7 ms·

EFF: Tell Congress: We Can't Afford More Bad Patents

140 points by camkego 3y ago

ramshanker 3y ago
I am of the opinion that instead of letting legaleses define good/bad patent, we should let the economics work it out. Mandate patent filers to declare a public flat license fee . Along with annual recurring patent-maintenance tax to government as some X% of that declared fee. Market will decide which patents are worth maintaining for 20 years, and government get proportional revenue as well.
- cjfd 3y ago
  I declare that I patented human breathing. Every human who is breathing is to pay me the, really very cheap, fee of 1 cent per day. O there is a tax? So now I only get half a cent per day per living being.
  - gruez 3y ago
    You probably joking, but that wouldn't work because of https://en.wikipedia.org/wiki/Prior_art https://en.wikipedia.org/wiki/Prior_art. All the "bad" patents were probably novel at the time they filed. That's not the issue. The issue is that they're for arguably obvious stuff like "[x] but on internet/phone" that the sibling commenter is talking about.
    - cjfd 3y ago
      Read the comment that I am responding to. 'letting legalese define good/bad patent, we should let the economics work it out.' If 'legalese' cannot define good/bad patent anymore, there is nothing stopping such a silly patent that I propose.
- marcjuul 3y ago
  While that's an interesting thought experiment and there are definitely good reasons to make it more difficult to sit on an unused patent, it's already difficult enough for lone inventors and small organizations to get and keep a patent. This would require everyone to either have a lot of money up front to pay the maintenance tax or keep the license fees low thus ensuring that they will never have a lot of money.
- fyrn_ 3y ago
  That puts all the power over patents in the hands of those with deep pockets. They would be able to directly pay to prevent competition. It's insane to eliminate limits on what could be patented while doing that. They could fund the keep-away of basic things like "ordering x on your phone" with the proceeds from being the only actor allowed to do that. Fundamentally exploitable system incentives.
- CobrastanJorji 3y ago
  Your solution seems to be addressed at solving a "there are too many patents because they're cheap to acquire" problem, but that's not a problem. Patents are expensive to acquire already. Bad patents don't lack value. Rather, they offer insane value for little effort if you guess the right thing to patent. Look at the EFF's example. Say it's 1987, you've been playing with AOL for a bit, and you realize that someone might want to use a computer to do stuff like ordering pizza deliveries. You file a patent where your "invention" is "okay it's like pizza ordering on the phone but you do it with a computer instead." Then you pass it through a lawyer who draws up some diagrams to make it look like it's an invention, and boom, patent US4797818A is granted and you now control the entire online food delivery ecosystem until 2007. Oh, but then someone else says "wait, what if the customer does that but USES A PHONE." Well, now they own that for 20 years, so now you both can arbitrarily limit this space. Great. Oh, but now swomeone says "oh, but what if you do this and also the food is displayed IN CATEGORIES!" Well now he's got a patent, too. It's madness. The problem isn't that it's too cheap to acquire and maintain these. The problem is that these are so obvious that they are no longer inventions.
  - throwaway48476 3y ago
    One issue is that you don't have to have a prototype to get a patent. Except perpetual motion machines, too many people tried.
    - gruez 3y ago
      For the example given though, it doesn't seem too hard to prototype a "order pizza using phone" app. It might add a 10k expense or whatever to the patent, but that's small relative to how much money you can extract from all pizza chains in the US.
      - throwaway48476 3y ago
        My assumption is if you had ro have a prototype it would be more likely to discover prior art.
- Timwi 3y ago
  Or we could just abolish the concept of patents entirely. All they do is stifle progress so that somebody can make money at an unfair advantage to everyone else.
  - gruez 3y ago
    >All they do is stifle progress so that somebody can make money at an unfair advantage to everyone else. You don't see any problem with pouring huge sums of money into developing something, only for a competitor to copy your idea and undercut you? As an inventor, why would I bother putting in all that effort knowing that would happen?
    - Timwi 3y ago
      This is such egocentric/selfish thinking. I wish to live in a society which “pours” adequate sums of money into developing things for the benefit of all, not leaving it up to individuals like you who are in it only to benefit themselves.
    - johngladtj 3y ago
      Same reason you would do anything else. Because regardless of whether you have a monopoly, you can still make money by solving people's problems
      - wizzwizz4 3y ago
