chemicals extracted from herbs etc... I would be OK with drug companies patenting the processes used to purify these drugs, but they don't stop there, they patent the chemical formulas, the chemical composition of these drugs and use their monopoly positions to literally decide who lives and dies in a disease-stricken region.

From uspto.gov: any person who “invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent,” subject to the conditions and requirements of the law. The word “process” is defined by law as a process, act or method, and primarily includes industrial or technical processes. The term “machine” used in the statute needs no explanation. The term “manufacture” refers to articles that are made, and includes all manufactured articles. The term “composition of matter” relates to chemical compositions and may include mixtures of ingredients as well as new chemical compounds. These classes of subject matter taken together include practically everything that is made by man and the processes for making the products.

Companies are patenting gene sequences, even though these occur in nature. No person created the sequence, they just invested the time to decipher what already existed. Patents are for genuine new creations, not discovering how something that already existed works.

Software is already protected by copyright, there is no justification for doubly protecting it with patents. And again, computing is just binary arithmetic at its core, and you cannot patent arithmetic. The fact that software patents have been granted is a clear sign that the patent office has failed to discharge its duty.

Posted by: Howard Chu at December 5, 2005 11:46 PM

What a bunch of ignorant trolls have chosen to post comments following this article!

I assume the majority work in software. The kind of arrogant geeks who work in that area consider that any invention is obvious on the basis that they're sooo great that if asked to solve a problem they would, of course, have straight away thought of what is claimed in the patent.

Furthermore, having listened to the same muppets rant on other forums, none of them can construe a patent claim for sh*t. They invariably misunderstand the scope of monopoly requested or fail to construe the claims 'in light of the description' as required.

The FUD that one poster disseminated with regard to 'the majority of patents that are contested are struck down as invalid' is another example of these people's poor understanding of the patent system. Even if they're right, so what, who wastes money challenging a perfectly valid patent such as one to a NCE that cures dengue fever or some other such disease? Of course some of the patents that are challenged are going to be found invalid, that's why someone thought it worth challenging them in the first place. Its only as a percentage of all the patents granted that figures for invalid patents are relevant.

Anyway, I'll leave the commie, pinko, luddite trolls who obviously lurk in these forums to labour on under their sad misapprehensions, as I don't think a lifetime would be long enough to correct soem of the wrongheaded thinking set out above.

P.S. As for the poor fool who confused copyright and patent protection...

Posted by: Chris Winter at December 6, 2005 2:51 AM

Aha, the usual anti-patent crowd is at it again and ignorant about the issues as they are...

The MAIN QUESTION which should be asked by the patent examiner when he reads a patent application is this: does this contribute to the state of humane knowledge, so granting this patent will benefit humanity at the expense of certain temporary monopoly on the idea ?

Unfortunately, for the majority of the patents in USPTO database the answer to this question is NO, but there are still many many cases when granting patent monopoly is well justified, including quite a few software patents...

The often cited 1-click patent is actually a *good* patent in comparison to many many patents issed to e.g. Microshit. You can see it for yourself at www.uspto.gov
Some of those MS patents may sound quite techincal and involved, but to the expert in the respective field (not just "software" as those open-source folks think, but "computer speech recognition", "image processing" etc)
they are complete and utter junk.

The only way to start a meaningful patent reform is to radically improve the quialityh of examinatiuon process. Period.

European Patent Office is MUCH more reasonable in granting patents, including software patents.
USPTO should be learning from their practices, as un-patriotic as it sounds...

Posted by: small guy at December 6, 2005 3:17 AM

There is never a lack for criticism of the patent office. Yet the public never offers any solutions. Most patent applications are published months before they are examined. Plenty of time for the public to comment or submit prior art. Problem is the public does not take advantage of this time. They would rather spend their time complaining about a few bad patents. Yes we all know about the swing and the method of exercising a cat. What about the other 7 million patents?

Posted by: g at December 6, 2005 5:02 AM

PatentHawk,

I'm just curious if there has *ever* been a significant case in which you have agreed that a patent was overbroad and/or incorrectly granted based on novelty, usefulness, or originality. I stumbled upon this page only recently, and I've just finished reading the past dozen or so articles. You obviously have a particular point of view (which it would not be unreasonable to describe as "patent maximalism"), so I'm wondering where you would draw the line, or where your threshold is.

