12 ms·

Almost No Patented Discoveries Get Used

179 points by Libertatea 12y ago

VanL 12y ago
(Disclosure: IAAPL, but this is my view and isn't reflective of any former clients or my current employer.) The key problem with the patent system is the problem of disclosure. We always say that the patent system is a bargain between the inventor and the public. The public gets new knowledge and the inventor gets a period of exclusivity for the using/making etc that knowledge. Where the system falls down is in the "disclosure to the public" part of that bargain. Patent language has become so abstracted that most of the time it fails to inform someone of skill in the art how to actually make the promised item. This has some corollary effects: - The patent system becomes less useful as a source for knowledge (as argued by the article) - Novelty and obviousness (and later, infringement) all become less certain. This results in poor quality patents coming out of the patent office and high costs to litigate for infringement. In the end, though, the result is that the patent system is (for most of the computer arts where I spend my time) not very useful as a store of knowledge. If there is a choice, I will almost always seek out a paper (or source code) rather than an accompanying patent to get an understanding of new technology. This is due to the incentives associated with each type of publication. The source code is designed to convey certain algorithms to the computer in an unambiguous way. Papers are designed to get read and cited - and they don't do that unless they communicate what is new and meaningful to an audience of peers. In contrast, patents are designed to cover a range of possible solution spaces, with as much room for reinterpretation later as is possible without being insoluably ambiguous. This problem is hard to undo because the push to abstract the descriptions in patents was done with the best of intentions. - Congress wanted to allow new things to be described without constricting the form of the language used. - Prosecuting lawyers (and their clients) wanted to get the maximum coverage for their new ideas. - Courts want to reward inventors and disallow trivial workarounds (nail->screw) not addressing the core inventive concept. All of these points are valid ones - but in combination, the result is that patents have become too vague, particularly in anything computer-related. As an aside, the mechanical arts (and some others, such as many bio/chem arts) don't suffer from this problem to nearly the same extent, and so you usually don't see the same problems.
- rogerbinns 12y ago
  I can substantiate this. I've done a few patents (all owned by employers) which take years to go through. When finally granted, I go and read them, and even though I am the "inventor" I can't make any sense of what the heck they are about! They are in no way disclosed in a form and language that makes it easy to fundamentally understand.
- Houshalter 12y ago
  >If there is a choice, I will almost always seek out a paper (or source code) rather than an accompanying patent to get an understanding of new technology. On the other hand patents do allow companies to publish their work without fear of losing their trade secret, and to invest in research in the first place. The papers might not be published at all if not for patents. For example Google, Facebook, Microsoft all fund and publish machine learning research now. Of course this is probably only true for a small fraction of all patents, and probably doesn't benefit small players very much.
- ajb 12y ago
  "the patent system is (for most of the computer arts where I spend my time) not very useful as a store of knowledge"..."This is due to the incentives" Actually, the problem is more fundamental than that. For thing like medicines, the standard naming scheme for chemicals means you can reliably find patents covering a particular compound. Rice's theorem [1] means that that this cannot be done for software. [1] https://en.wikipedia.org/wiki/Rice%27s_theorem https://en.wikipedia.org/wiki/Rice%27s_theorem
pavlov 12y ago
I don't know. It seems easy to find counterexamples where the expiration of core patents was the catalyst for a boom of new low-end competitors, for example in 3D printers a couple of years ago. Isn't that how the patent system is supposed to work?
- pjc50 12y ago
  That's a pro-example rather than a counterexample, surely? Nobody licenses the patents, usually because they're not available on FRAND terms, instead the field is held up for 20+ years waiting for them to expire. (Is a patent that has expired still counted as a "patented discovery"? This changes the meaning quite a bit)
  - Spooky23 12y ago
    People and companies always want a competitive advantage, often at the expense of the industry as a whole. Why is it "bad" if patents are the reason things are held up, but "not bad" if it's a common trade secret or proprietary application? Didn't Google hold back the entire industry by not making their secret sauce for large scale management of IT infrastructure broadly available? IMO, the patent problem is a scoping problem -- we allow patents that aren't appropriate. The concept of patents makes it possible to make large capital investments to actually invent things. We need that imo.
    - geon 12y ago
      Most patents seems to be the logical conclusion of trying to solve some problem. Anyone else who has the same problem will reach a similar solution. It is "simply" a matter of doing the engineering. A patent would forbid anyone else from even trying. The Google infrastructure would be a good example. Amazon and Facebook have built similar facilities.
    - pjc50 12y ago
      Trade secrets and proprietary applications can be independently re-invented.
gsg 12y ago
Considering Walker is described as a heavy patent holder, I'm not sure his enthusiasm for the wonders of patents are entirely objective. Is he concerned here with informing his audience or the value of his holdings? > it will be aimed at smaller and mid-sized businesses that need a low-cost way to mitigate their infringement risk. It will also offer universities and other smaller patent owners a way to finally earn some revenue from their inventions Maybe I'm cynical, but "mitigate their infringement risk" sounds like a euphemism for "pay Walker a bunch of money or get taken to court".
- cubano 12y ago
  Maybe I'm cynical, but... Yes, you are cynical, but, perhaps unfortunately, you are probably correct. While the need to create some sort of modded-out system to allow interested parties a way to really examine what's in the db almost surely exists, I, too, wonder of what value it would ultimately be. It's often difficult enough in business to crack the money-making side of it, and adding the large administrative and financial burdens of dealing with onerous patent restrictions sure doesn't help.
- unreal37 12y ago
  He says he's the founder of priceline.com and 11th on the list of living patent holders. Good for him. Sure, it's not objective, but there's no such thing as unbiased opinion. It sounds like he thinks one problem with the current system is that, even if you do use a patent as it's intended (license it properly), you can still get taken to court by someone else for infringing on their similar patent. Using patents is like walking across a minefield. Small businesses just do not (and should not) play in the patent game because of legal risk. If his company provides insurance that using their patents protect you against liability against violating other patents, it sounds like a great idea. Like the "anti-patent troll". Like how some app developers are being sued for using some feature of Apple's SDK. [1] Imagine if Apple provided free insurance against all such lawsuits. [1] http://www.macstories.net/news/lodsys-starts-filing-lawsuit-against-app-developers/ http://www.macstories.net/news/lodsys-starts-filing-lawsuit-...
