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The lack of an independent invention defense (or some variation of this) is pretty much 80% of what's wrong with patent law in my opinion. A sampling of the iss

The lack of an independent invention defense (or some variation of this) is pretty much 80% of what's wrong with patent law in my opinion. A sampling of the issues an independent invention addresses: * Obviousness. Patents are required to be non-obvious to a "person holding ordinary skill in the art", but obviousness is highly subjective and difficult to assess (especially for a non-technical jury). In contrast, evaluating whether something was independently invented, while not necessarily simple, is a more objective test. * Utility. One of the rationales behind the patent system is that we want to encourage inventors to share their ideas with the world instead of just keeping them secret for as long as possible. While the patent system requires publication of the invention, it doesn't require publication in a manner that's particularly useful. If you could only assert patents against people actually using them, then you would have a strong incentive to make them useful (e.g. source code). * Supply and Demand. The current system grants a flat 20 years to each patented invention, regardless of how difficult or expensive it was to invent. Recognizing independent invention creates the opportunity for a more flexible system. Inventions that are hard to reproduce independently are more valuable to society and should enjoy a longer term than easier ones. The obvious problem with all of the above of course is how feasible it is to assess whether something was invented "independently". I've addressed that to some degree in this blog post (http://www.techdirt.com/articles/20121011/14171220681/yes-independent-invention-defense-patents-is-completely-feasible.shtml http://www.techdirt.com/articles/20121011/14171220681/yes-in...), but I admit it's a hard problem. EDIT: Typos

eru 13y ago
I mostly agree. Though, you'd get some interesting reverse engineering related problems. Ie look at the patent, come up with a problem that would make this patent obvious, lock some engineers in a sealed room with the problem, and wait for something like the patent to fall out. Was that independent invention, then?
- andrewfong 13y ago
  Probably not, although you could write the rules in a way that avoids this I think -- e.g. the knowledge of the person who looks at the patent is imparted to the engineers because they're all part of the same organization.
  - TeMPOraL 13y ago
    You could probably work around this by e.g. introducing enough layers of separation between engineers and the person who read the patent/formulated the problem. It would be an interesting form of... knowledge laundering? ;).
cperciva 13y ago
evaluating whether something was independently invented, while not necessarily simple, is a more a objective test Only if you take a very generous interpretation of "independent". For an reinvention to be truly independent, the reinventor would not only need to not have read about the original invention, but also to have not read about anything inspired by the original invention, and not talked to anyone who read about anything inspired by the original invention, etc.
- andrewfong 13y ago
  Right, independence isn't binary. There are definitely degrees of dependence. But it's more objective than "obviousness" at least. Obviousness is also non-binary, and because the jury must assess obviousness from a "person holding ordinary skill in the arts", there are additional questions as to what constitutes "ordinary skill" and what constitutes the requisite "art".
Hermel 13y ago
A much simpler solution would be adjusting the expiration of IT-patents. The patents in this case are from 1996 and expiring in 2016. If the term for IT patents was reduced to 10 years, we would have many fewer problems.
- andrewfong 13y ago
  Fewer problems, but still a pain. If you independently come up with something one year in IT after the original patent holder, that's still nine years of suck.
lifeisstillgood 13y ago
Cigarette companies don't get those kind of super-sized judgements against them, gun manufacturers don't. Why the hell should Google? My favourite part is just how good the Microsoft lawyers are - "we will pay 5% of whatever Google pays" is an incredibly good deal and shafts Google quite nicely at the same time. And anyway, isn't this really obvious - to anyone? I have scanned the patents referenced and frankly I don't see any algorithm that is not "return information relevant to the search term presented, and mark the users profile if they liked it" No implementation details, which frankly seems to be the whole difference in software vs hardware. Edit: my calculation ignored US only
- zimpenfish 13y ago
  Cigarette companies do - http://en.wikipedia.org/wiki/Tobacco_Master_Settlement_Agreement http://en.wikipedia.org/wiki/Tobacco_Master_Settlement_Agree... "the original participating manufacturers (OPM) agreed to pay a minimum of $206 billion over the first twenty-five years of the agreement" - 4 companies, 25 years, works out at $2.1bn a year each. 10x more than the article thinks Google will pay out...
  - lifeisstillgood 13y ago
    Standing, corrected, thanks :-)
- reader5000 13y ago
  Gun manufacturers/dealers are protected from civil liability by unconstitutional legislation.
reader5000 13y ago
This is the core problem. The probability of two independent "inventors" (i.e., software engineers) discovering a similar solution is very high. Before software engineering, the probability of this happening may very well have been low enough to where nobody cared. But if you're writing code, you are relying on and creating thousands of "inventions" a day. To "claim" one of those inventions so that nobody else can use it is absurd. The law just doesn't get that yet, which is weird, because big tech companies have been getting burned by it for decades now. I guess they just figure the benefits>costs for them, and when peons get screwed, who cares?
zanny 13y ago
I'd argue you'd get more economic benefit abolishing patents entirely (not just the software ones, I mean the ones on reproducing someone elses car or gas furnace). You pay a cost in a loss of investment valuation towards invention because it is less economically beneficial if you can't have a monopoly on your patented good, but you benefit economically by letting new inventions reach natural price equilibrium immediately, and the spread of new inventions would propagate more inventions, even without a major profit motive - you still benefit being "first out the door" on a new idea. Which we see all the time in software, and then run into this problem where first out the door has already made a bunch but is now suing me for trying to do something even remotely in the same problem domain because I see demand there, but I won't be able to meet it because I'm artificially locked out of that market. That applies to all economic domains. Patents worked back when it was extremely hard to sell your goods to its entire market, because you were either distance limited, communication limited, or production rate limited. In the first two situations someone could just take your idea, set up half way across the country, and made all the returns. Today, I can invent anything I want and have it on ebay overnight and ship it anywhere in the world. I can advertise on most major ad services if I want, with an audience of the entire first world. The only limiting factor for me is demand, but that just means I have to be safe when bringing inventions to market, but it is good for the economy overall because it means if I can't meet demand, someone else will pick up the slack. It is still, like I said, advantageous to the first to market with an idea, enough so that I wouldn't predict much of a drop in novel ideas. Like I said, I would expect more if technology and designs were more open and people could cheaply iterate and extend past concepts more readily.
- andrewfong 13y ago
  Not necessarily opposed, but there are a couple areas where this might be a net loss absent other adjustments. Pharmaceuticals would be the obvious one -- they require a large upfront research cost, copying is trivial, and the FDA approval process erodes first-to-market advantages.
  - Guvante 13y ago
    Pharmaceuticals would be devastated. While there are externalities that need to be solved around our production of drugs, the patent system is a good thing overall for them. No one spends $1 billion to make a drug if anyone can copy it simply. Additionally there are international problems related to abolishing patents.
Glyptodon 13y ago
I don't see why independent invention wouldn't lead to a legal assumption of obviousness. Independent invention seems like incredibly clear cut proof of obviousness to me, anyway.
- andrewfong 13y ago
  The issue is: obvious to whom? Both Newton and Leibniz independently invented* Calculus at about the same time. That may mean Calculus was obvious to Newton and Leibniz (and it may very well have been obvious to anyone in that particular community of mathematician), but it certainly wasn't obvious to the average mathematician at the time. * More like discovered (don't want to imply math is patentable), but the point remains the same.
gcb0 13y ago
technically, it is pretty simple and effective. If several people would claim independent invention, it is obviously a statement about obviousness. So the patent would already be invalid under the current law. Now, since everyone involved in patents, they don't want to interpret the law that way. So there is a non-written agreement that no one will go that route. and that is idiotic.

