4 ms·

Patents Are Eating the World and Hurting Innovation

153 points by hype7 12y ago

pjc50 12y ago
Since the thread is full of insane suggestions for reform, I'll make some sensible ones: 1) non-physical implementations or items already covered by copyright should not be patentable. Pure software and media carrying it should be treated as speech and creative works; it should not be possible to infringe a patent simply by writing or running software. 2) re-introduce the requirement to deposit an example of what's being patented. A set of photos plus manufacturing drawings in usual electronic form should be acceptable as a substitute to avoid a storage problem for the patent office. (Want to patent a chip? Send Verilog or GDSII along with your application) 3) following from that, if there is a software component in the claims then the source must be provided in the patent application.
dougabug 12y ago
The expression "X is eating the world" is eating the world.
- kaonashi 12y ago
  I can't believe X ate the whole thing.
  - recursive 12y ago
    No, it's still eating.
- tomsthumb 12y ago
  Agreed, it is to be considered harmful.
- anotherevan 12y ago
  Yes, if you use a headline like that, you're doing it wrong.
jgilliam 12y ago
I read the headline as "Parents are eating the world and hurting innovation."
- jrells 12y ago
  Me too! I was very interested, then very confused.
- hartator 12y ago
  haha same here! I was going to post about it!
- Alupis 12y ago
  I couldn't agree more with the article. The US Patent system is broken and needs revisions to meet today's marketplace. Patents are awarded to non-practicing entities and people who can't act on nor implement the very patent they were awarded. Idea's should not be patentable. If you can think of something, so can I. Especially when it comes to software, since software is nothing but an idea written down. Idea's that oneself cannot implement and/or act on, should not be patentable. To be awarded a patent, you should, at the very least, be required to provide a working POC. I'm tired of companies being awarded absurd "future thinking" patents that have vague wording along the lines of "something will happen when the user does something, etc". Patent Trolls (aka Non-Practicing Entities) should not be able to hold patents if they are not using and/or implementing them. How can you collect money on an idea for years/decades but not have the capacity yourself to perform the service/make the product the companies you are suing are doing? The US needs drastic patent reform. It is stiffling innovation.
josaka 12y ago
The chart in the article, showing patent suits filed as a function of time, is a little misleading. It appears to hockey stick in 2011 (after a long upward trend). It's worth noting that in 2011, the rules on how many defendants you can group in a suit changed, causing what used to be a single suit to spawn multiple separate suits, even though the number of companies affected didn't necessarily change. I think a better chart would lists defendants as a function of time.
- Natsu 12y ago
  I remember a similar upwards trend when you look at the graphs of money spent on patent lawsuits over time. So I believe it's a growing trend, even if the change to the joinder rules may explain part of the spike. I went looking for the chart, but all I can find are articles saying that Google & Apple spent more on patent lawsuits than R&D. I think that is illustrative of the problem, albeit in a different way.
  - deleted 12y ago
    [deleted]
- ximeng 12y ago
  What is the best way to get data on who is litigating, who is being sued, and over what patent? For only 5000 lawsuits it would be relatively easy to understand the scope of the problem.
  - WildUtah 12y ago
    It would be nice to just read in the court filings, which are a public record, and produce data extracts to explain the world. Unfortunately the PACER system -- officially a public agency -- charges you by the page for those public documents. Once you've got them, they're free for you to share, but sharing projects threaten the revenues of the system and the publishers (Westlaw and Lexis) that prosper from the lack of public access to public data. Those publishers and PACER have worked hard to block and shut down and even bring unrelated federal prosecutions against people who organize free systems. One of the reasons Aaron Swartz was a major target of federal prosecutors even though his nominal accusers didn't want charges brought is that he was active in promoting free access to federal court documents. [0] Companies like Lex Machina [1] work with the officially supported publishers to offer analysis of patent lawsuit filings and patent office documents (also officially but not really public) to answer questions like yours for very wealthy clients. [0] http://www.theverge.com/2013/2/8/3968824/aaron-swartzs-battle-to-free-the-pacer-legal-document-database http://www.theverge.com/2013/2/8/3968824/aaron-swartzs-battl... [1] https://lexmachina.com/ https://lexmachina.com/