For instance, would you have found the Wright Brothers' early aviation patents to be reasonable, or overbroad? And what would you say in the case where a court's decision regarding the technical merits of a patent was subsequently denounced by an overwhelming majority of experts in that technical field? (Here, as but one example, I am thinking of Justice Cardozo's decision in the famous RCA v. REL case regarding RF regeneration; see http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=293&invol=1).

So, do you think it is ever possible for a patent to "go too far?" If so, have you ever said (or written) as much?

Cheers,

Adam S.

Posted by: Adam at December 6, 2005 6:12 AM

"After all, patents are only about money changing hands; there’s no real suffering, and nobody dies."

Like Chu says, this attitude is dead wrong. The pharmaceutical industry is like a sclerotic dinosaur, spending billions of dollars in failed efforts to deliver new and effective drugs. There are a number of reasons (drug development is hard), but a huge factor that drags the system down is intellectual property/patents/restricted flow of information. It's analogous to the primitive state of centralized mainframes and proprietary software development prior to the PC and Open Source revolutions.

People in the near future are definitely going to die because advances in medical care are too long in coming, compared to the incredible rate of innovation that will happen some day when drug development moves towards a more open, diversified and IP-free model.

Posted by: William Knight at December 6, 2005 6:50 AM

>>"Too many patents are issued for "innovations" that are obvious, vague or already in wide use."

The PTO doesn't issue patents for things that are obvious or vague. They are very strict about that as anyone with a brain knows.

Of course patents are issued for things already in wide use, the patent process can take 7 years. And so the f--- what if a patent is used for something it wasn't invented for. Should the inventor of Velcro only get paid for velcro used in space? Hell no.

Obviously the LA Times desire for communism goes beyond their political editorials.

Posted by: Me at December 6, 2005 7:20 AM

I'm going to point out that one of the difficulties with Pharma isn't the patent problem, it's translational research. That is, the difficulty and expense of turning a discovery into a commercializable drug is not cheap.

If anything, on that front, patents provide a wee bit of protection on the investment. It's impossible to imagine a company taking an idea and moving it all the way through FDA approval without patent protection. Some would probably argue that permitting more patents near the front end of the process would actually incentivize more companies and permit MORE drugs to actually reach market.

I must say, those people that have commented so far in opposition to the patent system have not fared well. The arguments are pretty weak, and anecdotal at best.

It's hard for me to imagine that we would get rid of the patent system as it exists because what alternative has anyone really proposed? If anything, the hardest part to reconcile about the anti-patent stance is that it basically argues that we ought to wipe out most companies' most valuable asset.

It's true that there are problems with the patent system. Not the least of which is its ability to scale. Also up there is the incentive to issue patents instead of reject them (the USPTO does not get funds from general revenue but rather from patent fees and the fact that it's expensive to oppose a patent through to judgment by the CAFC). There's also the near total lack of good prior art references (and lack of well-qualified examiners) in the most cutting edge technologies, like computer science, nanotechnology, bio-engineering. That's, of course, not to say that there aren't some. Finally, the last big "problem" for the patent system is the costly nature of litigating patents. That's not really a "patent problem" but a cost of doing business problem. The only specialized court--or at least relatively specialized court--is an appellate level court, the CAFC. Unlike other areas, there is no patent court.

That means that courts--judges, in particular--have to hold hearings on everything from patent validity (including claim construction), infringement (literal and by doctrine of equivalents) and inequitable conduct every time. Not one of those steps is "easy".

There is no real easy fall back position on this issue. You cannot simply oppose the patent process without simply either 1) spending more money 2) hiring more people 3) eliminating the most valuable asset of many companies.

Posted by: mmmbeer at December 6, 2005 10:32 AM

g said: "There is never a lack for criticism of the patent office. Yet the public never offers any solutions."

WRONG! People have been suggesting useful reforms for many years. Unfortunately, these suggestions fall on deaf ears. It seems that patent reform only gets traction when a big company like Microsoft pushes for it.

Here are a couple of useful reforms:

1. open up the patent review process to experts outside of the USPTO. Essentially, use a peer review process consisting of MORE than just 1 person's (the examiner's) educated opinion. Use actual experts in the field. This requires, of course, that those experts either maintain the application secrecy for the first 18 months, or better yet, that patent applications become public as soon as they are submitted.