minthd 12y ago
For a detailed analysis of this, look: http://www.iam-magazine.com/blog/detail.aspx?g=af22f2c6-e794-4e5b-9599-33a8055eebae http://www.iam-magazine.com/blog/detail.aspx?g=af22f2c6-e794...
rhino369 12y ago
Un-litigated or un-licensed patents still have value, even to smaller companies. One huge use for patents is a like a nuclear arsenal between competitors. Competitor A has 500 patents, competitor B has 500 patent, both covering the product range they both make. Neither is going to sue based on it because it would be a huge mess. The Smartphone wars is something of a rarity. Usually industry leaders don't go at each other. Google found this out because of their late development of patents related to Android. Not having the arsenal made Google weak. It's why Google acquired Motorola. Google paid billions for patents that never got used. IP portfolios also are an asset you can borrow against. Commercial litigation is always expensive. Doesn't matter if it is breach of contract or patent infringement. The little guy is at a disadvantage.
- mpdehaan2 12y ago
  True -- unfortunately this doesn't work against a patent holding company with no actual assets. It's likely they hold thousands of patents but have nothing to return fire against. Thus, a very GOOD public company can be attacked by someone who has simply bought IP, and does not have recourse against them.
  - rhino369 12y ago
    In my mind, the issue isn't the ability to buy IP and sue, but the fact that there is shitty IP out there that can be bought and misused. The best IP a non-practicing entity gets is from legit companies who sold off their IP or lost it in bankruptcy. When that happens, it's just monetizing the R&D the company invested in. The big issue is dogcrap patents that granted to garage inventors with way too big a scope or after there was already a ton of prior art. The trolls take those patents and then extort the shit out of everyone they can.
mpdehaan2 12y ago
I think, due to the high number of patents that simply aren't valuable, this would be true regardless of the case. In the only possible good case for the system, it prevents two rivals from sueing each other because they very likely infringe on each other already. The patent troll problem is of course absolutely terrible. Anybody can sue anybody, they don't have to be right - they might not win, but there's costs and time involved. And we also have "practiced" court systems in a certain area that make money basically exclusively off of this. I think it's safe to say that most software most companies produce violates a large number of existing patents - whether they know it or not - because dilligence around rejecting incoming patents for novelty or prior art is so bad, and patent language is so terribly obfuscated. Once, I knew some folks at a three-letter computer company who basically patented a scroll bar. In the late 90s. It may provide somewhat of a chilling effect to people starting new businesses, but it doesn't seem to be that rampant. But do patents provide a useful library for sharing technological ideas after X years? Not in most cases.
fsloth 12y ago
In rare instances patents allow keen individuals to cash in with their skill and grit. Most of the time this does not happen. With companies, they are generally happy selling the old stuff with lipstick since it's easier, rather than innovate. I would claim that for businesses with less than astronomical R&D budgets trademarks and brands are far more valuable than patents, while patents act mostly as an outside markets legal leverage (i.e they provide a big stick against competitors but the only effect it has on customers is a slightly higher price).
Karunamon 12y ago
This speaks to the patent system being so far perverted from its original purpose that I feel it's time to seriously begin considering if we want to support it in any form. Are patents in 2015 being used more for "promoting the useful arts"[1] or more as a weapon for large enterprises to use against their large and small competition? This same broken-ness applies to another system of legal monopolies too: copyrights. Are those used more to "promote the useful arts" in 2015, or are they used more by rightsholders to stamp out that which they don't like? I wonder what our economic, artistic, and technological landscape would look like if we decided, as a society, that these legal monopolies are causing more harm than good, and that they should be severely curtailed, if not outright abolished? I wonder if it would really be as bad as the people who have a financial interest in these things say it would be? [1]: http://memory.loc.gov/cgi-bin/ampage?collId=llsl&fileName=001/llsl001.db&recNum=232 http://memory.loc.gov/cgi-bin/ampage?collId=llsl&fileName=00... (interestingly, the copyright laws use the same "useful arts" wording almost verbatim)
- ams6110 12y ago
  The thing about patents is that they are public. They encourage sharing inventions in exchange for a period of protection for the inventor. It is generally fair, I think, for an inventor to be able to see a return on his/her investment of R&D effort and expense. Without such a system, inventors would keep their work secret under "Trade Secret" protection or just not bother at all. I think abolishing the patent system would slow technological progress. The problem with patents is that they seem to be awarded for many "inventions" that do not seem to really be novel. Patent inspectors have not kept up well with the rapid pace of innovation that software allows. Fix that problem, and I think a lot of general unhappiness with the system would go away. Copyright? I'm not aware of any general problem with that. It's pretty simple, the original author has a period of protection for their work. What's wrong with that?
  - dalke 12y ago
    > Copyright? I'm not aware of any general problem with that. If you do a Google search for "problems with copyright" you'll find many articles on the topic, including http://gizmodo.com/5989166/everything-wrong-with-digital-copyright http://gizmodo.com/5989166/everything-wrong-with-digital-cop... and http://epubs.utah.edu/index.php/ulr/article/viewFile/7/11 http://epubs.utah.edu/index.php/ulr/article/viewFile/7/11 and https://web.law.duke.edu/cspd/publicdomainday https://web.law.duke.edu/cspd/publicdomainday . To start, copyright terms are getting longer and longer, while "economists who have modeled the ideal copyright term have uniformly suggested that it should be far shorter than it is right now. Some have suggested that it should be as short as 15 years."
dalke 12y ago
This isn't useful without knowing the same numbers for 100+ years ago. Lincoln filed a patent on a mechanism to lift a boat over shoals and obstacles, which almost certainly wouldn't have worked and was never used. If almost no patented inventions were used in the 1800s then it's hard to use that as a metric for determining if the patent system has gotten worse.
logicallee 12y ago