        If you're going to invest in making something possible, you need to recover at least the value of the resources you expended in doing so. Otherwise, you'll have no resources left for the next investment. Copyright and patents are capitalism's attempt to make investments possible in a world where copying is cheap, and while they're deeply flawed, that doesn't change the fact that investments do need to be returned. (Don't get me started on the stock market: that has nothing to do with actual investment.)
        gruez 3y ago
        >(Don't get me started on the stock market: that has nothing to do with actual investment.) Secondary markets support "actual investment" by allowing early investors to cash out. An investment is far more attractive to you if you know you can offload it to someone else and get the net present value immediately, rather than waiting years/decades for it to pay out. For instance, if a nuclear plant takes will last 80 years but will take 50 years to break even, why would a 40 year old bother to invest? By the time it breaks even you'd be long dead.
- Ygg2 3y ago
  Make sure keeping a patent is prohibitively expensive. Start with some trivial price y, like say a dollar. Then make every year cost equal to `(y*x)!` where x is the year/month/time period and `!` is the factorial function. Any patent worth the upkeep for first 10 years is probably worth keeping it.
  - gruez 3y ago
    How does this work for patents like drugs or whatever, which are very expensive to develop/bring to market?
    - mschuster91 3y ago
      Medical r&d should be done by the government anyway. There's no reason to allow pharma companies to extract untold billions of dollars in profit from the economy every year when the involved "research" is either trivial (such as with the insulin racket) or financed by the government anyway.
      - gruez 3y ago
        >when the involved "research" is either trivial (such as with the insulin racket) source that "the insulin racket" was "trivial" to research? Yes, insulin was discovered more than a century ago, but that's not the thing that's patented today. All the expensive insulin are enhanced versions that are better in some way (eg. lasts longer, reacts sooner). If you want the old, crappy, and non-patented kind, you can get it at walmart for less than $25. >financed by the government anyway. Basic research that the government finances doesn't cover the billions of dollars needed to bring the drug to market.
    - themoonisachees 3y ago
      Then it works as intended, the pharma company at first enjoys a cheap patent, but gatekeeping the drug for years, until way after the r&d costs are recouped from sales, becomes prohibitively expensive. If the drug doesn't sell a lot and is never profitable, then the patent gets dropped earlier to avoid sinking more costs. If the drug cures cancer and makes millions, the company can easily recoup its cost up until the upkeep is too much, at which point surely it would be better for society that the drug be open for everyone? Pharma companies are massively profitable, the argument of "think of the poor pharma companies doing r&d and their costs uwu" isn't really valid.
- vlovich123 3y ago
  But some companies evolve on top of their patents and use them to obtain a competitive moat over a period of time to outcompete larger players. If the patents were available for a flat license fee, you’d penalize patent innovation by smaller entities as bigger entities could pay the flat license fee and copy the patent. So smaller players will either just keep it a trade secret and hope that no one finds out (which theoretically hurts society due to lack of published secrets) or have to hope they can monetize their patent super fast & find someone with really deep pockets to fund that work. And as mentioned, patents are super expensive. From talking to some people it varies significantly depending on your details but probably starting is ~10-20k per patent.
anotherbadlogin 3y ago
Abolish software and "business-method" patents. Until that's done, patent "reform" is a sham.
- adrian_b 3y ago
  What is the most egregious about software patents is that they work only because in the first few decades of software development no patents could be obtained for software. Anyone who patents now some kind of software algorithm is able to write any practical implementation of the patented algorithm only by incorporating many techniques that have been invented earlier, but they have never been patented, even if typically they would have had much better reasons to be granted a patent than the newly patented algorithm. If it would have been possible to patent software since the beginning, the software industry could never have existed, due to mutual destruction that would have blocked any development.
- johnnyanmac 3y ago
  why shouldn't software be patentable?
  - themoonisachees 3y ago
    Because software is incredibly elastic, which heavily blurs the line on what is and isn't a new invention. It is also nebulous, which means that it's "easy" to obtain a patent for a system that seems reasonable at first, but then decide "actually I meant all of this other stuff too" and on paper the patent does apply to all the other stuff too, because short of submitting the exact code to be patented you pretty much always get to do this.
- Ekaros 3y ago
