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I think its too easy to get a patent, and that leads to a great proliferation of patents that serve little purpose but to slow innovation. I worked at a patent

I think its too easy to get a patent, and that leads to a great proliferation of patents that serve little purpose but to slow innovation. I worked at a patent law firm about 15 years ago in my wild youth. I’ll never forget hearing an attorney explain that getting a patent is basically bullying the examiner, and if that doesn’t work, appealing repeatedly until it’s eventually accepted. Are there statistics of the number of patent applications rejected? Even better, I would love to see the number of patent applications filed by the Apple computer corporation, and how many were accepted, and how many were rejected. Edit: Autocorrect error.

paxys 5y ago
Too easy from the technical side, too difficult/expensive from the legal side. Solo inventors and startups working on genuinely new and interesting technology do not have the funding to hire fancy law firms, while companies like Microsoft and IBM file a dozen patents a day (not an exaggeration). It's the exact opposite of how a patent process should work.
- deelowe 5y ago
  And a perfect example of how regulatory capture works. I don't have a solution, but I am convinced that over time this is the end result of ANY regulation. It doesn't matter what the original intent is/was.
  - dantheman 5y ago
    The answer is to not grant patents.
  - wpietri 5y ago
    I look it as an evolutionary system, an arms race. Capture will happen if the regulators don't keep up. But it's possible to keep up. US financial markets have a lot of internal regulation for traders, so they're wrangling some of the most aggressive do-anything-for-a-buck people on the planet. Nonetheless, the traders are generally kept in check. I used to do tech for derivatives traders and we knew to never, ever fuck around with a market. That didn't always stop our traders, of course. We had some based in Frankfurt who hated living there. They decided they wanted to live in London, and so quietly shifted their trading terminals to our London office. This was strictly forbidden; at least at the time, the mid-90s, trading on the Deutche Terminborse was to take place on German soil and nowhere else. Eventually the regulators got suspicious and so they were standing outside ringing the bell while watching our trading activity. So one of my technical colleagues had to rent a van, load everything up, drive it 10 hours back to Frankfurt, and have it all working by the next morning. Which we did, and so avoided formal sanction, but it was close. That probably kept those traders from doing something foolish for at least another year.
    - pksebben 5y ago
      So, the traders did something explicitly forbidden and didn't get penalized for it; that doesn't sound like being "kept in check" to me. Never mind those manipulations that make it through the regulatory filter, a la mortgage securitization circa 2008.
      - wpietri 5y ago
        It was them getting kept in check, because they quickly corrected the behavior. And as far as I know, never repeated it. Explicit punishment is not the only way policing happens. Indeed, I think the most important parts happen well before that.
    - laurent92 5y ago
      > standing outside ringing the bell while watching our trading activity Do you mean ringing manually the bell of the end-of-the-day of the stock exchange? When they rang it the first time, didn’t they catch them not going out of the building?
      - wpietri 5y ago
        I mean they rang the doorbell. They could see that the traders were active, meaning that they were supposedly in the office. But the door was locked and nobody answered it.
  - specialist 5y ago
    Ya, like a bureaucratic DDoS attack. > regulatory capture ... is the end result of ANY regulation. All evidence to date supports this conclusion. Can we do better? Regulations are two-party, can be distilled down to us vs them. How do we make them three party? Transmute them into trilemmas? (Tripods are more stable that bipods.) Maybe grant a seat to the parties on the receiving end, the natural antagonists to the parties being regulated. And empower them appropriately.
  - CalChris 5y ago
    That isn’t what regulatory capture means. Regulatory capture has to do with industry vs public rather than big co vs little co. Regulatory capture is an economic theory that regulatory agencies may come to be dominated by the interests they regulate and not by the public interest. The result is that the agency instead acts in ways that benefit the interests it is supposed to be regulating. https://www.investopedia.com/terms/r/regulatory-capture.asp https://www.investopedia.com/terms/r/regulatory-capture.asp
    - jlawson 5y ago