What a mess. Starting at the title, there's no such thing as a patented discovery. (http://www.legalmatch.com/law-library/article/what-cant-be-patented.html http://www.legalmatch.com/law-library/article/what-cant-be-p...) Secondly, it really doesn't matter if "almost no" patented innovations get used, just as (to make an analogy) it doesn't matter if "almost no founders get VC funding" (!). There are over twenty million founders in the United States alone who would take $100k into their 'startup business' from a VC tomorrow. So what. "Almost no founders ever get VC funding" is a useless observation (even if it's true), and I make this analogy because here on HN we have a lot of experience with the cases where they do, and could rightfully see the sentence as a useless observation. There is less experience with using the patent system here, but what matters, of course, is patented innovations that do or did require the patent system. And anyone who has any experience whatsoever with this subject knows about what kinds of cases this applies to. I am not going to elaborate but I found the article basically totally worthless and clearly written by someone who has no information on the workings of the system. Clearly there is a systemic cost to having a patent system at all. But perhaps the reason the author had to write that no patented discoveries get used (which is a truism, since there is no such things as a patented discovery) is that the same is not true for innovations and inventions.
tedunangst 12y ago
> 95 percent of all patented discoveries from ever being put to use to create new products Is this really assuming that every patented idea is a good one? Doesn't everyone assume the opposite, that most patented ideas are crap? I'm not surprised to learn that 95% of crappy ideas never turn into new products. > More than likely, you won’t be able to put it to good use unless you have the multi-million-dollar resources required to launch a startup How is this worse than starting a business without a patent? I don't think patent law was also supposed to be a guarantee you'd get a small business loan.
- derf_ 12y ago
  > How is this worse than starting a business without a patent? The argument in the article is that if you don't have the resources to commercially exploit a patent yourself, then no one else will pay you for your invention, because a) the frictional costs in licensing from you are too high, especially when b) they can just steal the idea, since you are too poor to defend yourself in court. That creates an inefficient market. Personally, I think the effect of b) is smaller than implied, since an inventor could always sell the patent to a troll who can afford to defend it (though discounted by some large risk premium)... nevertheless I've heard of it happening. The effect of a) is very real. Just consider any software product given away for free... even a requirement to count how many copies are distributed for the purposes of computing a royalty may be inimical to the business model.
AndrewKemendo 12y ago
When we talk with investors one of the top questions is "What is your IP?" and that can mean a range of things but typically means "Do you have a patent?" When we were starting out I did a lot of reading on patents, the system of patents litigation etc...and decided that the best thing for us would be to ignore the whole patent system and just push forward our technology into the marketplace hoping that we would be moving so quickly that trade secrets would keep us covered for the foreseeable future. The thinking was: A patent only gives us the ability to argue our case for infringement in court. As a startup there is no possible way that we would be able to afford a lengthy IP court battle without serious VC money or revenue, at which point we should have been able to get the patent stuff figured out easily. Besides, a patent just tells the world how to do what you are doing which makes it easy to rip-off or change slightly as the ability to cover every single use case/implementation in a patent is basically impossible. I still believe this, but we had so much pressure from investors (that usually didn't invest) that I spent a good 80+ hours writing/drawing our patent and getting the provisional done. Seemed like a good compromise.
- DanBC 12y ago
  > Besides, a patent just tells the world how to do what you are doing which makes it easy to rip-off or change slightly as the ability to cover every single use case/implementation in a patent is basically impossible. For an actual example of this see the hair removal device that used a rolling spring to rip out hair. Competitors realised they could do the same by using a set of wedged discs. http://en.wikipedia.org/wiki/Epilator http://en.wikipedia.org/wiki/Epilator. (See the "rotating disc" section).
- throwawaykf05 12y ago
  > As a startup there is no possible way that we would be able to afford a lengthy IP court battle without serious VC money or revenue... This is essentially why many NPEs exist. You can approach them, and if they think your IP is being infringed by somebody worth suing, they will litigate it on "contingency". That is, they will charge you almost nothing but will keep the lion's share of any settlement or damages. As bad as NPEs are when they target startups, they are often the only recourse when faced with a big, well-funded infringer. The current widespread negative rhetoric against "patent trolls" does well in distracting startups from this fact.
throwawaykf05 12y ago
I'll preface this by saying that IANAL, but I've been tangentially involved in the licensing and sale of patent portfolios and have read hundreds of patents. I'm also an inventor on many. Most patents (including mine!) don't get used simply because there's no one practically using those inventions. The comment at https://news.ycombinator.com/item?id=8838681 https://news.ycombinator.com/item?id=8838681 hits the nail on the head. It's not usually because they are too expensive or risky to license or that the inventions themselves are not technically interesting. It's just that the market or industry ends up using technology (which itself is often patented) that does not infringe the vast majority of patents. As an example, I once saw a patent on sale that was a precursor to DHTs and could potentially read on systems like Amazon Dynamo. But the way they did DHTs was completely different from Dynamo, and in fact, different from Chord, CAN, Pastry, Kademlia or any of the other DHTs in academia and practice (all of which the patent pre-dated). Hence, as interesting as it was, it had no commercial value. I've seen this pattern repeat in many other fields of technology. The fact that only < 1% of patents are ever asserted simply reinforces this notion. This is not surprising, since in most engineering there are many ways to implement the same idea, and each of these ways can be patented. But typically an industry converges on a few ways of doing things and the other approaches lay unused. Does this mean the system is broken? Consider academia. Think of all the hundreds of papers that get published in computer-related fields alone. Then think of how many of those actually make it into production. Does that mean academia is broken? The patent system may be flawed, but this is not why. This article essentially is an ad for the author's new venture, simply using the "broken patent system" meme to get some free publicity. As an aside, the "create efficient market for patents" language TFA uses at the end is oddly similar to the rhetoric Intellectual Ventures started off with. Initially IV was adamant that they would only license and not litigate, but more experienced people in the licensing business knew that was laughable. After all, a patent is nothing but a right to sue.