  On some level I think some things make sense to patent. And they are more algorithms. Let's say compression of file or image or stream. Sure go ahead and give those a patent. If they are superior someone will pay license fee. On other hand idea of compressing something should not be patentable. If someone can read few lines summary of patent and come up with solution that does same thing, but might not be interoperable no you should not get patent.
ExpectedResult 3y ago
[dead]
TanDaven 3y ago
[flagged]
- blagie 3y ago
  FYI: Spambot.
  - fnordian_slip 3y ago
    Yeah, but a really absurd implementation of one. Taking another comment on the thread (or from previous threads about the same link) is rather common on Reddit, and works there because of the sheer number of comments. But referencing the comment you're copying? I've never seen that before. But probably just lazyness in the prompt.
    - blagie 3y ago
      As this post first went up, it actually wasn't bad. If you didn't look at timestamps or similar, it looked like, to give an analogy: I post: "Paul Graham argues we should do [x]" with a link to their blog post. Shortly thereafter, Paul shows up, and makes the same argument in their post. It had an uncanny coincidence feel, rather than a bot one. But I suspect the prompt was something like "summarize all the posts" and there was only one.
blagie 3y ago
Personally, I would: 1) Limit the number of patents granted every year. Patents worked fine 100 years ago, when there were fewer of them. The standards for things like "non-obvious" should increase to keep a cap. 2) Ban patents on anything which only became possible in the past ≈10 years for reasons unrelated to the filer. E.g. no patents on anything which requires ChatGPT until ≈2030, so there is time for prior art to build up and to learn what's obvious. 3) Change patent duration by domain. 20 year software patents make no sense (5 year ones seem okay). 5 year patents on e.g. aerospace seem to make no sense (20 year ones seem okay). 4) Make an open process where anyone can cheaply and easily attach prior art to a patent and try to invalidate it. 5) First-to-invent / first-to-file makes no sense, as it seems that if two people invented the same thing at the same time, that should set a strong presumption of "obvious." If two people file for the same patent, unless one is very clearly first in all respects, each should act as prior art for the other.
- vladms 3y ago
  You remind me of https://xkcd.com/592/ https://xkcd.com/592/ For every point, you have to take a subjective decision that is in no way trivial. 1) Additionally to what happens today now you need to compare patents (how would you increase the cap for non obvious if you can't say A is more non obvious than B) 2) Additionally to what happens today now you need to decide if something was possible 9 years ago. Our search tools are not that great at "present me the image of 9 years ago" and even then not everything is public, etc. 3) Additionally to what happens today now you will have same patent applied to multiple domains with small variations. 4) Yet another process, which now happens in court if someone thinks the patent must be defended (a granted patent does not mean it can not be later invalidated) 5) How do you decide very clearly first ? No improvement versus today. I do agree with you though that the current system is not ideal. But a simple change like reduce to 10 years the duration might be the best next step (and while I like 5 years idea, making big jumps has more chance of push-backs from invested actors)
  - sebstefan 3y ago
    I thought you'd be linking to 793 https://xkcd.com/793/ https://xkcd.com/793/
mk89 3y ago
I was reading somewhere (forbes?) that more than 90% patents are anyways useless. Most patents are to scare people like the average Joe that opens up a company and needs to be careful about a whole bunch of things. In reality, competition is so brutal that nobody gives a damn - and at very high levels, they will find a way out. Plus, to if we knew all the patents existing, there would be no new companies - you can't patent obvious stuff, yet they do it. Especially in our industry, we could have a better life without a lot of patents - mostly trivial stuff which shows how stupid our system is and why countries outside our system laugh at us. Hard-core stuff like covid vaccines and unique innovations which outside countries feel cybercrime is worth doing - that's probably the stuff you want to create a patent for. Although I have my own ethical view that vaccines and health-related discoveries should be open, but yeah, that's another topic. The rest is literally garbage that has to feed a broken system for the sake of keeping the system alive. USA is in some cases really worse than EU countries in terms of modernizing things.
Xelbair 3y ago
The core idea of patent was to protect inventors from richer entities stealing their work and mass producing it. Patents nowadays are used by rich entities as barriers to entry to industry. The whole system is broken.
lp4vn 3y ago
I think that patents should only be enforceable if there is a commercialy product or service using it in the interval of maybe 5 years since the patent was registered. People making money by buying patents and suing companies is downright evil.
deleted 3y ago
[deleted]