      In this case, the small-co or independent inventor acts as a member of the public. It's really about established players being able to invest in controlling the regulators that are specific to them, while new players considering entering obviously don't have this advantage. Structurally it's similar to NIMBYism.
    - deelowe 5y ago
      As another commenter suggested, let's look at the data from the USPTO and see what the submission/approval ratio looks like for large cap, small cap, and independents before jumping to conclusions...
- wpietri 5y ago
  Yup. A friend worked for a now-extinct tech company that strongly encouraged employees to patent as much as possible. On his desk, he had one of those drinking bird toys. [1] When the head got sufficiently wet, water would drip onto his desk. He made a little celluloid collar for the bird so that excess water would get dumped back into the cup the bird was drinking from. On a lark, he wrote it up as patentable innovation. His boss thought it was funny and approved it. So did the lawyers. He ended up with one of the little plaques they gave employees for patents. And maybe a cash bonus? It was long enough ago that I forget. But apparently that's what IBM does: https://news.ycombinator.com/item?id=17835839 https://news.ycombinator.com/item?id=17835839 [1] https://en.wikipedia.org/wiki/Drinking_bird https://en.wikipedia.org/wiki/Drinking_bird
  - CalChris 5y ago
    I think that's because IBM has a massive portfolio and just treats it statistically in IP cross-licensing negotiations. I had a boss at a company who said they added up theirs and IBM added up theirs, then his company wrote a check to IBM every year.
    - gyc 5y ago
      IBM also plays tricks to artificially boosts the number of patents it gets. For example, for a computer-implemented invention, a patent application will generally have a set of claims for the method that a computer performs to implement the invention and a set of claims for the computing device itself configured to perform the invention. What IBM likes to do is to split those two sets of claim into separate patent applications, so one application just claims the method and another application claims the computing device. So when most other companies would only get a single patent for a computer-implemented invention, IBM would get two patents. So this helps IBM maximize licensing revenue in the example where they're just adding up the number of patents.
    - svilen_dobrev 5y ago
      Every big corp makes such list, and measures against others, no matter what patents there are. Nearly 20 years ago, in initial bootcamp in big-corp, there was half a day course by a patent guy, and one of the warnings he gave was "be careful where you search for your new idea" - the most wellknown patent search web site then, was owned by.. IBM.
- jackcosgrove 5y ago
  Patents aren't all that expensive. Defending your rights in court, however...
  - CalChris 5y ago
    Consequently writing a PTAB review resistant patent is expensive because you really can't defend a poor drafted vanity patent after the fact.
  - DethNinja 5y ago
    That is just for the USA, patents are extremely expensive in EU, they got a great feudal system going on there where you cannot get a patent without spending at least 40k EUR, whereas in USA a single inventor can get it as low as 500 USD.
    - WkndTriathlete 5y ago
      Sure, the USPTO might charge $500, but the patent lawyers that will file the application for you will charge $40k - $200k.
      - DethNinja 5y ago
        You can actually do it yourself, there are lots of book out there how to navigate the patenting system. You don’t need to hire a lawyer if you spend some personal time but on the EU you don’t have that option at all.
cptaj 5y ago
Yeah, the question "do they kill innovation?" is too simplistic. They exist for a valid reason and they also have negative side effects. The current implementation has a lot of systemic problems. The ones you mention, patent trolling and length of patents might be tuned in order to optimize innovation. I worry about our political system's ability to perform this tuning operation though. Political discourse seems incapable of tackling complex issues like this where there is no good/evil dichotomy, simply a productive balance to be found.
- dantheman 5y ago
  I think the case needs to be made that they're valid - If you look at the steam engine, progress only took off after the patents expired.
  - staticassertion 5y ago
    The idea is pretty straightforward. "Little guy" invents something truly novel, investing major time into generating that invention. "Big guy" sees this after the fact, uses existing resources to steamroll little guy. Patents exist to prevent that.
    - ModernMech 5y ago
      Okay that's the idea, but do they do that today? It seems that today the more common story is: "big guy" patents everything under the sun before the fact and locks it away in a drawer, while "little guy" actually builds the thing and tries to sell it but gets crushed in the process. Or at least that's the one I hear told more often, maybe it really is the case that patents are promoting innovation. But we can't just assume it's working out like we thought it would.