jonas21 12y ago
It's worth pointing out that the author of this piece is considered by many to be patent troll. https://gigaom.com/2011/04/13/419-jay-walker-goes-nuclear-priceline-founder-sues-more-than-100-companies/ https://gigaom.com/2011/04/13/419-jay-walker-goes-nuclear-pr... http://arstechnica.com/tech-policy/2011/04/priceline-founder-sues-100-companies-including-google-apple-over-patents/ http://arstechnica.com/tech-policy/2011/04/priceline-founder...
- mawburn 12y ago
  Oddly enough, I think that gives him more credibility in my book. Who better to talk about a system being broken than someone who makes a living exploiting it?
  - jonas21 12y ago
    Another way of looking at this is that his trolling has not been going so well lately [1], so he's trying a change in tactics. The "brokenness" that he sees in the patent system is not that it's too easy to profit from patenting obvious things, but rather that it's too hard. [1] http://www.law360.com/articles/573649/google-wins-invalidation-of-walker-digital-patent-claims http://www.law360.com/articles/573649/google-wins-invalidati...
- logn 12y ago
  I thought that too when I read the end of his article. And he states that only small/mid-size companies worry about infringement so his company is targeting them. In my direct experience at a 50,000 person company, large companies worry too. Our Internet proxy banned no sites except patent databases. Additionally, filing for patents is the other good way to reduce risk. I wonder, does professional liability insurance cover patent infringement?
Htsthbjig 12y ago
Patents in the US and Europe need serious reform: 1- They should update to the current world. That means using computer files like 3d CAD drawings or STLs. Today most patent's drawing are way worse than drawings 100 years ago(on purpose of course, as they don't want people to really understand the patent). Patents today try to obfuscate as much as they can so they give the less they can to society, but try to claim everything under the sun, so they receive the most from society. They should also let other types of documentation be presented, like audio, or video. Obfuscation should be taken care of, using standard formats for documentation, using standard terms. They try to patent already patented tech just changing the terms, so it looks different for the examiner. 2-Business and software patents should be banned. But this will take a fight, some court has declared business patents void. The software patent situation is surreal. Someone comes to your house and tells you you have to pay them for patents, but they can't show you!! If you don't pay they will sue you with a football team of layers.
DannyBee 12y ago
Jay has a huge stake in this, of course. http://www.patentproperties.com/ http://www.patentproperties.com/ He is also the guy who created walker digital. http://en.wikipedia.org/wiki/Walker_Digital http://en.wikipedia.org/wiki/Walker_Digital (look under "patent lawsuits and disputes") Despite his claims, he is in fact, a troll - he buys broad patents completely unrelated to his company solely for the purpose of suing deep-pocket companies for infringement. He has 719 patents, and cares heavily about monetizing them, having sued almost everyone under the sun. He sued Facebook for friending, for example. He realizes he is finally starting to lose the war, and writes pieces like this because he is afraid trolls like him are starting to finally get what they deserve. (Jay certainly is a smart guy, and he is certainly an innovative entrepreneur. I take serious issue with his business models around patents, though)
- kibwen 12y ago
  Hi DannyBee, we had a short discussion about open source licensing last month that I'd like to follow up on, but I haven't had any success finding your contact information or potential consulting rates. Can you contact me at ben.striegel@gmail if you'd like to continue? </offtopic>
- Animats 12y ago
  Right. He wants to become the Uber of patents. With his plan, patents aren't worth much individually, and they would be sold cheaply, in bulk, with his brokerage getting a cut.
diminoten 12y ago
At this point do any of you really feel you can talk about patents in an unbiased manner?
will_brown 12y ago
Here is a true story I have not previously shared on HN... While in law school, in attempt to defray tuition costs, I would order Livestrong style silicone bracelets and sell them at Daytona Beach bike week. After tinkering I began working with the manufacturer to mold the silicone bracelets with RFID chips and file a patent. As a law student, I found the patent filing process to bring real world practice to my classroom theory, plus I learned a lot about RFID technology in the process (mostly researching prior art, such as, RFID shopping carts; RFID one time use hospital bands; ect...). However, as a law student I had no practical (financial) way of bringing my idea to market. Nevertheless, I contacted Disney's director of park operations to discuss the potential of my RFID silicone bands acting as park tickets, monetary accounts and the general efficiency RFID bands could have of park operation efficiency (tracking lines, ride times, open seats, ect...). As one might expect I was blown off, given a nice generic response that there is no interest...but sure enough 7-8 years later the parks have incorporated RFID technology through the use of...silicone bands. I think such a story highlights the various positions one could take on our patent existing system. Some might say I was a patent troll, filing a patent where I knew I could never financially bring a product to market, others would argue that situation is why patents exist where the inventor needs to protect an idea where often times but for being the inventor/patent filer a giant corporation might come along and simply take an idea without any benefit to the inventor...finally some may say I should not have received a patent in the first place as RFID silicone bands are not non-obvious in the first place. Though I never sued, my own experience brings a certain bias to the table, and I would simply ask in countries that do not have a similar intellectual system to the US, is there an example of an inventor actually bringing an invention to market where they were not simply beat out by an existing corporation?
- soup10 12y ago
  You invented neither peanut or jelly or bread, should the pbj sandwich be patentable? The chances of you being the only source pitching RFID tech to Disney is zero. Sorry you didn't get their business. Did you pitch to any other companies? Did you expect Disney to license your patent and figure out the technical implementation themselves? Does your patent apply for non-silicone bracelets? Seems like RFID tech is and still is a legitimate business opportunity for many.. sounds like you gave up on it, why?
golemotron 12y ago
I'm so put off by the title I can't even read the article. Discoveries aren't patented - inventions are.
TrainedMonkey 12y ago
I think article completely skips over important point when quoting the statistics - majority of patents are virtually useless. If you account for that fact, 95% of patents never seeing use suddenly does not seem as bad.