140 points by camkego 3y ago

I am of the opinion that instead of letting legaleses define good/bad patent, we should let the economics work it out. Mandate patent filers to declare a public flat license fee . Along with annual recurring patent-maintenance tax to government as some X% of that declared fee. Market will decide which patents are worth maintaining for 20 years, and government get proportional revenue as well.

cjfd 3y ago
I declare that I patented human breathing. Every human who is breathing is to pay me the, really very cheap, fee of 1 cent per day. O there is a tax? So now I only get half a cent per day per living being.
- gruez 3y ago
  You probably joking, but that wouldn't work because of https://en.wikipedia.org/wiki/Prior_art https://en.wikipedia.org/wiki/Prior_art. All the "bad" patents were probably novel at the time they filed. That's not the issue. The issue is that they're for arguably obvious stuff like "[x] but on internet/phone" that the sibling commenter is talking about.
  - cjfd 3y ago
    Read the comment that I am responding to. 'letting legalese define good/bad patent, we should let the economics work it out.' If 'legalese' cannot define good/bad patent anymore, there is nothing stopping such a silly patent that I propose.
marcjuul 3y ago
While that's an interesting thought experiment and there are definitely good reasons to make it more difficult to sit on an unused patent, it's already difficult enough for lone inventors and small organizations to get and keep a patent. This would require everyone to either have a lot of money up front to pay the maintenance tax or keep the license fees low thus ensuring that they will never have a lot of money.
fyrn_ 3y ago
That puts all the power over patents in the hands of those with deep pockets. They would be able to directly pay to prevent competition. It's insane to eliminate limits on what could be patented while doing that. They could fund the keep-away of basic things like "ordering x on your phone" with the proceeds from being the only actor allowed to do that. Fundamentally exploitable system incentives.
CobrastanJorji 3y ago
Your solution seems to be addressed at solving a "there are too many patents because they're cheap to acquire" problem, but that's not a problem. Patents are expensive to acquire already. Bad patents don't lack value. Rather, they offer insane value for little effort if you guess the right thing to patent. Look at the EFF's example. Say it's 1987, you've been playing with AOL for a bit, and you realize that someone might want to use a computer to do stuff like ordering pizza deliveries. You file a patent where your "invention" is "okay it's like pizza ordering on the phone but you do it with a computer instead." Then you pass it through a lawyer who draws up some diagrams to make it look like it's an invention, and boom, patent US4797818A is granted and you now control the entire online food delivery ecosystem until 2007. Oh, but then someone else says "wait, what if the customer does that but USES A PHONE." Well, now they own that for 20 years, so now you both can arbitrarily limit this space. Great. Oh, but now swomeone says "oh, but what if you do this and also the food is displayed IN CATEGORIES!" Well now he's got a patent, too. It's madness. The problem isn't that it's too cheap to acquire and maintain these. The problem is that these are so obvious that they are no longer inventions.
- throwaway48476 3y ago
  One issue is that you don't have to have a prototype to get a patent. Except perpetual motion machines, too many people tried.
  - gruez 3y ago
    For the example given though, it doesn't seem too hard to prototype a "order pizza using phone" app. It might add a 10k expense or whatever to the patent, but that's small relative to how much money you can extract from all pizza chains in the US.
    - throwaway48476 3y ago
      My assumption is if you had ro have a prototype it would be more likely to discover prior art.
Timwi 3y ago
Or we could just abolish the concept of patents entirely. All they do is stifle progress so that somebody can make money at an unfair advantage to everyone else.
- gruez 3y ago
  >All they do is stifle progress so that somebody can make money at an unfair advantage to everyone else. You don't see any problem with pouring huge sums of money into developing something, only for a competitor to copy your idea and undercut you? As an inventor, why would I bother putting in all that effort knowing that would happen?
  - Timwi 3y ago
    This is such egocentric/selfish thinking. I wish to live in a society which “pours” adequate sums of money into developing things for the benefit of all, not leaving it up to individuals like you who are in it only to benefit themselves.
  - johngladtj 3y ago
    Same reason you would do anything else. Because regardless of whether you have a monopoly, you can still make money by solving people's problems
    - wizzwizz4 3y ago
      If you're going to invest in making something possible, you need to recover at least the value of the resources you expended in doing so. Otherwise, you'll have no resources left for the next investment. Copyright and patents are capitalism's attempt to make investments possible in a world where copying is cheap, and while they're deeply flawed, that doesn't change the fact that investments do need to be returned. (Don't get me started on the stock market: that has nothing to do with actual investment.)
      - gruez 3y ago
        >(Don't get me started on the stock market: that has nothing to do with actual investment.) Secondary markets support "actual investment" by allowing early investors to cash out. An investment is far more attractive to you if you know you can offload it to someone else and get the net present value immediately, rather than waiting years/decades for it to pay out. For instance, if a nuclear plant takes will last 80 years but will take 50 years to break even, why would a 40 year old bother to invest? By the time it breaks even you'd be long dead.
Ygg2 3y ago
Make sure keeping a patent is prohibitively expensive. Start with some trivial price y, like say a dollar. Then make every year cost equal to `(y*x)!` where x is the year/month/time period and `!` is the factorial function. Any patent worth the upkeep for first 10 years is probably worth keeping it.
- gruez 3y ago
  How does this work for patents like drugs or whatever, which are very expensive to develop/bring to market?
  - mschuster91 3y ago
    Medical r&d should be done by the government anyway. There's no reason to allow pharma companies to extract untold billions of dollars in profit from the economy every year when the involved "research" is either trivial (such as with the insulin racket) or financed by the government anyway.
    - gruez 3y ago
      >when the involved "research" is either trivial (such as with the insulin racket) source that "the insulin racket" was "trivial" to research? Yes, insulin was discovered more than a century ago, but that's not the thing that's patented today. All the expensive insulin are enhanced versions that are better in some way (eg. lasts longer, reacts sooner). If you want the old, crappy, and non-patented kind, you can get it at walmart for less than $25. >financed by the government anyway. Basic research that the government finances doesn't cover the billions of dollars needed to bring the drug to market.
  - themoonisachees 3y ago
    Then it works as intended, the pharma company at first enjoys a cheap patent, but gatekeeping the drug for years, until way after the r&d costs are recouped from sales, becomes prohibitively expensive. If the drug doesn't sell a lot and is never profitable, then the patent gets dropped earlier to avoid sinking more costs. If the drug cures cancer and makes millions, the company can easily recoup its cost up until the upkeep is too much, at which point surely it would be better for society that the drug be open for everyone? Pharma companies are massively profitable, the argument of "think of the poor pharma companies doing r&d and their costs uwu" isn't really valid.
vlovich123 3y ago
But some companies evolve on top of their patents and use them to obtain a competitive moat over a period of time to outcompete larger players. If the patents were available for a flat license fee, you’d penalize patent innovation by smaller entities as bigger entities could pay the flat license fee and copy the patent. So smaller players will either just keep it a trade secret and hope that no one finds out (which theoretically hurts society due to lack of published secrets) or have to hope they can monetize their patent super fast & find someone with really deep pockets to fund that work. And as mentioned, patents are super expensive. From talking to some people it varies significantly depending on your details but probably starting is ~10-20k per patent.