shiven 12y ago
Here is a hypothetical solution: (0). Make patent issue fee ridiculously expensive (100k+ ?). (1). Increase the salaries of every patent examiner to ridiculously high levels, supported by the extremely high fee. (2). Make every patent examiner personally liable for approving a patent, to the extent of a lien on their personal assets. No bankruptcy allowed (as for student loans). (3). If any patent is later proved to be carelessly approved, infringing on prior art or broader than it deserved to be, the patent examiner should be held liable and pay damages for every patent they approved that was struck down. That might help cut down the indiscriminate issuance of patents that should never have been allowed in the first place.
- pjc50 12y ago
  (2) Make every patent examiner personally liable for approving a patent, to the extent of a lien on their personal assets. No bankruptcy allowed (as for student loans). This is never going to happen and would be an abusive illegal employment practice if it did.
  - md2be 12y ago
    Make every patent applicant (and patent agent/counsel) liable for filing patent claims that are found invalid whether issues or not.
  - keithpeter 12y ago
    You could make the agents self-employed on a bounty basis rather like the old Lloyd's Names http://moneyweek.com/how-to-become-a-lloyds-name-42723/ http://moneyweek.com/how-to-become-a-lloyds-name-42723/ However, the inevitable Black Swann event caused changes even in that very high risk system... "Historically, Names had unlimited liability to the risks they were underwriting. In the late 1980s/early 1990s, Lloyd’s entered the most traumatic time in its history. Unexpectedly large legal awards in US courts on asbestos, pollution and health hazard policies (APH) served up huge losses to many Names, a large number of whom lost their shirts. Names’ numbers dropped from over 30,000 to below 10,000." I think just giving patent examiners enough time and resources to actually verify the claims would probably cut down a lot of the problem. That and a specialised court like http://www.justice.gov.uk/courts/rcj-rolls-building/patents-court http://www.justice.gov.uk/courts/rcj-rolls-building/patents-... instead of a general purpose district court sitting with a lay jury
mellisarob 12y ago
true but initiates need to be taken by the legislative if they wish to overcome these patents.
obsurveyor 12y ago
The only fix patents really need is a decrease in time. Make it 2 or 3 years instead of 20(retroactive, no grandfather clause) and dump software/DNA/genetic patents. Go back to patents being actual inventions instead of ideas and processes.
- jrkelly 12y ago
  If you drop DNA patents would you recommend it be covered by copyright? Tough if there is bothing preventing direct copying.
niels_olson 12y ago
What has a better return on investment? A Comp Sci BS or a JD? I'm betting the Comp Sci has a higher mean, median, and max.
- jonnathanson 12y ago
  Should be pretty easy to find aggregate stats on both. Law follows a bimodal distribution, though, so you'd need to factor that into account. Basically, there are two types of law degrees, and two types of lawyers: those from top-N schools, and everyone else. Those who land prestigious clerkships, and go on to practice things like securities or corporate M&A at top BigLaw firms, and those who don't. When we speak of a "JD," we can't really speak of it as a homogeneous class. You could argue that this effect could be found with any degree, for instance, that a CS degree from Stanford leads to much better outcomes than a CS degree from a mid-tier university. But the effects of school, class rank, career track, and prestige in the legal profession are near-total, and the divide in outcomes is quite dramatic.
- HeyLaughingBoy 12y ago
  The combination is likely a far outlier. Considering that with an undergraduate degree in CS, the JD can become a patent lawyer and IP lawyers are among the best paid, that's probably the best bang for the buck.
jayvanguard 12y ago
Have there been any proposals aimed at reducing the transferability of patents? Perhaps the lifetime of the patent could halve each time it is transferred to a new legal entity along with some reduction in possible damages.
fancyfancy 12y ago
I agree that patents are making innovation difficulat. This company seems to be changing that, and may help solve the problem. I thought it was interesting, at least! Bideas: http://bit.ly/bideas_com http://bit.ly/bideas_com