179 points by Libertatea 12y ago

VanL 12y ago

(Disclosure: IAAPL, but this is my view and isn't reflective of any former clients or my current employer.) The key problem with the patent system is the problem of disclosure. We always say that the patent system is a bargain between the inventor and the public. The public gets new knowledge and the inventor gets a period of exclusivity for the using/making etc that knowledge. Where the system falls down is in the "disclosure to the public" part of that bargain. Patent language has become so abstracted that most of the time it fails to inform someone of skill in the art how to actually make the promised item. This has some corollary effects: - The patent system becomes less useful as a source for knowledge (as argued by the article) - Novelty and obviousness (and later, infringement) all become less certain. This results in poor quality patents coming out of the patent office and high costs to litigate for infringement. In the end, though, the result is that the patent system is (for most of the computer arts where I spend my time) not very useful as a store of knowledge. If there is a choice, I will almost always seek out a paper (or source code) rather than an accompanying patent to get an understanding of new technology. This is due to the incentives associated with each type of publication. The source code is designed to convey certain algorithms to the computer in an unambiguous way. Papers are designed to get read and cited - and they don't do that unless they communicate what is new and meaningful to an audience of peers. In contrast, patents are designed to cover a range of possible solution spaces, with as much room for reinterpretation later as is possible without being insoluably ambiguous. This problem is hard to undo because the push to abstract the descriptions in patents was done with the best of intentions. - Congress wanted to allow new things to be described without constricting the form of the language used. - Prosecuting lawyers (and their clients) wanted to get the maximum coverage for their new ideas. - Courts want to reward inventors and disallow trivial workarounds (nail->screw) not addressing the core inventive concept. All of these points are valid ones - but in combination, the result is that patents have become too vague, particularly in anything computer-related. As an aside, the mechanical arts (and some others, such as many bio/chem arts) don't suffer from this problem to nearly the same extent, and so you usually don't see the same problems.

rogerbinns 12y ago
I can substantiate this. I've done a few patents (all owned by employers) which take years to go through. When finally granted, I go and read them, and even though I am the "inventor" I can't make any sense of what the heck they are about! They are in no way disclosed in a form and language that makes it easy to fundamentally understand.
Houshalter 12y ago
>If there is a choice, I will almost always seek out a paper (or source code) rather than an accompanying patent to get an understanding of new technology. On the other hand patents do allow companies to publish their work without fear of losing their trade secret, and to invest in research in the first place. The papers might not be published at all if not for patents. For example Google, Facebook, Microsoft all fund and publish machine learning research now. Of course this is probably only true for a small fraction of all patents, and probably doesn't benefit small players very much.
ajb 12y ago
"the patent system is (for most of the computer arts where I spend my time) not very useful as a store of knowledge"..."This is due to the incentives" Actually, the problem is more fundamental than that. For thing like medicines, the standard naming scheme for chemicals means you can reliably find patents covering a particular compound. Rice's theorem [1] means that that this cannot be done for software. [1] https://en.wikipedia.org/wiki/Rice%27s_theorem https://en.wikipedia.org/wiki/Rice%27s_theorem

pavlov 12y ago

I don't know. It seems easy to find counterexamples where the expiration of core patents was the catalyst for a boom of new low-end competitors, for example in 3D printers a couple of years ago. Isn't that how the patent system is supposed to work?

pjc50 12y ago
That's a pro-example rather than a counterexample, surely? Nobody licenses the patents, usually because they're not available on FRAND terms, instead the field is held up for 20+ years waiting for them to expire. (Is a patent that has expired still counted as a "patented discovery"? This changes the meaning quite a bit)
- Spooky23 12y ago
  People and companies always want a competitive advantage, often at the expense of the industry as a whole. Why is it "bad" if patents are the reason things are held up, but "not bad" if it's a common trade secret or proprietary application? Didn't Google hold back the entire industry by not making their secret sauce for large scale management of IT infrastructure broadly available? IMO, the patent problem is a scoping problem -- we allow patents that aren't appropriate. The concept of patents makes it possible to make large capital investments to actually invent things. We need that imo.
  - geon 12y ago
    Most patents seems to be the logical conclusion of trying to solve some problem. Anyone else who has the same problem will reach a similar solution. It is "simply" a matter of doing the engineering. A patent would forbid anyone else from even trying. The Google infrastructure would be a good example. Amazon and Facebook have built similar facilities.
  - pjc50 12y ago
    Trade secrets and proprietary applications can be independently re-invented.

gsg 12y ago

Considering Walker is described as a heavy patent holder, I'm not sure his enthusiasm for the wonders of patents are entirely objective. Is he concerned here with informing his audience or the value of his holdings? > it will be aimed at smaller and mid-sized businesses that need a low-cost way to mitigate their infringement risk. It will also offer universities and other smaller patent owners a way to finally earn some revenue from their inventions Maybe I'm cynical, but "mitigate their infringement risk" sounds like a euphemism for "pay Walker a bunch of money or get taken to court".

cubano 12y ago
Maybe I'm cynical, but... Yes, you are cynical, but, perhaps unfortunately, you are probably correct. While the need to create some sort of modded-out system to allow interested parties a way to really examine what's in the db almost surely exists, I, too, wonder of what value it would ultimately be. It's often difficult enough in business to crack the money-making side of it, and adding the large administrative and financial burdens of dealing with onerous patent restrictions sure doesn't help.
unreal37 12y ago
He says he's the founder of priceline.com and 11th on the list of living patent holders. Good for him. Sure, it's not objective, but there's no such thing as unbiased opinion. It sounds like he thinks one problem with the current system is that, even if you do use a patent as it's intended (license it properly), you can still get taken to court by someone else for infringing on their similar patent. Using patents is like walking across a minefield. Small businesses just do not (and should not) play in the patent game because of legal risk. If his company provides insurance that using their patents protect you against liability against violating other patents, it sounds like a great idea. Like the "anti-patent troll". Like how some app developers are being sued for using some feature of Apple's SDK. [1] Imagine if Apple provided free insurance against all such lawsuits. [1] http://www.macstories.net/news/lodsys-starts-filing-lawsuit-against-app-developers/ http://www.macstories.net/news/lodsys-starts-filing-lawsuit-...