2. Allow the independent invention defense. If an "infringer" can prove that they didn't copy the idea but rather came up with it independently, the patent becomes invalid.

3. Automatic premature revocation of non-productive patents. If a patent issues but does not have either a licensee or a product on the market within some timeframe (say, 3 years after issuance), the patent becomes invalid. This helps reinstate the usefulness clause as a real-world test instead of a judgement call made by the examiner. The usefulness clause says that an invention must actually work to be patented. It used to be that physical embodiment of the invention had to be submitted, but this was/is impractical. Making the material prove itself by either becoming embodied in the real world or receiving a third party license validates its usefulness. Not doing so validates its non-usefulness. And the hurdles aren't too high -- the inventor can produce 1 copy of the device within the timeframe and satisfy the requirement for validity.

I know that non of these are perfect, but that's true of the current system which is far, far, far from perfect. So why aren't such ideas ever proposed in legislation? They've certainly been talked about for a long time.

Posted by: joey5 at December 6, 2005 11:33 AM

joey5 wrote:
"Automatic premature revocation of non-productive patents. If a patent issues but does not have either a licensee or a product on the market within some timeframe (say, 3 years after issuance), the patent becomes invalid. This helps reinstate the usefulness clause as a real-world test instead of a judgement call made by the examiner. The usefulness clause says that an invention must actually work to be patented. It used to be that physical embodiment of the invention had to be submitted, but this was/is impractical. Making the material prove itself by either becoming embodied in the real world or receiving a third party license validates its usefulness. Not doing so validates its non-usefulness. And the hurdles aren't too high -- the inventor can produce 1 copy of the device within the timeframe and satisfy the requirement for validity."


This is just BS !

All of the big technology "pirates" would just love this suggestion of yours.
It's just sad to have an ordinary lame person lobbing for big moneyed interestes for free, out of pure ignorance and misinformation.
Apparently you have never invented anything of use to the "big guys", much less tried to license your invention to them.
"Big guys" never ask a small guy for a license, even if it costs them a dime, they just take the ideas from published patent applications and implement them immediately..
I guess this is some unwritten statute of corporate behaviour: "kill small guy with a valuable patent: first ignore him, then call him bad names ("patent troll"), outspend him and make his life miserable until he hopefully dies by himself after spending 10-15 years in courts"
This is the unwritten rule in corporate America today.
Where do you live, on the Moon ?

Posted by: small guy at December 6, 2005 12:52 PM

Peer review as such would be a nightmare. OTOH, opposition proceedings offer some of it's advantages without the obvious problems (conflicts of interest, funding, etc.). Reexam is similar to opposition, but still not the same, and maybe a move to something more like opposition would not go amiss. The problem is, to discuss these issues intelligently you have to know something about patent law :-)

Posted by: Alun at December 6, 2005 4:36 PM

small guy wrote:
This is just BS !
All of the big technology "pirates" would just love this suggestion of yours.
It's just sad to have an ordinary lame person [etc etc]


I hate to break it to you small guy, but your name-calling and apparent inability to use logical arguments don't reflect well on your position or knowledge. joey5's suggestions seem very reasonable in contrast to your incoherent ramblings. But I'm curious: why do you think that the revocation idea would benefit large corporations over independent inventors?

Posted by: Gary at December 6, 2005 5:44 PM

I like the 18-month publication rule and think it makes a whole lot more sense than immediate publication. How else do you give a guy a year from his first public disclosure to get on file?

Then again, I privately suffer from the belief that the best evidence of inventorship is what you can shake out 3 or 4 years from filing. No firsthand knowledge, of course.

Posted by: bucky at December 6, 2005 10:33 PM

Once again, the idea to revoke patent rights if
no product is on the market within * years or no license is sold is the most *foolish* idea I ever heard...
It plays right into the hands of the biggest corporations. Why ?

It is easy to see why:
A modern high tech product (e.g. cell phone) is not based on just one or few patents - its a combinations of dozens of patented inventions
One patent issued to small guy, no matter how valuable it is, does not give him the right to manufacture said item, only the right to exclude others from including his invention (e.g. using some particular modulation scheme in cell communications)
And as I said before, big guys *never* ask small guy for a license and *never* respond when such license is offered to them very cheap - they just plainly steal the invention and include it in their products. And in many cases it is very diffucult, almosty impossible, to find out if
a particular product infringes - try to look inside of those cell phone DSP processors ...

