12 ms·

Federal Circuit Should Not Allow Patents on Inventions That Belong to the Public

86 points by DiabloD3 9y ago

JonnyNova 9y ago
It always bugs the hell out of me that many large organizations will file for patents that they have no intent of developing. I worked at a certain large corporation previously and they would have patent brain storming camps encouraging various employees to think of and file for patents on just about any topic regardless of the business's involvement in that field. A large majority of patents that come out of those workshops either stifle innovation in that area completely or are used to later extort someone who wishes to actually bring it to market.
- OtterCoder 9y ago
  Maybe we should have a law that allows patent infringement in the case of someone being able but unwilling to bring a product to market? There are probably too many potential loopholes in that law though. There have been cases in publishing where a malicious publisher buys the rights to publish a book, promising a minimum run of the book, and then setting the price of the book prohibitively high, effectively censoring the title.
  - monocasa 9y ago
    At that point, even the song and dance of 'it helps the little guys protect their ideas from the big corporations' is totally gone. Big corporations can just make it so that small inventors almost never get the capital to develop the invention, so that the corporation can say 'see, he never even attempted to bring the product to market' and develop it on their own with out compensation. IMO, the whole patent system should just be tore down.
    - OtterCoder 9y ago
      I don't think the wild west will be any friendlier to small inventors than the current techno-dystopia. At least at the moment companies are required to toss a coin at prior art occasionally.
- dctoedt 9y ago
  > patent brain storming camps encouraging various employees to think of and file for patents on just about any topic regardless of the business's involvement in that field One principal reason is to establish a defensive portfolio, for possible use in counterattacking and as currency in future cross-licensing negotiations. If (let's say) IBM were to threaten sue XYZ Corporation for infringement [0], then XYZ would look through its own portfolio of patents to see which patents the company could use to assert a counterclaim against IBM; if XYZ didn't own any patents, it'd have nothing to trade. [1] It's commonly believed that this is why Microsoft went on a patenting binge in the 1990s: so that it would have something with which to counterattack and trade cross-licenses if, say, IBM sued it for infringement. EDIT: This was documented in a 1991 Bill Gates memo [2]. [0] In the early days of the PC, a certain large computer company had a reputation for (figuratively) dropping two or three stacks of patents on another company's desk and saying, you can have a license to Stack A for X% of your revenue, a license to Stacks A and B for X+Y% of your revenue, and a license to all three stacks for X+Y+Z% of your revenue. The other company would ask, which ones do you think we infringe? The larger company would answer, oh, we have no idea, but now that you know about these patents, if you do infringe, we'll find out eventually, you'll be a willful infringer, and you'll owe us up to treble damages. Some companies decided that settling was the better part of valor. [1] https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=2074&context=btlj https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?art... [2] https://arstechnica.com/information-technology/2007/03/analysis-microsofts-software-patent-flip-flop/ https://arstechnica.com/information-technology/2007/03/analy...
  - aplorbust 9y ago
    To finish the story with some original thought, lets ask why this tactic works. Perhaps it works because of the expense of determining which patent claims could realistically survive a motion to dismiss, i.e., the hourly rate of the patent lawyers hired to do this analysis and the number of hours they take to do it. The larger the stack of potentially assertable claims that need to be considered, the greater the cost. Quantity not quality. If that process of determination, separating wheat from chaff, filtering out all the nonassertable (junk) claims, was less expensive than simply paying for a licenseFN1, then perhaps this tactic would not work. FN1. Use imagination if believe this is impossible to achieve.
- skookumchuck 9y ago
  Any idea that comes out of a brain-storming session is de-facto obvious. Non-obvious ideas take time to think about and develop.
  - jacobolus 9y ago
    In a “patent brain storming camp” people are going to (at least sometimes) bring in ideas they have been ruminating for years. In many cases (according to the grandparent poster) ones unrelated to their direct jobs, which arguably their employer has no reason to claim rights over, but which might well still be novel advances to the state of the art.
    - skookumchuck 9y ago
      The ones I've seen were all ideas made up on the spot. The whole point of brainstorming is to make up ideas on the spot.
kfriede 9y ago
I wonder how this would effectively play out. How much market research will be deemed acceptable to accurately say that something hasn't been invented yet? Can Joe Dirt sue a company a year after their patent filing, saying he posted the idea on his Twitter before they filed?
virtuowl 9y ago