153 points by hype7 12y ago

pjc50 12y ago

Since the thread is full of insane suggestions for reform, I'll make some sensible ones: 1) non-physical implementations or items already covered by copyright should not be patentable. Pure software and media carrying it should be treated as speech and creative works; it should not be possible to infringe a patent simply by writing or running software. 2) re-introduce the requirement to deposit an example of what's being patented. A set of photos plus manufacturing drawings in usual electronic form should be acceptable as a substitute to avoid a storage problem for the patent office. (Want to patent a chip? Send Verilog or GDSII along with your application) 3) following from that, if there is a software component in the claims then the source must be provided in the patent application.

dougabug 12y ago

The expression "X is eating the world" is eating the world.

kaonashi 12y ago
I can't believe X ate the whole thing.
- recursive 12y ago
  No, it's still eating.
tomsthumb 12y ago
Agreed, it is to be considered harmful.
anotherevan 12y ago
Yes, if you use a headline like that, you're doing it wrong.

jgilliam 12y ago

I read the headline as "Parents are eating the world and hurting innovation."

jrells 12y ago
Me too! I was very interested, then very confused.
hartator 12y ago
haha same here! I was going to post about it!
Alupis 12y ago
I couldn't agree more with the article. The US Patent system is broken and needs revisions to meet today's marketplace. Patents are awarded to non-practicing entities and people who can't act on nor implement the very patent they were awarded. Idea's should not be patentable. If you can think of something, so can I. Especially when it comes to software, since software is nothing but an idea written down. Idea's that oneself cannot implement and/or act on, should not be patentable. To be awarded a patent, you should, at the very least, be required to provide a working POC. I'm tired of companies being awarded absurd "future thinking" patents that have vague wording along the lines of "something will happen when the user does something, etc". Patent Trolls (aka Non-Practicing Entities) should not be able to hold patents if they are not using and/or implementing them. How can you collect money on an idea for years/decades but not have the capacity yourself to perform the service/make the product the companies you are suing are doing? The US needs drastic patent reform. It is stiffling innovation.

josaka 12y ago

The chart in the article, showing patent suits filed as a function of time, is a little misleading. It appears to hockey stick in 2011 (after a long upward trend). It's worth noting that in 2011, the rules on how many defendants you can group in a suit changed, causing what used to be a single suit to spawn multiple separate suits, even though the number of companies affected didn't necessarily change. I think a better chart would lists defendants as a function of time.

Natsu 12y ago
I remember a similar upwards trend when you look at the graphs of money spent on patent lawsuits over time. So I believe it's a growing trend, even if the change to the joinder rules may explain part of the spike. I went looking for the chart, but all I can find are articles saying that Google & Apple spent more on patent lawsuits than R&D. I think that is illustrative of the problem, albeit in a different way.
- deleted 12y ago
  [deleted]
ximeng 12y ago
What is the best way to get data on who is litigating, who is being sued, and over what patent? For only 5000 lawsuits it would be relatively easy to understand the scope of the problem.
- WildUtah 12y ago
  It would be nice to just read in the court filings, which are a public record, and produce data extracts to explain the world. Unfortunately the PACER system -- officially a public agency -- charges you by the page for those public documents. Once you've got them, they're free for you to share, but sharing projects threaten the revenues of the system and the publishers (Westlaw and Lexis) that prosper from the lack of public access to public data. Those publishers and PACER have worked hard to block and shut down and even bring unrelated federal prosecutions against people who organize free systems. One of the reasons Aaron Swartz was a major target of federal prosecutors even though his nominal accusers didn't want charges brought is that he was active in promoting free access to federal court documents. [0] Companies like Lex Machina [1] work with the officially supported publishers to offer analysis of patent lawsuit filings and patent office documents (also officially but not really public) to answer questions like yours for very wealthy clients. [0] http://www.theverge.com/2013/2/8/3968824/aaron-swartzs-battle-to-free-the-pacer-legal-document-database http://www.theverge.com/2013/2/8/3968824/aaron-swartzs-battl... [1] https://lexmachina.com/ https://lexmachina.com/