      - kbenson 5y ago
        That's the story we hear often with software patents, but those are relatively new. There's a long history of patents for physical things which may be less obviously detrimental. FWIW, if I remember correctly, the reason we can even have software patents is because a hedge fund ended up trying to patent their process for categorizing or rating investments, and in their drive to patent a process as opposed to a mechanism, new law was decided. I'm being vague because I don't remember the details enough to be authoritative and don't have the time to look them up, but someone else might be prompted to. To me, I can see a benefit to physical and software patents both, but I think they have very different effects and should be handled differently. If software patents were genuinely harder to get because they had to actually be complex and novel, and also only lasted 5-10 years, I don't think we'd really have much of a problem. I don't know how to raise the bar on their complexity in a good way though.
war1025 5y ago
> I think its too easy to get a patent I'd modify that to say it's too easy for a large corporation to get a patent. I've heard quite a few acquaintances who work for large companies mention offhand that they just were awarded a patent for something or other. Meanwhile, at my tiny company, we have I think one patent and another that got hung up with the examiner due to completely unrelated things. I think we finally stopped protesting it. Patents are pay to play.
- deleted 5y ago
  [deleted]
walkedaway 5y ago
I worked in patents about 15-20 years ago. What I remember in this golden era of patent proliferation was that the US patent office, if in doubt or just by default, just issued the patent and waited for people with prior art to object. Not sure of the numbers, but I remember IBM would file by the thousands every year for every little thing. Including one for the work that the company I worked for actually did that they caught wind of and decided to beat us to the punch and file. We eventually were granted it, but it was a high legal cost to show we had the idea first.
- kevin_thibedeau 5y ago
  This is the root of the problem. The examiners have to meet a throughput quota and that creates a perverse incentive to approve garbage. The USPTO is also dependent on filing fees which adds another perverse incentive to help the trolls with their patent spam.
  - harikb 5y ago
    Trolls usually don't file patents. They usually acquire them, usually from a company close to going bankrupt. Then they sue other "medium-size" company in a jurisdiction with a friendly and corrupt judge. Even if we stopped issuing new patents today, trolls have enough fodder to survive for the next 100 years.
    - NortySpock 5y ago
      I thought patents expired 20 years from the file date? So you could only troll for ~20 years + anything manufactured using an infringing process. (so "you owe me royalties on the widget you made 10 years ago" is valid.)
- psyc 5y ago
  I once worked at a company that paid $1K to employees who got patents. Most employees (that I knew) never bothered, or only when they actually invented something. But this one manager and one of his reports formed a 2-person patent brainstorming club. They'd book a conference room regularly and spend the meeting thinking up worthless patents. As an example, one that I remember was something like "spellcheck in a context that usually doesn't have spellcheck." Others were nothing other than descriptions of products we were working on, such as "A web based interface for communicating such information from such a person to another type of person." If you looked in the meeting room, you would see these two giggling like kids, slapping the table, falling out of their chairs. They each had stacks of patent awards in their offices. Most of us had none. I am happy that they had so much fun, but that is what patents are in practice.
laurent92 5y ago
> too easy to get a patent If you make it harder, startups will have difficulties obtaining them. Patents are a way for private companies to benefit from the public enforcement. Like anything provided by the state, it can and will be taken out of its goals and used by the largest corporations to reinforce their dominance. Removing the tool would make the playing field more fair.
amelius 5y ago
I think patent applications should have a "challenge period", where anybody can come up with the same or a better solution which would invalidate the patent (and perhaps the original applicant has to pay a fee to the other party).
cyanydeez 5y ago
just wait for a copilot for patents that does everything, then just a small tweak for "novelty", then just flood the patent office.