I always feel that patents or at least the way patents work is really bad for humanity as a whole and hindering our progress. On the other hand there has to be some way for inventors to benefit, are there any good alternatives?
- philipov 9y ago
  Don't allow corporations to own patents. Limit their ownership to individual humans.
  - NeonVice 9y ago
    How exactly would that work when I work for a corporation who is paying me to invent? If I am successful in my invention, then I just take my invention and run. This would stifle research investment.
    - walterbell 9y ago
      Shared ownership? Both parties take risks.
    - monocasa 9y ago
      This is how it works in Germany. Patents aren't transferable in Germany, even from employee to employer, but you can licence them to your employer.
- rayiner 9y ago
  Have you ever worked in a field where patents are an important part of the market structure? Telecom, pharma, etc.? I spent my engineering career in telecom, and patents are a key part of the model. Those industries don't have the equivalent of a Google or an Apple that can bankroll expensive R&D on the back of massive consumer revenue. They're no unicorns or network effects where you can take a 20% cut on every app that gets sold to your captive user base. Instead, companies pay teams of very expensive PhDs to develop things like error correction systems for modems. They patent those things, use the patents to either extract licensing revenue or, more importantly, keep out free riders who didn't contribute to developing the technology. Then it's all obsolete in five years and they do it all over again. Markets are good, and patents, as imperfect as they are, provide an infrastructure for integrating expensive R&D efforts (which don't result in tangible property), into markets, in a way that avoids free-riding. And it also results in market structures that are sane. I can just go buy a Broadcom Wi-Fi chip. Broadcom can recoup its investment by just selling me a chip, and count on patents to keep out free-riders. Their business model doesn't require them to make a whole consumer end-product like a phone, or tie their hardware to advertising, to be viable. In the absence of patents, you get trade secrets and vertical integration. Apple doesn't care about patents because it doesn't sell you chip designs or even a chip, it sells you an iPhone. Google doesn't care about patents because it doesn't sell VP9 or Blink--those are just a means for furthering its advertising business. Take a step back and think about the business models you want to see more of. Do we need more Apples and Samsungs, which want to sell you a complete end-user product tied to their ecosystem? Or do we want more ARMs, which are happy to just sell you a chip or even an IP core? Wouldn't it be nice to bring back Netscape? Where you could just exchange money for a web browser, instead of going to google.com and it bugging you to download Google's web browser for "free?"
amelius 9y ago
One big problem with patents is that they are often filed for technologies developed by universities and government institutions (e.g. paid by the tax payer), where just the last missing piece of the puzzle is actually patentable. I'd say we introduce a challenge period. If someone wants a patent, they should pose a challenge for anyone to come up with a solution. If nobody comes up with a solution in the given period, then they can have the patent. This would work perfectly for stupid software patents.
- madez 9y ago
  This is a good idea, but to make it fair I would add a fee for the applicant that is paid out as a bounty to the successful challenger, or returned to the applicant, if the challenge wasn't met.
- ABCLAW 9y ago
  The larger issue is how do we get universities incentives to produce practical innovation. Currently, there are a number of different institutional frameworks for trying to deal with the issue. Most of them don't work well. We have university patents + tech transfer offices. We have obligated NIH patent holding + licensing available to third parties for NIH sponsored innovations. We have government funded 'incubator'-like institutions with wide or narrow research scopes, etc. Patents overall are an attempt at a solution for a larger problem - how do we allocate rewards to innovators. Our main model for doing so, academically, is to try and fail to create transparent funding flows to finance enlightenment-style aristocratic researchers (with labs, equipment, staff, etc). We do this in a manner that avoids accusations that they are receiving privileged patronage while also paying lip service to the idea that free-riders, extra-territorial or not, should contribute to the effort. But note that we're trying to do different things with this one tool - and attempts to fix it in one area often result in breaking it in another. The entire system is just kludge upon kludge because of this.
  - BraveNewCurency 9y ago
    > how do we allocate rewards to innovators The goal of the patent system is not to "pay innovators" - they already get paid by putting good products on the market. The goal of the patent system is to get innovators to PUBLISH their solutions so that the public can benefit from them. (And build on them in the future.) If the patent is obvious, then the public gets no benefit, and we're handing out monopolies for free.
md2be 9y ago
Eff might be wrong on this one, The problem with the provisional: is it apparently does not fully support any of the claims pending in the Fan application as published. That is, the invention as claimed was NOT in the public domain.