anotherbadlogin 3y ago

Abolish software and "business-method" patents. Until that's done, patent "reform" is a sham.

adrian_b 3y ago
What is the most egregious about software patents is that they work only because in the first few decades of software development no patents could be obtained for software. Anyone who patents now some kind of software algorithm is able to write any practical implementation of the patented algorithm only by incorporating many techniques that have been invented earlier, but they have never been patented, even if typically they would have had much better reasons to be granted a patent than the newly patented algorithm. If it would have been possible to patent software since the beginning, the software industry could never have existed, due to mutual destruction that would have blocked any development.
johnnyanmac 3y ago
why shouldn't software be patentable?
- themoonisachees 3y ago
  Because software is incredibly elastic, which heavily blurs the line on what is and isn't a new invention. It is also nebulous, which means that it's "easy" to obtain a patent for a system that seems reasonable at first, but then decide "actually I meant all of this other stuff too" and on paper the patent does apply to all the other stuff too, because short of submitting the exact code to be patented you pretty much always get to do this.
Ekaros 3y ago
On some level I think some things make sense to patent. And they are more algorithms. Let's say compression of file or image or stream. Sure go ahead and give those a patent. If they are superior someone will pay license fee. On other hand idea of compressing something should not be patentable. If someone can read few lines summary of patent and come up with solution that does same thing, but might not be interoperable no you should not get patent.