minthd 12y ago

For a detailed analysis of this, look: http://www.iam-magazine.com/blog/detail.aspx?g=af22f2c6-e794-4e5b-9599-33a8055eebae http://www.iam-magazine.com/blog/detail.aspx?g=af22f2c6-e794...

rhino369 12y ago

Un-litigated or un-licensed patents still have value, even to smaller companies. One huge use for patents is a like a nuclear arsenal between competitors. Competitor A has 500 patents, competitor B has 500 patent, both covering the product range they both make. Neither is going to sue based on it because it would be a huge mess. The Smartphone wars is something of a rarity. Usually industry leaders don't go at each other. Google found this out because of their late development of patents related to Android. Not having the arsenal made Google weak. It's why Google acquired Motorola. Google paid billions for patents that never got used. IP portfolios also are an asset you can borrow against. Commercial litigation is always expensive. Doesn't matter if it is breach of contract or patent infringement. The little guy is at a disadvantage.

mpdehaan2 12y ago
True -- unfortunately this doesn't work against a patent holding company with no actual assets. It's likely they hold thousands of patents but have nothing to return fire against. Thus, a very GOOD public company can be attacked by someone who has simply bought IP, and does not have recourse against them.
- rhino369 12y ago
  In my mind, the issue isn't the ability to buy IP and sue, but the fact that there is shitty IP out there that can be bought and misused. The best IP a non-practicing entity gets is from legit companies who sold off their IP or lost it in bankruptcy. When that happens, it's just monetizing the R&D the company invested in. The big issue is dogcrap patents that granted to garage inventors with way too big a scope or after there was already a ton of prior art. The trolls take those patents and then extort the shit out of everyone they can.

mpdehaan2 12y ago

I think, due to the high number of patents that simply aren't valuable, this would be true regardless of the case. In the only possible good case for the system, it prevents two rivals from sueing each other because they very likely infringe on each other already. The patent troll problem is of course absolutely terrible. Anybody can sue anybody, they don't have to be right - they might not win, but there's costs and time involved. And we also have "practiced" court systems in a certain area that make money basically exclusively off of this. I think it's safe to say that most software most companies produce violates a large number of existing patents - whether they know it or not - because dilligence around rejecting incoming patents for novelty or prior art is so bad, and patent language is so terribly obfuscated. Once, I knew some folks at a three-letter computer company who basically patented a scroll bar. In the late 90s. It may provide somewhat of a chilling effect to people starting new businesses, but it doesn't seem to be that rampant. But do patents provide a useful library for sharing technological ideas after X years? Not in most cases.

fsloth 12y ago

In rare instances patents allow keen individuals to cash in with their skill and grit. Most of the time this does not happen. With companies, they are generally happy selling the old stuff with lipstick since it's easier, rather than innovate. I would claim that for businesses with less than astronomical R&D budgets trademarks and brands are far more valuable than patents, while patents act mostly as an outside markets legal leverage (i.e they provide a big stick against competitors but the only effect it has on customers is a slightly higher price).

Karunamon 12y ago

This speaks to the patent system being so far perverted from its original purpose that I feel it's time to seriously begin considering if we want to support it in any form. Are patents in 2015 being used more for "promoting the useful arts"[1] or more as a weapon for large enterprises to use against their large and small competition? This same broken-ness applies to another system of legal monopolies too: copyrights. Are those used more to "promote the useful arts" in 2015, or are they used more by rightsholders to stamp out that which they don't like? I wonder what our economic, artistic, and technological landscape would look like if we decided, as a society, that these legal monopolies are causing more harm than good, and that they should be severely curtailed, if not outright abolished? I wonder if it would really be as bad as the people who have a financial interest in these things say it would be? [1]: http://memory.loc.gov/cgi-bin/ampage?collId=llsl&fileName=001/llsl001.db&recNum=232 http://memory.loc.gov/cgi-bin/ampage?collId=llsl&fileName=00... (interestingly, the copyright laws use the same "useful arts" wording almost verbatim)

ams6110 12y ago
The thing about patents is that they are public. They encourage sharing inventions in exchange for a period of protection for the inventor. It is generally fair, I think, for an inventor to be able to see a return on his/her investment of R&D effort and expense. Without such a system, inventors would keep their work secret under "Trade Secret" protection or just not bother at all. I think abolishing the patent system would slow technological progress. The problem with patents is that they seem to be awarded for many "inventions" that do not seem to really be novel. Patent inspectors have not kept up well with the rapid pace of innovation that software allows. Fix that problem, and I think a lot of general unhappiness with the system would go away. Copyright? I'm not aware of any general problem with that. It's pretty simple, the original author has a period of protection for their work. What's wrong with that?
- dalke 12y ago
  > Copyright? I'm not aware of any general problem with that. If you do a Google search for "problems with copyright" you'll find many articles on the topic, including http://gizmodo.com/5989166/everything-wrong-with-digital-copyright http://gizmodo.com/5989166/everything-wrong-with-digital-cop... and http://epubs.utah.edu/index.php/ulr/article/viewFile/7/11 http://epubs.utah.edu/index.php/ulr/article/viewFile/7/11 and https://web.law.duke.edu/cspd/publicdomainday https://web.law.duke.edu/cspd/publicdomainday . To start, copyright terms are getting longer and longer, while "economists who have modeled the ideal copyright term have uniformly suggested that it should be far shorter than it is right now. Some have suggested that it should be as short as 15 years."

dalke 12y ago

This isn't useful without knowing the same numbers for 100+ years ago. Lincoln filed a patent on a mechanism to lift a boat over shoals and obstacles, which almost certainly wouldn't have worked and was never used. If almost no patented inventions were used in the 1800s then it's hard to use that as a metric for determining if the patent system has gotten worse.