86 points by DiabloD3 9y ago

It always bugs the hell out of me that many large organizations will file for patents that they have no intent of developing. I worked at a certain large corporation previously and they would have patent brain storming camps encouraging various employees to think of and file for patents on just about any topic regardless of the business's involvement in that field. A large majority of patents that come out of those workshops either stifle innovation in that area completely or are used to later extort someone who wishes to actually bring it to market.

OtterCoder 9y ago
Maybe we should have a law that allows patent infringement in the case of someone being able but unwilling to bring a product to market? There are probably too many potential loopholes in that law though. There have been cases in publishing where a malicious publisher buys the rights to publish a book, promising a minimum run of the book, and then setting the price of the book prohibitively high, effectively censoring the title.
- monocasa 9y ago
  At that point, even the song and dance of 'it helps the little guys protect their ideas from the big corporations' is totally gone. Big corporations can just make it so that small inventors almost never get the capital to develop the invention, so that the corporation can say 'see, he never even attempted to bring the product to market' and develop it on their own with out compensation. IMO, the whole patent system should just be tore down.
  - OtterCoder 9y ago
    I don't think the wild west will be any friendlier to small inventors than the current techno-dystopia. At least at the moment companies are required to toss a coin at prior art occasionally.
dctoedt 9y ago
> patent brain storming camps encouraging various employees to think of and file for patents on just about any topic regardless of the business's involvement in that field One principal reason is to establish a defensive portfolio, for possible use in counterattacking and as currency in future cross-licensing negotiations. If (let's say) IBM were to threaten sue XYZ Corporation for infringement [0], then XYZ would look through its own portfolio of patents to see which patents the company could use to assert a counterclaim against IBM; if XYZ didn't own any patents, it'd have nothing to trade. [1] It's commonly believed that this is why Microsoft went on a patenting binge in the 1990s: so that it would have something with which to counterattack and trade cross-licenses if, say, IBM sued it for infringement. EDIT: This was documented in a 1991 Bill Gates memo [2]. [0] In the early days of the PC, a certain large computer company had a reputation for (figuratively) dropping two or three stacks of patents on another company's desk and saying, you can have a license to Stack A for X% of your revenue, a license to Stacks A and B for X+Y% of your revenue, and a license to all three stacks for X+Y+Z% of your revenue. The other company would ask, which ones do you think we infringe? The larger company would answer, oh, we have no idea, but now that you know about these patents, if you do infringe, we'll find out eventually, you'll be a willful infringer, and you'll owe us up to treble damages. Some companies decided that settling was the better part of valor. [1] https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=2074&context=btlj https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?art... [2] https://arstechnica.com/information-technology/2007/03/analysis-microsofts-software-patent-flip-flop/ https://arstechnica.com/information-technology/2007/03/analy...
- aplorbust 9y ago
  To finish the story with some original thought, lets ask why this tactic works. Perhaps it works because of the expense of determining which patent claims could realistically survive a motion to dismiss, i.e., the hourly rate of the patent lawyers hired to do this analysis and the number of hours they take to do it. The larger the stack of potentially assertable claims that need to be considered, the greater the cost. Quantity not quality. If that process of determination, separating wheat from chaff, filtering out all the nonassertable (junk) claims, was less expensive than simply paying for a licenseFN1, then perhaps this tactic would not work. FN1. Use imagination if believe this is impossible to achieve.
skookumchuck 9y ago
Any idea that comes out of a brain-storming session is de-facto obvious. Non-obvious ideas take time to think about and develop.
- jacobolus 9y ago
  In a “patent brain storming camp” people are going to (at least sometimes) bring in ideas they have been ruminating for years. In many cases (according to the grandparent poster) ones unrelated to their direct jobs, which arguably their employer has no reason to claim rights over, but which might well still be novel advances to the state of the art.
  - skookumchuck 9y ago
    The ones I've seen were all ideas made up on the spot. The whole point of brainstorming is to make up ideas on the spot.

kfriede 9y ago

I wonder how this would effectively play out. How much market research will be deemed acceptable to accurately say that something hasn't been invented yet? Can Joe Dirt sue a company a year after their patent filing, saying he posted the idea on his Twitter before they filed?

