7 ms·

Reforming the Patent System Toward a Minimalist System

71 points by phenylene 14y ago

khmel 14y ago
Patents bring the following trade-off: inventor monopoly defendence vs. block of progress\future use cases utilizing patent. So patents both are enforcing and slowing innovation. This could be fixed with with the following solution that will maximize public good. There're no good reason for 20 years patent periods in some industries with short cycle of product development, like software, mobile, cloud etc. Cleraly, after first 3-5 years patents start to be either completely useless or slowing down both patent holder's and external innovations. If company is defended by patent, there's no urgency for innovation. This is unfair advantage.
- danielweber 14y ago
  The 2-3 year wait on getting a patent issued can be an eternity in software while a competitor has ripped you off soon after you released. Anyone who has been in that case would gladly trade a term of half the length for a granting that took place twice as quickly. I think software needs a new kind of protection, that issues faster, makes it easier for other people to search, and expires sooner.
  - khmel 14y ago
    I agree
vevillas 14y ago
I just recently wrote a paper on software patents. Although we could suggest a shorter patent term, there are many practicalities in the process of granting patents that makes it an inferior solution to abolish software patents altogether. Even without patents, we still have copyrights, "dress trade" and other nuances of the legal system, before we really have a worry-free, innovative environment. God and the compilers bless the brave man to embrace such noble cause.
- deleted 14y ago
  [deleted]
rayiner 14y ago
From the blog post: "Although ending the patent system is a clean solution to all the problems induced by modern patenting, it clearly is not desirable given the importance of industries like the pharmaceutical industry. Since this industry spends on average hundreds of millions of dollars bringing to market a successful drug, pharmaceutical companies would not invest such large sums without the protection of patents (or without other benefits). Probably the best solution would be to maintain the patent system on drugs and a few other products that are expensive to innovate and cheap to copy, and eliminate patents on everything else. In particular, this means eliminating patents in the software industry, the source of much of the patent litigation and patent trolling." I generally agree with this, but I think it's a little analytically lazy. I think the Supreme Court was right to recognize that we should not just categorically ban certain kinds of patents. Instead, we should articulate the distinctions between the two industries and reformulate the patent eligibility criterion in terms of this distinction.
- eurleif 14y ago
  "expensive to innovate and cheap to copy" sounds like eligibility criteria to me.
  - jaekwon 14y ago
    Any big company can pour any large amount of money to "innovate", which will probably help them bring the product to market sooner, but that isn't justification for a temporary monopoly grant. "Cheap to copy" sounds like something to be embraced.
    - rayiner 14y ago
      The issue is that in economic terms, the amount of money required to innovate is absolutely relevant. There is no need for any incentive if the company can recoup that figure before competitors copy the invention.
      - deleted 14y ago
        [deleted]
gojomo 14y ago
Reform could also take the form of tightening the 'novelty' and 'nonobvious' requirements. For example: • independent invention should be an absolute defense for infringement, and within a certain timeframe, evidence of obviousness as well • allow a review process (perhaps when a patent is challenged) where a jury of skilled practitioners is given the same motivating problem brief and a few days to outline possible solutions. Anything they describe would be deemed 'obvious'
- rayiner 14y ago
  I think proof of independent invention should at the very least establish a presumption that the invention is not novel. The probability of a truly novel invention being independently invented within some time frame is small enough that we can assume for the purposes of a civil case that it negates novelty.
  - gojomo 14y ago
    I think independent invention speaks more to obviousness. Let's say facing a new problem in a new market, five different teams all come up with something unprecedented in the same year or two. Such an invention was definitely 'novel' to the first group, and was also 'novel' (as far as they knew) to the other four teams. But given the state of industry development, it was also 'obvious', because many of the teams that needed it all came up with it in short order. There's no "progress of the science and arts" benefit from giving an extra monopolistic reward to a team that's just a little bit early (perhaps even earlier than the invention can be deployed). There might be a social benefit from rewarding inventions that can only happen with the promise of the reward.
    - tzs 14y ago
      Keep in mind, though, that the requirement is non-obviousness to one of ordinary skill in the art. Even if more than one team comes up with the same thing in the same time frame, it might still be non-obvious if those teams were geniuses and dozens of ordinary teams had also tried to solve the problem and failed.
ajb 14y ago
Becker and Posner tend to make pairs of posts on the same subject. The OP is from Becker, here is the corresponding post from Posner: http://www.becker-posner-blog.com/2012/09/do-patent-and-copyright-law-restrict-competition-and-creativity-excessively-posner.html http://www.becker-posner-blog.com/2012/09/do-patent-and-copy...
justincpollard 14y ago
True innovation protects itself in most cases, depending upon the ease with which a third party can copy it. In general, the threshold for what constitutes innovation in software is much to low. The certain of Apple's patents in its case against Samsung provide relatively good examples of this. The "bounce-back" feature, while a nice addition to iOS, is not an innovation that warrants patent protection. Nor is the "tap to zoom" patent.
- sliverstorm 14y ago
  True innovation protects itself in most cases I feel like this needs some substantiation before you springboard off into your argument.
- rayiner 14y ago
  So there are two kinds of patents we're talking about here. One is a utility patent, the other is a design patent. Most of the patents in Apple's suit against Samsung are design patents. See: http://en.wikipedia.org/wiki/Design_patent#Comparison_to_utility_patents http://en.wikipedia.org/wiki/Design_patent#Comparison_to_uti... The purpose of a design patent isn't to protect a novel invention that took tons of R&D to develop. Rather it straddles the gap between patent law and trademark law. The purpose is to protect the functional aesthetic of a product. They are two very different things. A a feature protected by a design patent is supposed to have no functional utility. If e.g. research showed that the "bounce back" feature had the optimal visual feedback in clinical testing, that would actually go to invalidating the patent. The reason they are protected is precisely because they are so arbitrary. There is no need to use something like the "bounce back" feature other than to copy your competitor.
  - nitrogen 14y ago
    I believe the bounce-back patent used against Samsung was a utility patent.
    - rayiner 14y ago
      That's what I get for quick googling instead of reading the court docs. It doesn't really help that most of the sites reporting the suit use "design patent" and "utility patent" interchangeably. :(
pg7 14y ago
Oh, I can't wait to see how lobbyists and lawyers allow to dismantle the patent system ;-) I'd like to give some constructive critic, however. So, I propose the opposite approach. Let's make the whole system even more complex and expensive for patent holders. Maybe every patent application should be provided with a formal proof of how much specific innovation has cost. Declared cost would be verified and accepted by patent office. Consequently, the upper bound of possible damages awarded during a litigation should be set to that amount of money. Such approach should repel patent trolls twofold. First, since costs of innovation in the software industry tend to revolve around 0, litigations would not be profitable. Second, more troublesome patent application process would decrease the number of issued patents and, statistically, increase their quality, making patents less accessible and useful for patent trolls.