The small guy is left with his patent and the rest of his life to achieve justice.
This is the *rule* in corporate America today...

Posted by: small guy at December 7, 2005 6:41 AM

So... I\'m trying to follow... if patents could be revoked after 3 years of non-implementation, the small guy suffers because the big company is going to steal it anyway, and somehow make his patent invalid?

I simply don\'t see how it can be that hard to overcome the proposed instantiation requirement. I\'m thinking of your cell phone example right now. Let\'s say to build the phone in my pocket, I would need license to 100 different patents. And let\'s say that I just came up with an idea that improves some function of the DSP. Why can\'t I build my improvement (without building the cell phone) to prove that it works, and offer it for sale at eBay for $695.7 million dollars? You can\'t be saying that your invention doesn\'t work if you build it without building the entire phone, because then you are admitting that your patent doesn\'t pass the usefulness requirement. The described invention *has to work*, otherwise the patent is invalid. So what are you saying?

Once you\'ve built 1 working example and put it on the market, or sold one license, you\'ve validated your patent and can go ahead and sue Nokia, just like now. The only difference is that the onus for proving \'usefulness\' is on the inventor, and not left up to the whims of the patent examiner (who, I\'m sorry to say, has proven to be an extremely poor judge of usefulness up to this point).

Posted by: Gary at December 7, 2005 12:37 PM

Gary, it is difficult to discuss something with somebody who has absolutely no concept of that something whatsoever...

Let me just give you one example:
RSA algorithm widely used for encryption nowdays in every web browser.
When it was first invented, back in late 70s, it was quite obvious to everybody, including patent examiners, that algorithm works as described and that it is potentially very useful.
But no e-commerce existed at the time, no WWW, not IE or Netscape, nothing..

Does it mean that Microsoft could just take it and include in their IExplorer some years later just because inventors didn't implement their
algorithm in the context of web-browser ?

Of course, not, They'd better pay for a license, which they did...

Posted by: small guy at December 7, 2005 5:51 PM

“small guy” noted frustration regarding debate in this forum. As an “open forum of patent information and opinion”, the opinions from the peanut gallery are not always going to be particularly well informed, to put it generously. As this author knows, even the peanut gallery keeper isn’t exempt from being considered ill-informed. As Mr. Bennett said in Jane Austin’s Pride & Prejudice, “what are we but to make sport of our neighbors, and be sport in our turn.” Indeed. The responsibility of every true democrat (that is, believer in democracy) is tolerance.

In fact, the controversy stirred by this opinion piece did more for readership than any of the news or court cases covered herein, far outdistancing the Space Oddity and patent troll stories, which struck readers’ fancies for curiosity value and controversy, respectively. Let’s all keep reading, and we’ll all learn something… well, that’s the hope.

Posted by: Patent Hawk at December 8, 2005 1:21 AM

small guy said: "Let me just give you one example:
RSA algorithm widely used for encryption nowdays in every web browser."

Here we go with the RSA again -- I thought we'd finished that thread at: http://www.patenthawk.com/blog/archives/2005/11/brain_compressi.html#comments

Ah well, so I'll try to clear up what I think is some confusion. I didn't propose that the patent grantee had to instantiate the patent once inside of every conceivable use. I said they should have to instantiate it once. In the case of RSA, they had a working prototype LOOOONG before they filed the patent, and certainly LOOOOOOOOOOOONG before the proposed 3-years-after-grant would have been up. This wouldn't have been any sort of hurdle for those guys. They would have had a valid patent.

Now, the second proposal (independent invention defense), on the other hand, has the possibility that it may have caused them some trouble -- other researchers in this aread might have been able to arrive at assymetric encryption independently. But this, too, is unlikely, as researchers in the area certainly would have been reading the academic papers by Rivest, Shamir, and Adelman, and been exposed to the idea before they hit upon it independently.

So, I'm puzzled too. What exactly is you objection to this proposed reform?

Posted by: joey5 at December 8, 2005 8:13 AM

All I want to say to this anti-patent crowd is
that is really helps to know some specifics of the patent law before discussing its implications and possible drawbacks...