paxys 5y ago

Too easy from the technical side, too difficult/expensive from the legal side. Solo inventors and startups working on genuinely new and interesting technology do not have the funding to hire fancy law firms, while companies like Microsoft and IBM file a dozen patents a day (not an exaggeration). It's the exact opposite of how a patent process should work.

deelowe 5y ago
And a perfect example of how regulatory capture works. I don't have a solution, but I am convinced that over time this is the end result of ANY regulation. It doesn't matter what the original intent is/was.
- dantheman 5y ago
  The answer is to not grant patents.
- wpietri 5y ago
  I look it as an evolutionary system, an arms race. Capture will happen if the regulators don't keep up. But it's possible to keep up. US financial markets have a lot of internal regulation for traders, so they're wrangling some of the most aggressive do-anything-for-a-buck people on the planet. Nonetheless, the traders are generally kept in check. I used to do tech for derivatives traders and we knew to never, ever fuck around with a market. That didn't always stop our traders, of course. We had some based in Frankfurt who hated living there. They decided they wanted to live in London, and so quietly shifted their trading terminals to our London office. This was strictly forbidden; at least at the time, the mid-90s, trading on the Deutche Terminborse was to take place on German soil and nowhere else. Eventually the regulators got suspicious and so they were standing outside ringing the bell while watching our trading activity. So one of my technical colleagues had to rent a van, load everything up, drive it 10 hours back to Frankfurt, and have it all working by the next morning. Which we did, and so avoided formal sanction, but it was close. That probably kept those traders from doing something foolish for at least another year.
  - pksebben 5y ago
    So, the traders did something explicitly forbidden and didn't get penalized for it; that doesn't sound like being "kept in check" to me. Never mind those manipulations that make it through the regulatory filter, a la mortgage securitization circa 2008.
    - wpietri 5y ago
      It was them getting kept in check, because they quickly corrected the behavior. And as far as I know, never repeated it. Explicit punishment is not the only way policing happens. Indeed, I think the most important parts happen well before that.
  - laurent92 5y ago
    > standing outside ringing the bell while watching our trading activity Do you mean ringing manually the bell of the end-of-the-day of the stock exchange? When they rang it the first time, didn’t they catch them not going out of the building?
    - wpietri 5y ago
      I mean they rang the doorbell. They could see that the traders were active, meaning that they were supposedly in the office. But the door was locked and nobody answered it.
- specialist 5y ago
  Ya, like a bureaucratic DDoS attack. > regulatory capture ... is the end result of ANY regulation. All evidence to date supports this conclusion. Can we do better? Regulations are two-party, can be distilled down to us vs them. How do we make them three party? Transmute them into trilemmas? (Tripods are more stable that bipods.) Maybe grant a seat to the parties on the receiving end, the natural antagonists to the parties being regulated. And empower them appropriately.
- CalChris 5y ago
  That isn’t what regulatory capture means. Regulatory capture has to do with industry vs public rather than big co vs little co. Regulatory capture is an economic theory that regulatory agencies may come to be dominated by the interests they regulate and not by the public interest. The result is that the agency instead acts in ways that benefit the interests it is supposed to be regulating. https://www.investopedia.com/terms/r/regulatory-capture.asp https://www.investopedia.com/terms/r/regulatory-capture.asp
  - jlawson 5y ago
    In this case, the small-co or independent inventor acts as a member of the public. It's really about established players being able to invest in controlling the regulators that are specific to them, while new players considering entering obviously don't have this advantage. Structurally it's similar to NIMBYism.
  - deelowe 5y ago
    As another commenter suggested, let's look at the data from the USPTO and see what the submission/approval ratio looks like for large cap, small cap, and independents before jumping to conclusions...
wpietri 5y ago
Yup. A friend worked for a now-extinct tech company that strongly encouraged employees to patent as much as possible. On his desk, he had one of those drinking bird toys. [1] When the head got sufficiently wet, water would drip onto his desk. He made a little celluloid collar for the bird so that excess water would get dumped back into the cup the bird was drinking from. On a lark, he wrote it up as patentable innovation. His boss thought it was funny and approved it. So did the lawyers. He ended up with one of the little plaques they gave employees for patents. And maybe a cash bonus? It was long enough ago that I forget. But apparently that's what IBM does: https://news.ycombinator.com/item?id=17835839 https://news.ycombinator.com/item?id=17835839 [1] https://en.wikipedia.org/wiki/Drinking_bird https://en.wikipedia.org/wiki/Drinking_bird
- CalChris 5y ago
  I think that's because IBM has a massive portfolio and just treats it statistically in IP cross-licensing negotiations. I had a boss at a company who said they added up theirs and IBM added up theirs, then his company wrote a check to IBM every year.
  - gyc 5y ago
    IBM also plays tricks to artificially boosts the number of patents it gets. For example, for a computer-implemented invention, a patent application will generally have a set of claims for the method that a computer performs to implement the invention and a set of claims for the computing device itself configured to perform the invention. What IBM likes to do is to split those two sets of claim into separate patent applications, so one application just claims the method and another application claims the computing device. So when most other companies would only get a single patent for a computer-implemented invention, IBM would get two patents. So this helps IBM maximize licensing revenue in the example where they're just adding up the number of patents.
  - svilen_dobrev 5y ago
    Every big corp makes such list, and measures against others, no matter what patents there are. Nearly 20 years ago, in initial bootcamp in big-corp, there was half a day course by a patent guy, and one of the warnings he gave was "be careful where you search for your new idea" - the most wellknown patent search web site then, was owned by.. IBM.
jackcosgrove 5y ago
Patents aren't all that expensive. Defending your rights in court, however...
- CalChris 5y ago
  Consequently writing a PTAB review resistant patent is expensive because you really can't defend a poor drafted vanity patent after the fact.
- DethNinja 5y ago
  That is just for the USA, patents are extremely expensive in EU, they got a great feudal system going on there where you cannot get a patent without spending at least 40k EUR, whereas in USA a single inventor can get it as low as 500 USD.
  - WkndTriathlete 5y ago
    Sure, the USPTO might charge $500, but the patent lawyers that will file the application for you will charge $40k - $200k.
    - DethNinja 5y ago
      You can actually do it yourself, there are lots of book out there how to navigate the patenting system. You don’t need to hire a lawyer if you spend some personal time but on the EU you don’t have that option at all.