logicallee 12y ago

What a mess. Starting at the title, there's no such thing as a patented discovery. (http://www.legalmatch.com/law-library/article/what-cant-be-patented.html http://www.legalmatch.com/law-library/article/what-cant-be-p...) Secondly, it really doesn't matter if "almost no" patented innovations get used, just as (to make an analogy) it doesn't matter if "almost no founders get VC funding" (!). There are over twenty million founders in the United States alone who would take $100k into their 'startup business' from a VC tomorrow. So what. "Almost no founders ever get VC funding" is a useless observation (even if it's true), and I make this analogy because here on HN we have a lot of experience with the cases where they do, and could rightfully see the sentence as a useless observation. There is less experience with using the patent system here, but what matters, of course, is patented innovations that do or did require the patent system. And anyone who has any experience whatsoever with this subject knows about what kinds of cases this applies to. I am not going to elaborate but I found the article basically totally worthless and clearly written by someone who has no information on the workings of the system. Clearly there is a systemic cost to having a patent system at all. But perhaps the reason the author had to write that no patented discoveries get used (which is a truism, since there is no such things as a patented discovery) is that the same is not true for innovations and inventions.

tedunangst 12y ago

> 95 percent of all patented discoveries from ever being put to use to create new products Is this really assuming that every patented idea is a good one? Doesn't everyone assume the opposite, that most patented ideas are crap? I'm not surprised to learn that 95% of crappy ideas never turn into new products. > More than likely, you won’t be able to put it to good use unless you have the multi-million-dollar resources required to launch a startup How is this worse than starting a business without a patent? I don't think patent law was also supposed to be a guarantee you'd get a small business loan.

derf_ 12y ago
> How is this worse than starting a business without a patent? The argument in the article is that if you don't have the resources to commercially exploit a patent yourself, then no one else will pay you for your invention, because a) the frictional costs in licensing from you are too high, especially when b) they can just steal the idea, since you are too poor to defend yourself in court. That creates an inefficient market. Personally, I think the effect of b) is smaller than implied, since an inventor could always sell the patent to a troll who can afford to defend it (though discounted by some large risk premium)... nevertheless I've heard of it happening. The effect of a) is very real. Just consider any software product given away for free... even a requirement to count how many copies are distributed for the purposes of computing a royalty may be inimical to the business model.

AndrewKemendo 12y ago

When we talk with investors one of the top questions is "What is your IP?" and that can mean a range of things but typically means "Do you have a patent?" When we were starting out I did a lot of reading on patents, the system of patents litigation etc...and decided that the best thing for us would be to ignore the whole patent system and just push forward our technology into the marketplace hoping that we would be moving so quickly that trade secrets would keep us covered for the foreseeable future. The thinking was: A patent only gives us the ability to argue our case for infringement in court. As a startup there is no possible way that we would be able to afford a lengthy IP court battle without serious VC money or revenue, at which point we should have been able to get the patent stuff figured out easily. Besides, a patent just tells the world how to do what you are doing which makes it easy to rip-off or change slightly as the ability to cover every single use case/implementation in a patent is basically impossible. I still believe this, but we had so much pressure from investors (that usually didn't invest) that I spent a good 80+ hours writing/drawing our patent and getting the provisional done. Seemed like a good compromise.

DanBC 12y ago
> Besides, a patent just tells the world how to do what you are doing which makes it easy to rip-off or change slightly as the ability to cover every single use case/implementation in a patent is basically impossible. For an actual example of this see the hair removal device that used a rolling spring to rip out hair. Competitors realised they could do the same by using a set of wedged discs. http://en.wikipedia.org/wiki/Epilator http://en.wikipedia.org/wiki/Epilator. (See the "rotating disc" section).
throwawaykf05 12y ago
> As a startup there is no possible way that we would be able to afford a lengthy IP court battle without serious VC money or revenue... This is essentially why many NPEs exist. You can approach them, and if they think your IP is being infringed by somebody worth suing, they will litigate it on "contingency". That is, they will charge you almost nothing but will keep the lion's share of any settlement or damages. As bad as NPEs are when they target startups, they are often the only recourse when faced with a big, well-funded infringer. The current widespread negative rhetoric against "patent trolls" does well in distracting startups from this fact.

throwawaykf05 12y ago

I'll preface this by saying that IANAL, but I've been tangentially involved in the licensing and sale of patent portfolios and have read hundreds of patents. I'm also an inventor on many. Most patents (including mine!) don't get used simply because there's no one practically using those inventions. The comment at https://news.ycombinator.com/item?id=8838681 https://news.ycombinator.com/item?id=8838681 hits the nail on the head. It's not usually because they are too expensive or risky to license or that the inventions themselves are not technically interesting. It's just that the market or industry ends up using technology (which itself is often patented) that does not infringe the vast majority of patents. As an example, I once saw a patent on sale that was a precursor to DHTs and could potentially read on systems like Amazon Dynamo. But the way they did DHTs was completely different from Dynamo, and in fact, different from Chord, CAN, Pastry, Kademlia or any of the other DHTs in academia and practice (all of which the patent pre-dated). Hence, as interesting as it was, it had no commercial value. I've seen this pattern repeat in many other fields of technology. The fact that only < 1% of patents are ever asserted simply reinforces this notion. This is not surprising, since in most engineering there are many ways to implement the same idea, and each of these ways can be patented. But typically an industry converges on a few ways of doing things and the other approaches lay unused. Does this mean the system is broken? Consider academia. Think of all the hundreds of papers that get published in computer-related fields alone. Then think of how many of those actually make it into production. Does that mean academia is broken? The patent system may be flawed, but this is not why. This article essentially is an ad for the author's new venture, simply using the "broken patent system" meme to get some free publicity. As an aside, the "create efficient market for patents" language TFA uses at the end is oddly similar to the rhetoric Intellectual Ventures started off with. Initially IV was adamant that they would only license and not litigate, but more experienced people in the licensing business knew that was laughable. After all, a patent is nothing but a right to sue.