eru 13y ago

I mostly agree. Though, you'd get some interesting reverse engineering related problems. Ie look at the patent, come up with a problem that would make this patent obvious, lock some engineers in a sealed room with the problem, and wait for something like the patent to fall out. Was that independent invention, then?

andrewfong 13y ago
Probably not, although you could write the rules in a way that avoids this I think -- e.g. the knowledge of the person who looks at the patent is imparted to the engineers because they're all part of the same organization.
- TeMPOraL 13y ago
  You could probably work around this by e.g. introducing enough layers of separation between engineers and the person who read the patent/formulated the problem. It would be an interesting form of... knowledge laundering? ;).

cperciva 13y ago

evaluating whether something was independently invented, while not necessarily simple, is a more a objective test Only if you take a very generous interpretation of "independent". For an reinvention to be truly independent, the reinventor would not only need to not have read about the original invention, but also to have not read about anything inspired by the original invention, and not talked to anyone who read about anything inspired by the original invention, etc.

andrewfong 13y ago
Right, independence isn't binary. There are definitely degrees of dependence. But it's more objective than "obviousness" at least. Obviousness is also non-binary, and because the jury must assess obviousness from a "person holding ordinary skill in the arts", there are additional questions as to what constitutes "ordinary skill" and what constitutes the requisite "art".