cptaj 5y ago

Yeah, the question "do they kill innovation?" is too simplistic. They exist for a valid reason and they also have negative side effects. The current implementation has a lot of systemic problems. The ones you mention, patent trolling and length of patents might be tuned in order to optimize innovation. I worry about our political system's ability to perform this tuning operation though. Political discourse seems incapable of tackling complex issues like this where there is no good/evil dichotomy, simply a productive balance to be found.

dantheman 5y ago
I think the case needs to be made that they're valid - If you look at the steam engine, progress only took off after the patents expired.
- staticassertion 5y ago
  The idea is pretty straightforward. "Little guy" invents something truly novel, investing major time into generating that invention. "Big guy" sees this after the fact, uses existing resources to steamroll little guy. Patents exist to prevent that.
  - ModernMech 5y ago
    Okay that's the idea, but do they do that today? It seems that today the more common story is: "big guy" patents everything under the sun before the fact and locks it away in a drawer, while "little guy" actually builds the thing and tries to sell it but gets crushed in the process. Or at least that's the one I hear told more often, maybe it really is the case that patents are promoting innovation. But we can't just assume it's working out like we thought it would.
    - kbenson 5y ago
      That's the story we hear often with software patents, but those are relatively new. There's a long history of patents for physical things which may be less obviously detrimental. FWIW, if I remember correctly, the reason we can even have software patents is because a hedge fund ended up trying to patent their process for categorizing or rating investments, and in their drive to patent a process as opposed to a mechanism, new law was decided. I'm being vague because I don't remember the details enough to be authoritative and don't have the time to look them up, but someone else might be prompted to. To me, I can see a benefit to physical and software patents both, but I think they have very different effects and should be handled differently. If software patents were genuinely harder to get because they had to actually be complex and novel, and also only lasted 5-10 years, I don't think we'd really have much of a problem. I don't know how to raise the bar on their complexity in a good way though.

war1025 5y ago

> I think its too easy to get a patent I'd modify that to say it's too easy for a large corporation to get a patent. I've heard quite a few acquaintances who work for large companies mention offhand that they just were awarded a patent for something or other. Meanwhile, at my tiny company, we have I think one patent and another that got hung up with the examiner due to completely unrelated things. I think we finally stopped protesting it. Patents are pay to play.

deleted 5y ago
[deleted]

walkedaway 5y ago

I worked in patents about 15-20 years ago. What I remember in this golden era of patent proliferation was that the US patent office, if in doubt or just by default, just issued the patent and waited for people with prior art to object. Not sure of the numbers, but I remember IBM would file by the thousands every year for every little thing. Including one for the work that the company I worked for actually did that they caught wind of and decided to beat us to the punch and file. We eventually were granted it, but it was a high legal cost to show we had the idea first.

kevin_thibedeau 5y ago
This is the root of the problem. The examiners have to meet a throughput quota and that creates a perverse incentive to approve garbage. The USPTO is also dependent on filing fees which adds another perverse incentive to help the trolls with their patent spam.
- harikb 5y ago
  Trolls usually don't file patents. They usually acquire them, usually from a company close to going bankrupt. Then they sue other "medium-size" company in a jurisdiction with a friendly and corrupt judge. Even if we stopped issuing new patents today, trolls have enough fodder to survive for the next 100 years.
  - NortySpock 5y ago
    I thought patents expired 20 years from the file date? So you could only troll for ~20 years + anything manufactured using an infringing process. (so "you owe me royalties on the widget you made 10 years ago" is valid.)
psyc 5y ago
I once worked at a company that paid $1K to employees who got patents. Most employees (that I knew) never bothered, or only when they actually invented something. But this one manager and one of his reports formed a 2-person patent brainstorming club. They'd book a conference room regularly and spend the meeting thinking up worthless patents. As an example, one that I remember was something like "spellcheck in a context that usually doesn't have spellcheck." Others were nothing other than descriptions of products we were working on, such as "A web based interface for communicating such information from such a person to another type of person." If you looked in the meeting room, you would see these two giggling like kids, slapping the table, falling out of their chairs. They each had stacks of patent awards in their offices. Most of us had none. I am happy that they had so much fun, but that is what patents are in practice.

laurent92 5y ago

> too easy to get a patent If you make it harder, startups will have difficulties obtaining them. Patents are a way for private companies to benefit from the public enforcement. Like anything provided by the state, it can and will be taken out of its goals and used by the largest corporations to reinforce their dominance. Removing the tool would make the playing field more fair.

amelius 5y ago

I think patent applications should have a "challenge period", where anybody can come up with the same or a better solution which would invalidate the patent (and perhaps the original applicant has to pay a fee to the other party).

cyanydeez 5y ago

just wait for a copilot for patents that does everything, then just a small tweak for "novelty", then just flood the patent office.