shiven 12y ago

Here is a hypothetical solution: (0). Make patent issue fee ridiculously expensive (100k+ ?). (1). Increase the salaries of every patent examiner to ridiculously high levels, supported by the extremely high fee. (2). Make every patent examiner personally liable for approving a patent, to the extent of a lien on their personal assets. No bankruptcy allowed (as for student loans). (3). If any patent is later proved to be carelessly approved, infringing on prior art or broader than it deserved to be, the patent examiner should be held liable and pay damages for every patent they approved that was struck down. That might help cut down the indiscriminate issuance of patents that should never have been allowed in the first place.

pjc50 12y ago
(2) Make every patent examiner personally liable for approving a patent, to the extent of a lien on their personal assets. No bankruptcy allowed (as for student loans). This is never going to happen and would be an abusive illegal employment practice if it did.
- md2be 12y ago
  Make every patent applicant (and patent agent/counsel) liable for filing patent claims that are found invalid whether issues or not.
- keithpeter 12y ago
  You could make the agents self-employed on a bounty basis rather like the old Lloyd's Names http://moneyweek.com/how-to-become-a-lloyds-name-42723/ http://moneyweek.com/how-to-become-a-lloyds-name-42723/ However, the inevitable Black Swann event caused changes even in that very high risk system... "Historically, Names had unlimited liability to the risks they were underwriting. In the late 1980s/early 1990s, Lloyd’s entered the most traumatic time in its history. Unexpectedly large legal awards in US courts on asbestos, pollution and health hazard policies (APH) served up huge losses to many Names, a large number of whom lost their shirts. Names’ numbers dropped from over 30,000 to below 10,000." I think just giving patent examiners enough time and resources to actually verify the claims would probably cut down a lot of the problem. That and a specialised court like http://www.justice.gov.uk/courts/rcj-rolls-building/patents-court http://www.justice.gov.uk/courts/rcj-rolls-building/patents-... instead of a general purpose district court sitting with a lay jury

mellisarob 12y ago

true but initiates need to be taken by the legislative if they wish to overcome these patents.

obsurveyor 12y ago

The only fix patents really need is a decrease in time. Make it 2 or 3 years instead of 20(retroactive, no grandfather clause) and dump software/DNA/genetic patents. Go back to patents being actual inventions instead of ideas and processes.

jrkelly 12y ago
If you drop DNA patents would you recommend it be covered by copyright? Tough if there is bothing preventing direct copying.

niels_olson 12y ago

What has a better return on investment? A Comp Sci BS or a JD? I'm betting the Comp Sci has a higher mean, median, and max.

jonnathanson 12y ago
Should be pretty easy to find aggregate stats on both. Law follows a bimodal distribution, though, so you'd need to factor that into account. Basically, there are two types of law degrees, and two types of lawyers: those from top-N schools, and everyone else. Those who land prestigious clerkships, and go on to practice things like securities or corporate M&A at top BigLaw firms, and those who don't. When we speak of a "JD," we can't really speak of it as a homogeneous class. You could argue that this effect could be found with any degree, for instance, that a CS degree from Stanford leads to much better outcomes than a CS degree from a mid-tier university. But the effects of school, class rank, career track, and prestige in the legal profession are near-total, and the divide in outcomes is quite dramatic.
HeyLaughingBoy 12y ago
The combination is likely a far outlier. Considering that with an undergraduate degree in CS, the JD can become a patent lawyer and IP lawyers are among the best paid, that's probably the best bang for the buck.

jayvanguard 12y ago

Have there been any proposals aimed at reducing the transferability of patents? Perhaps the lifetime of the patent could halve each time it is transferred to a new legal entity along with some reduction in possible damages.

fancyfancy 12y ago

I agree that patents are making innovation difficulat. This company seems to be changing that, and may help solve the problem. I thought it was interesting, at least! Bideas: http://bit.ly/bideas_com http://bit.ly/bideas_com