virtuowl 9y ago

I always feel that patents or at least the way patents work is really bad for humanity as a whole and hindering our progress. On the other hand there has to be some way for inventors to benefit, are there any good alternatives?

philipov 9y ago
Don't allow corporations to own patents. Limit their ownership to individual humans.
- NeonVice 9y ago
  How exactly would that work when I work for a corporation who is paying me to invent? If I am successful in my invention, then I just take my invention and run. This would stifle research investment.
  - walterbell 9y ago
    Shared ownership? Both parties take risks.
  - monocasa 9y ago
    This is how it works in Germany. Patents aren't transferable in Germany, even from employee to employer, but you can licence them to your employer.
rayiner 9y ago
Have you ever worked in a field where patents are an important part of the market structure? Telecom, pharma, etc.? I spent my engineering career in telecom, and patents are a key part of the model. Those industries don't have the equivalent of a Google or an Apple that can bankroll expensive R&D on the back of massive consumer revenue. They're no unicorns or network effects where you can take a 20% cut on every app that gets sold to your captive user base. Instead, companies pay teams of very expensive PhDs to develop things like error correction systems for modems. They patent those things, use the patents to either extract licensing revenue or, more importantly, keep out free riders who didn't contribute to developing the technology. Then it's all obsolete in five years and they do it all over again. Markets are good, and patents, as imperfect as they are, provide an infrastructure for integrating expensive R&D efforts (which don't result in tangible property), into markets, in a way that avoids free-riding. And it also results in market structures that are sane. I can just go buy a Broadcom Wi-Fi chip. Broadcom can recoup its investment by just selling me a chip, and count on patents to keep out free-riders. Their business model doesn't require them to make a whole consumer end-product like a phone, or tie their hardware to advertising, to be viable. In the absence of patents, you get trade secrets and vertical integration. Apple doesn't care about patents because it doesn't sell you chip designs or even a chip, it sells you an iPhone. Google doesn't care about patents because it doesn't sell VP9 or Blink--those are just a means for furthering its advertising business. Take a step back and think about the business models you want to see more of. Do we need more Apples and Samsungs, which want to sell you a complete end-user product tied to their ecosystem? Or do we want more ARMs, which are happy to just sell you a chip or even an IP core? Wouldn't it be nice to bring back Netscape? Where you could just exchange money for a web browser, instead of going to google.com and it bugging you to download Google's web browser for "free?"

amelius 9y ago

One big problem with patents is that they are often filed for technologies developed by universities and government institutions (e.g. paid by the tax payer), where just the last missing piece of the puzzle is actually patentable. I'd say we introduce a challenge period. If someone wants a patent, they should pose a challenge for anyone to come up with a solution. If nobody comes up with a solution in the given period, then they can have the patent. This would work perfectly for stupid software patents.

madez 9y ago
This is a good idea, but to make it fair I would add a fee for the applicant that is paid out as a bounty to the successful challenger, or returned to the applicant, if the challenge wasn't met.
ABCLAW 9y ago
The larger issue is how do we get universities incentives to produce practical innovation. Currently, there are a number of different institutional frameworks for trying to deal with the issue. Most of them don't work well. We have university patents + tech transfer offices. We have obligated NIH patent holding + licensing available to third parties for NIH sponsored innovations. We have government funded 'incubator'-like institutions with wide or narrow research scopes, etc. Patents overall are an attempt at a solution for a larger problem - how do we allocate rewards to innovators. Our main model for doing so, academically, is to try and fail to create transparent funding flows to finance enlightenment-style aristocratic researchers (with labs, equipment, staff, etc). We do this in a manner that avoids accusations that they are receiving privileged patronage while also paying lip service to the idea that free-riders, extra-territorial or not, should contribute to the effort. But note that we're trying to do different things with this one tool - and attempts to fix it in one area often result in breaking it in another. The entire system is just kludge upon kludge because of this.
- BraveNewCurency 9y ago
  > how do we allocate rewards to innovators The goal of the patent system is not to "pay innovators" - they already get paid by putting good products on the market. The goal of the patent system is to get innovators to PUBLISH their solutions so that the public can benefit from them. (And build on them in the future.) If the patent is obvious, then the public gets no benefit, and we're handing out monopolies for free.

md2be 9y ago

Eff might be wrong on this one, The problem with the provisional: is it apparently does not fully support any of the claims pending in the Fan application as published. That is, the invention as claimed was NOT in the public domain.