71 points by phenylene 14y ago

khmel 14y ago

Patents bring the following trade-off: inventor monopoly defendence vs. block of progress\future use cases utilizing patent. So patents both are enforcing and slowing innovation. This could be fixed with with the following solution that will maximize public good. There're no good reason for 20 years patent periods in some industries with short cycle of product development, like software, mobile, cloud etc. Cleraly, after first 3-5 years patents start to be either completely useless or slowing down both patent holder's and external innovations. If company is defended by patent, there's no urgency for innovation. This is unfair advantage.

danielweber 14y ago
The 2-3 year wait on getting a patent issued can be an eternity in software while a competitor has ripped you off soon after you released. Anyone who has been in that case would gladly trade a term of half the length for a granting that took place twice as quickly. I think software needs a new kind of protection, that issues faster, makes it easier for other people to search, and expires sooner.
- khmel 14y ago
  I agree

vevillas 14y ago

I just recently wrote a paper on software patents. Although we could suggest a shorter patent term, there are many practicalities in the process of granting patents that makes it an inferior solution to abolish software patents altogether. Even without patents, we still have copyrights, "dress trade" and other nuances of the legal system, before we really have a worry-free, innovative environment. God and the compilers bless the brave man to embrace such noble cause.

deleted 14y ago
[deleted]

rayiner 14y ago

From the blog post: "Although ending the patent system is a clean solution to all the problems induced by modern patenting, it clearly is not desirable given the importance of industries like the pharmaceutical industry. Since this industry spends on average hundreds of millions of dollars bringing to market a successful drug, pharmaceutical companies would not invest such large sums without the protection of patents (or without other benefits). Probably the best solution would be to maintain the patent system on drugs and a few other products that are expensive to innovate and cheap to copy, and eliminate patents on everything else. In particular, this means eliminating patents in the software industry, the source of much of the patent litigation and patent trolling." I generally agree with this, but I think it's a little analytically lazy. I think the Supreme Court was right to recognize that we should not just categorically ban certain kinds of patents. Instead, we should articulate the distinctions between the two industries and reformulate the patent eligibility criterion in terms of this distinction.