ExpectedResult 3y ago

[dead]

TanDaven 3y ago

[flagged]

blagie 3y ago
FYI: Spambot.
- fnordian_slip 3y ago
  Yeah, but a really absurd implementation of one. Taking another comment on the thread (or from previous threads about the same link) is rather common on Reddit, and works there because of the sheer number of comments. But referencing the comment you're copying? I've never seen that before. But probably just lazyness in the prompt.
  - blagie 3y ago
    As this post first went up, it actually wasn't bad. If you didn't look at timestamps or similar, it looked like, to give an analogy: I post: "Paul Graham argues we should do [x]" with a link to their blog post. Shortly thereafter, Paul shows up, and makes the same argument in their post. It had an uncanny coincidence feel, rather than a bot one. But I suspect the prompt was something like "summarize all the posts" and there was only one.

blagie 3y ago

Personally, I would: 1) Limit the number of patents granted every year. Patents worked fine 100 years ago, when there were fewer of them. The standards for things like "non-obvious" should increase to keep a cap. 2) Ban patents on anything which only became possible in the past ≈10 years for reasons unrelated to the filer. E.g. no patents on anything which requires ChatGPT until ≈2030, so there is time for prior art to build up and to learn what's obvious. 3) Change patent duration by domain. 20 year software patents make no sense (5 year ones seem okay). 5 year patents on e.g. aerospace seem to make no sense (20 year ones seem okay). 4) Make an open process where anyone can cheaply and easily attach prior art to a patent and try to invalidate it. 5) First-to-invent / first-to-file makes no sense, as it seems that if two people invented the same thing at the same time, that should set a strong presumption of "obvious." If two people file for the same patent, unless one is very clearly first in all respects, each should act as prior art for the other.

vladms 3y ago
You remind me of https://xkcd.com/592/ https://xkcd.com/592/ For every point, you have to take a subjective decision that is in no way trivial. 1) Additionally to what happens today now you need to compare patents (how would you increase the cap for non obvious if you can't say A is more non obvious than B) 2) Additionally to what happens today now you need to decide if something was possible 9 years ago. Our search tools are not that great at "present me the image of 9 years ago" and even then not everything is public, etc. 3) Additionally to what happens today now you will have same patent applied to multiple domains with small variations. 4) Yet another process, which now happens in court if someone thinks the patent must be defended (a granted patent does not mean it can not be later invalidated) 5) How do you decide very clearly first ? No improvement versus today. I do agree with you though that the current system is not ideal. But a simple change like reduce to 10 years the duration might be the best next step (and while I like 5 years idea, making big jumps has more chance of push-backs from invested actors)
- sebstefan 3y ago
  I thought you'd be linking to 793 https://xkcd.com/793/ https://xkcd.com/793/

mk89 3y ago

I was reading somewhere (forbes?) that more than 90% patents are anyways useless. Most patents are to scare people like the average Joe that opens up a company and needs to be careful about a whole bunch of things. In reality, competition is so brutal that nobody gives a damn - and at very high levels, they will find a way out. Plus, to if we knew all the patents existing, there would be no new companies - you can't patent obvious stuff, yet they do it. Especially in our industry, we could have a better life without a lot of patents - mostly trivial stuff which shows how stupid our system is and why countries outside our system laugh at us. Hard-core stuff like covid vaccines and unique innovations which outside countries feel cybercrime is worth doing - that's probably the stuff you want to create a patent for. Although I have my own ethical view that vaccines and health-related discoveries should be open, but yeah, that's another topic. The rest is literally garbage that has to feed a broken system for the sake of keeping the system alive. USA is in some cases really worse than EU countries in terms of modernizing things.

Xelbair 3y ago

The core idea of patent was to protect inventors from richer entities stealing their work and mass producing it. Patents nowadays are used by rich entities as barriers to entry to industry. The whole system is broken.

lp4vn 3y ago

I think that patents should only be enforceable if there is a commercialy product or service using it in the interval of maybe 5 years since the patent was registered. People making money by buying patents and suing companies is downright evil.

deleted 3y ago

[deleted]