jonas21 12y ago

It's worth pointing out that the author of this piece is considered by many to be patent troll. https://gigaom.com/2011/04/13/419-jay-walker-goes-nuclear-priceline-founder-sues-more-than-100-companies/ https://gigaom.com/2011/04/13/419-jay-walker-goes-nuclear-pr... http://arstechnica.com/tech-policy/2011/04/priceline-founder-sues-100-companies-including-google-apple-over-patents/ http://arstechnica.com/tech-policy/2011/04/priceline-founder...

mawburn 12y ago
Oddly enough, I think that gives him more credibility in my book. Who better to talk about a system being broken than someone who makes a living exploiting it?
- jonas21 12y ago
  Another way of looking at this is that his trolling has not been going so well lately [1], so he's trying a change in tactics. The "brokenness" that he sees in the patent system is not that it's too easy to profit from patenting obvious things, but rather that it's too hard. [1] http://www.law360.com/articles/573649/google-wins-invalidation-of-walker-digital-patent-claims http://www.law360.com/articles/573649/google-wins-invalidati...
logn 12y ago
I thought that too when I read the end of his article. And he states that only small/mid-size companies worry about infringement so his company is targeting them. In my direct experience at a 50,000 person company, large companies worry too. Our Internet proxy banned no sites except patent databases. Additionally, filing for patents is the other good way to reduce risk. I wonder, does professional liability insurance cover patent infringement?

Htsthbjig 12y ago

Patents in the US and Europe need serious reform: 1- They should update to the current world. That means using computer files like 3d CAD drawings or STLs. Today most patent's drawing are way worse than drawings 100 years ago(on purpose of course, as they don't want people to really understand the patent). Patents today try to obfuscate as much as they can so they give the less they can to society, but try to claim everything under the sun, so they receive the most from society. They should also let other types of documentation be presented, like audio, or video. Obfuscation should be taken care of, using standard formats for documentation, using standard terms. They try to patent already patented tech just changing the terms, so it looks different for the examiner. 2-Business and software patents should be banned. But this will take a fight, some court has declared business patents void. The software patent situation is surreal. Someone comes to your house and tells you you have to pay them for patents, but they can't show you!! If you don't pay they will sue you with a football team of layers.

DannyBee 12y ago

Jay has a huge stake in this, of course. http://www.patentproperties.com/ http://www.patentproperties.com/ He is also the guy who created walker digital. http://en.wikipedia.org/wiki/Walker_Digital http://en.wikipedia.org/wiki/Walker_Digital (look under "patent lawsuits and disputes") Despite his claims, he is in fact, a troll - he buys broad patents completely unrelated to his company solely for the purpose of suing deep-pocket companies for infringement. He has 719 patents, and cares heavily about monetizing them, having sued almost everyone under the sun. He sued Facebook for friending, for example. He realizes he is finally starting to lose the war, and writes pieces like this because he is afraid trolls like him are starting to finally get what they deserve. (Jay certainly is a smart guy, and he is certainly an innovative entrepreneur. I take serious issue with his business models around patents, though)

kibwen 12y ago
Hi DannyBee, we had a short discussion about open source licensing last month that I'd like to follow up on, but I haven't had any success finding your contact information or potential consulting rates. Can you contact me at ben.striegel@gmail if you'd like to continue? </offtopic>
Animats 12y ago
Right. He wants to become the Uber of patents. With his plan, patents aren't worth much individually, and they would be sold cheaply, in bulk, with his brokerage getting a cut.

diminoten 12y ago

At this point do any of you really feel you can talk about patents in an unbiased manner?

will_brown 12y ago

Here is a true story I have not previously shared on HN... While in law school, in attempt to defray tuition costs, I would order Livestrong style silicone bracelets and sell them at Daytona Beach bike week. After tinkering I began working with the manufacturer to mold the silicone bracelets with RFID chips and file a patent. As a law student, I found the patent filing process to bring real world practice to my classroom theory, plus I learned a lot about RFID technology in the process (mostly researching prior art, such as, RFID shopping carts; RFID one time use hospital bands; ect...). However, as a law student I had no practical (financial) way of bringing my idea to market. Nevertheless, I contacted Disney's director of park operations to discuss the potential of my RFID silicone bands acting as park tickets, monetary accounts and the general efficiency RFID bands could have of park operation efficiency (tracking lines, ride times, open seats, ect...). As one might expect I was blown off, given a nice generic response that there is no interest...but sure enough 7-8 years later the parks have incorporated RFID technology through the use of...silicone bands. I think such a story highlights the various positions one could take on our patent existing system. Some might say I was a patent troll, filing a patent where I knew I could never financially bring a product to market, others would argue that situation is why patents exist where the inventor needs to protect an idea where often times but for being the inventor/patent filer a giant corporation might come along and simply take an idea without any benefit to the inventor...finally some may say I should not have received a patent in the first place as RFID silicone bands are not non-obvious in the first place. Though I never sued, my own experience brings a certain bias to the table, and I would simply ask in countries that do not have a similar intellectual system to the US, is there an example of an inventor actually bringing an invention to market where they were not simply beat out by an existing corporation?

soup10 12y ago
You invented neither peanut or jelly or bread, should the pbj sandwich be patentable? The chances of you being the only source pitching RFID tech to Disney is zero. Sorry you didn't get their business. Did you pitch to any other companies? Did you expect Disney to license your patent and figure out the technical implementation themselves? Does your patent apply for non-silicone bracelets? Seems like RFID tech is and still is a legitimate business opportunity for many.. sounds like you gave up on it, why?

golemotron 12y ago

I'm so put off by the title I can't even read the article. Discoveries aren't patented - inventions are.

TrainedMonkey 12y ago

I think article completely skips over important point when quoting the statistics - majority of patents are virtually useless. If you account for that fact, 95% of patents never seeing use suddenly does not seem as bad.