Independent invention defense is nonsense.
With 18-month publication of the most patent applications today, what kind of defense can it be?
Do you want a *mind-reading* laws, or people swearing under oath that they didn't go to
www.uspto.gov/patft to read somebody elses's published patent application ?
And may I remind you that US is still *first-to-invent* country: If you have an adequate proof of your own invention you can file your patent application later than somebody else, the PTO will have to conduct interference proceedings and will have to give the patent to you, if you can prove that you invented it before somebody else did. Remember Gordon Gould and "laser patent wars" stories ?

Posted by: small guy at December 9, 2005 6:50 AM

The burden of proof for the independent invention defense would be similar to what is used today for proving that you were the "first to invent", e.g., signed and dated labbooks with 2nd party signatures, postmarked material, dated receipts from materials needed to invent, clear evidence that all the steps necessary to arrive at the invention were taken, etc.

The 2nd inventor would have the burden of proof. He would have to convince a judge/jury that they weren't exposed to the first invention, but that they actually had the capability and put in the work to invent. This certainly requires more proof than swearing that they didn't just find it at the USPTO website.

But I think I see your concern: if the first inventor patented something that covers some obvious next step, then the amount of proof needed by the second is not much. You are worried about this, perhaps because you want to take out patents on obvious ideas. Well, that's exactly the point -- the independent invention defense has a natural tendency to weed out the bad patents.

Bad patents are good for those in the IP law field -- they create more work and more revenue. And they are good for the holders of bad patents because they give meritless work a chance to pay off in a big way. They aren't good for anyone else.

My primary concern is patent quality. I want the quality of patents to be improved. If patent quality were better, there wouldn't be any need for us to argue about this stuff. And I think it should be clear to you from all the posts in this thread that more of us feel that the system is broken than that it works fine.

Posted by: joey5 at December 9, 2005 3:25 PM

joey5 wrote:
"My primary concern is patent quality. I want the quality of patents to be improved. If patent quality were better, there wouldn't be any need for us to argue about this stuff."

Finally, we agree on something !
This is exactly the point I want to make regarding the current state of affairs.
1)Bad patents are bad.
2)Good patents are valuable property which can be sold, licensed, enforced etc. by the patent holder regardless of whether he makes any product or not.
If we can agree on these 2 points then the rest
follows pretty easy...

Posted by: small guy at December 11, 2005 4:53 PM

Sometimes I think I'm a european IT engineer and I'm very happy not to be in such a country as U.S., but then I remember Europe is just following you, step after step! We will be soon completely hard locked with this purely stupid patent system.
A patent organization should issue a patent for a good innovation, in order to avoid secrets. When your patent (i.e. monopoly) ceases, every citizen or firm can share your idea, and you can make another good invention on this basis. The same can apply with copyright: if you have a mouse-case each time you draw a little mouse, then you cannot criticize past culture to make your generation's one. 70 years is a far too long delay for copyright protection: it means I can barely use freely artwork drawn up to 1934! Why not protect up to paleolithics designs?!?
The patent organisation is paid more for more patents, so why should it stop licensing dumb ideas shamelessly? A real way of getting it better would be to make it pay for errors. This would be the only way to make it really act according to its rules.

Posted by: Pete at December 11, 2005 7:47 PM

small guy said: "1)Bad patents are bad."

The problem is that the legal economy is all for bad patents. They may not admit it explicitly, but they are, out of neccesity, in favor of whatever helps them make more money. And there is no greater cash cow than defending and fighting against bad patents. I shudder to try to put a dollar figure on the costs of bad patents, but think about it, but this guy does take an initial stab: http://righttocreate.blogspot.com/2005/11/evidence-of-poor-patent-quality.html

All that money to our lawyers and their helpers! I suppose if the strength of our inconomy hinged on the amount of money we poured into the legal system for wrangling over ill-defined and wrongly-awarded patent monopolies that this would be a good thing. But I'm old-fashioned. I happen to believe that innovation and selling products and services is a better way to earn our money.

Oh, and Pete -- don't let your European system imitate ours! You've got to preserve a place in the world where us American innovators can flee when our system becomes too oppresive!

Posted by: joey5 at December 12, 2005 8:16 AM