Hermel 13y ago

A much simpler solution would be adjusting the expiration of IT-patents. The patents in this case are from 1996 and expiring in 2016. If the term for IT patents was reduced to 10 years, we would have many fewer problems.

andrewfong 13y ago
Fewer problems, but still a pain. If you independently come up with something one year in IT after the original patent holder, that's still nine years of suck.

lifeisstillgood 13y ago

Cigarette companies don't get those kind of super-sized judgements against them, gun manufacturers don't. Why the hell should Google? My favourite part is just how good the Microsoft lawyers are - "we will pay 5% of whatever Google pays" is an incredibly good deal and shafts Google quite nicely at the same time. And anyway, isn't this really obvious - to anyone? I have scanned the patents referenced and frankly I don't see any algorithm that is not "return information relevant to the search term presented, and mark the users profile if they liked it" No implementation details, which frankly seems to be the whole difference in software vs hardware. Edit: my calculation ignored US only

zimpenfish 13y ago
Cigarette companies do - http://en.wikipedia.org/wiki/Tobacco_Master_Settlement_Agreement http://en.wikipedia.org/wiki/Tobacco_Master_Settlement_Agree... "the original participating manufacturers (OPM) agreed to pay a minimum of $206 billion over the first twenty-five years of the agreement" - 4 companies, 25 years, works out at $2.1bn a year each. 10x more than the article thinks Google will pay out...
- lifeisstillgood 13y ago
  Standing, corrected, thanks :-)
reader5000 13y ago
Gun manufacturers/dealers are protected from civil liability by unconstitutional legislation.

reader5000 13y ago

This is the core problem. The probability of two independent "inventors" (i.e., software engineers) discovering a similar solution is very high. Before software engineering, the probability of this happening may very well have been low enough to where nobody cared. But if you're writing code, you are relying on and creating thousands of "inventions" a day. To "claim" one of those inventions so that nobody else can use it is absurd. The law just doesn't get that yet, which is weird, because big tech companies have been getting burned by it for decades now. I guess they just figure the benefits>costs for them, and when peons get screwed, who cares?

zanny 13y ago

I'd argue you'd get more economic benefit abolishing patents entirely (not just the software ones, I mean the ones on reproducing someone elses car or gas furnace). You pay a cost in a loss of investment valuation towards invention because it is less economically beneficial if you can't have a monopoly on your patented good, but you benefit economically by letting new inventions reach natural price equilibrium immediately, and the spread of new inventions would propagate more inventions, even without a major profit motive - you still benefit being "first out the door" on a new idea. Which we see all the time in software, and then run into this problem where first out the door has already made a bunch but is now suing me for trying to do something even remotely in the same problem domain because I see demand there, but I won't be able to meet it because I'm artificially locked out of that market. That applies to all economic domains. Patents worked back when it was extremely hard to sell your goods to its entire market, because you were either distance limited, communication limited, or production rate limited. In the first two situations someone could just take your idea, set up half way across the country, and made all the returns. Today, I can invent anything I want and have it on ebay overnight and ship it anywhere in the world. I can advertise on most major ad services if I want, with an audience of the entire first world. The only limiting factor for me is demand, but that just means I have to be safe when bringing inventions to market, but it is good for the economy overall because it means if I can't meet demand, someone else will pick up the slack. It is still, like I said, advantageous to the first to market with an idea, enough so that I wouldn't predict much of a drop in novel ideas. Like I said, I would expect more if technology and designs were more open and people could cheaply iterate and extend past concepts more readily.

andrewfong 13y ago
Not necessarily opposed, but there are a couple areas where this might be a net loss absent other adjustments. Pharmaceuticals would be the obvious one -- they require a large upfront research cost, copying is trivial, and the FDA approval process erodes first-to-market advantages.
- Guvante 13y ago
  Pharmaceuticals would be devastated. While there are externalities that need to be solved around our production of drugs, the patent system is a good thing overall for them. No one spends $1 billion to make a drug if anyone can copy it simply. Additionally there are international problems related to abolishing patents.

Glyptodon 13y ago

I don't see why independent invention wouldn't lead to a legal assumption of obviousness. Independent invention seems like incredibly clear cut proof of obviousness to me, anyway.

andrewfong 13y ago
The issue is: obvious to whom? Both Newton and Leibniz independently invented* Calculus at about the same time. That may mean Calculus was obvious to Newton and Leibniz (and it may very well have been obvious to anyone in that particular community of mathematician), but it certainly wasn't obvious to the average mathematician at the time. * More like discovered (don't want to imply math is patentable), but the point remains the same.

gcb0 13y ago

technically, it is pretty simple and effective. If several people would claim independent invention, it is obviously a statement about obviousness. So the patent would already be invalid under the current law. Now, since everyone involved in patents, they don't want to interpret the law that way. So there is a non-written agreement that no one will go that route. and that is idiotic.