eurleif 14y ago
"expensive to innovate and cheap to copy" sounds like eligibility criteria to me.
- jaekwon 14y ago
  Any big company can pour any large amount of money to "innovate", which will probably help them bring the product to market sooner, but that isn't justification for a temporary monopoly grant. "Cheap to copy" sounds like something to be embraced.
  - rayiner 14y ago
    The issue is that in economic terms, the amount of money required to innovate is absolutely relevant. There is no need for any incentive if the company can recoup that figure before competitors copy the invention.
    - deleted 14y ago
      [deleted]

gojomo 14y ago

Reform could also take the form of tightening the 'novelty' and 'nonobvious' requirements. For example: • independent invention should be an absolute defense for infringement, and within a certain timeframe, evidence of obviousness as well • allow a review process (perhaps when a patent is challenged) where a jury of skilled practitioners is given the same motivating problem brief and a few days to outline possible solutions. Anything they describe would be deemed 'obvious'

rayiner 14y ago
I think proof of independent invention should at the very least establish a presumption that the invention is not novel. The probability of a truly novel invention being independently invented within some time frame is small enough that we can assume for the purposes of a civil case that it negates novelty.
- gojomo 14y ago
  I think independent invention speaks more to obviousness. Let's say facing a new problem in a new market, five different teams all come up with something unprecedented in the same year or two. Such an invention was definitely 'novel' to the first group, and was also 'novel' (as far as they knew) to the other four teams. But given the state of industry development, it was also 'obvious', because many of the teams that needed it all came up with it in short order. There's no "progress of the science and arts" benefit from giving an extra monopolistic reward to a team that's just a little bit early (perhaps even earlier than the invention can be deployed). There might be a social benefit from rewarding inventions that can only happen with the promise of the reward.
  - tzs 14y ago
    Keep in mind, though, that the requirement is non-obviousness to one of ordinary skill in the art. Even if more than one team comes up with the same thing in the same time frame, it might still be non-obvious if those teams were geniuses and dozens of ordinary teams had also tried to solve the problem and failed.

ajb 14y ago

Becker and Posner tend to make pairs of posts on the same subject. The OP is from Becker, here is the corresponding post from Posner: http://www.becker-posner-blog.com/2012/09/do-patent-and-copyright-law-restrict-competition-and-creativity-excessively-posner.html http://www.becker-posner-blog.com/2012/09/do-patent-and-copy...

justincpollard 14y ago

True innovation protects itself in most cases, depending upon the ease with which a third party can copy it. In general, the threshold for what constitutes innovation in software is much to low. The certain of Apple's patents in its case against Samsung provide relatively good examples of this. The "bounce-back" feature, while a nice addition to iOS, is not an innovation that warrants patent protection. Nor is the "tap to zoom" patent.

sliverstorm 14y ago
True innovation protects itself in most cases I feel like this needs some substantiation before you springboard off into your argument.
rayiner 14y ago
So there are two kinds of patents we're talking about here. One is a utility patent, the other is a design patent. Most of the patents in Apple's suit against Samsung are design patents. See: http://en.wikipedia.org/wiki/Design_patent#Comparison_to_utility_patents http://en.wikipedia.org/wiki/Design_patent#Comparison_to_uti... The purpose of a design patent isn't to protect a novel invention that took tons of R&D to develop. Rather it straddles the gap between patent law and trademark law. The purpose is to protect the functional aesthetic of a product. They are two very different things. A a feature protected by a design patent is supposed to have no functional utility. If e.g. research showed that the "bounce back" feature had the optimal visual feedback in clinical testing, that would actually go to invalidating the patent. The reason they are protected is precisely because they are so arbitrary. There is no need to use something like the "bounce back" feature other than to copy your competitor.
- nitrogen 14y ago
  I believe the bounce-back patent used against Samsung was a utility patent.
  - rayiner 14y ago
    That's what I get for quick googling instead of reading the court docs. It doesn't really help that most of the sites reporting the suit use "design patent" and "utility patent" interchangeably. :(

pg7 14y ago

Oh, I can't wait to see how lobbyists and lawyers allow to dismantle the patent system ;-) I'd like to give some constructive critic, however. So, I propose the opposite approach. Let's make the whole system even more complex and expensive for patent holders. Maybe every patent application should be provided with a formal proof of how much specific innovation has cost. Declared cost would be verified and accepted by patent office. Consequently, the upper bound of possible damages awarded during a litigation should be set to that amount of money. Such approach should repel patent trolls twofold. First, since costs of innovation in the software industry tend to revolve around 0, litigations would not be profitable. Second, more troublesome patent application process would decrease the number of issued patents and, statistically, increase their quality, making patents less accessible and useful for patent trolls.