This avatar-like use of Legal persons is undesirable, fully agree. A major component in international money laundering and criminal enterprises is discovering whose avatar $some_co or $my_foundation belong to. Small jurisdictions, mine included unfortunately, are easy targets for friends-of-friends-of-friends to allow such hidden ownership, and the international community should forbid it both at home and abroad.
Unfortunately, anything short of a constitutional amendment explicitly stating that corporations and other collective entities do not have $list_of_rights that one may possess as an individual would be very difficult to keep in practice. Of course, this also would have to be limited to collective representation, not a group of people in person (such as at a physical protest). It could be very messy at this point.
And it all sucks. I think tethering legislation to making corporations exempt from income taxes, and refactoring taxation on profits and loans secured against corporate ownership might be the only way to get it through.
Corporations were made without a constitutional amendment, they can be regulated without one. Don't like it? Lots of ways to run a company without using the government vehicle/definition.
That concept was created by the US supreme court judges interpretation of laws made by Congress. At any point since then, we (Congress) could have passed a late to clarify language or simply say "corporations are not people".
It wasn't. The misconception that SCOTUS declared "corporations are people" is a meme launched by those who think people lose their rights when they decide to act together. SCOTUS just confirmed they do not. Corporations are not people, never been, never will be, and you don't need an act of Congress to know that - you just need to be a bit better informed.
There is a legal concept of "corporate personhood", but it has nothing to do with "being people", it's a legal term of art. For example, it makes it possible to sue a corporation instead of trying to sue each of its shareholders and executives individually. And it wasn't used in Citizens United v. FEC at all.
The trouble is actually breaking that premise. The SC has ruled, effectively that money is analogous to speech. Undoing that would pretty much need an amendment to overcome. They could also find that trying to limit corporations at this point could be a violation of the 14th amendment.
I don't like it, I really don't agree with it, but the reality is that's what it would likely take to overcome counter arguments in favor of continuing corporate personhood. As I mentioned, it might be tolerated if it came with tax exemption, in leiu of new taxes against corporate/stock loans and more taxation on profit distribution.
CU vs FEC did not rely on the concept of corporate personhood. If anything, if this concept didn't exist it would be even stronger, because then there would be absolutely no legal reason to treat a group of people differently just because they're acting together. What would be the argument - you can do it individually, but once you gather in one building and have a banner at the entrance and a receptionist, you all suddenly lose your free speech rights?
No, you (the individual) do not lose any of your rights. However, the manifestation of a corporate entity should not generate a new right-bearing entity.
I get only one vote - making Me, Inc. should not provide me a path to be represented twice - as though to cast a second vote.
Money is not speech. This is tge court's error. Treating a thing as though it's a different thing or concept than what it is breaks everything and is quite literally insane. Else, with my free speech, I ought to just act as a mint. Either my self-generated fiat is now legal tender or actual, government-minted legal tender is already spoken for and means something precise, distinct from the transaction where it purportedly speaks.
A group of people can speak and transact - the solution to this dilemma is recognizing that a corporation is still full of individuals with unhindered rights, but no trickery allows those individual rights to be replicated - only represented.
> However, the manifestation of a corporate entity should not generate a new right-bearing entity.
Of course it should, that's the whole purpose of the corporation. That's the premise whole western financial system is built on - that the corporations are right-bearing entities. That doesn't mean they are people - it means that in the western legal system, certain rights can attach to entities other than people. That's no surprise to anybody who would look into how corporations work and why they were invented in the first place.
> as though to cast a second vote
Voting rights have never been part of corporate personhood, what are you talking about?
> Money is not speech
Money by itself is a resource. This resource can be spent on speech - I can pay money to facilitate my speech. If you prevent me from doing that, you essentially shutting down my speech - what is the use of it if nobody can hear or read it, because publishing costs money, and I am prohibited from that? In a separation of labor society - which by now is every society - money is a necessary prerequisite to use the services of society. And no (significant) societal activity can be performed without involving money, one way or another. Thus, money are not speech, literally, but money are a necessary gateway to speech.
> This is tge court's error.
No, that's your error by trying to misrepresent the court's decision in a way that is convenient to you for criticizing it. The court did not say "corporations are people" or "money is speech" - they said something that the opposing side activists turned into such slogans, but if you want to understand and not just scream out your rage, then you need to go to the actual meaning, beyond the slogans.
More accurately, corporations are a special class of people that can never be jailed or executed (at least in all but the rarest cases) for their misdeeds, merely fined. That's the real problem, they want the rights of people without the punishments of people.
It's not a problem because corporations never had "the rights of people" - people still do. People have free speech rights, and people can go to jail for crimes.
I'm not sure what you mean, people working for companies can and have been jailed. Or did you mean the legal entitiy of a corporation can't be 'jailed'?
Would unions be more like protests or like corporations? I'm trying to figure out the underlying principle used to determine whether a group of people has rights or not.
Stripping unions of their rights might be a bit controversial. On the other hand, "collective representation" is essentially the definition of a union.
We've been running that "public accountability" experiment with twitter mobs (and sometimes actual arsonist mobs) running around "holding people accountable" for whatever they don't like... And I'm not sure we actually want more of this. It doesn't seem somehow to improve anything.
That’s not public accountability. That’s vigilantism. Vigilantism occurs when the judicial branch fails to do the barest minimum of their fucking job. In case you’ve forgotten, the rules in society are written in blood. Whenever the government neglects their responsibility society at large will refresh the ink on the contract. As regrettable as this may be, the people to blame are not the ones in the mobs, but the ones who neglected to exercise their authority to enforce the social contract and hold criminals to account. Want it to stop? Stop acting shitty, take responsibility, learn and adapt. or retire to make room for those understand contemporary society if becoming a better person is so distasteful.
Enduring the consequences of one’s actions with complaint is not accountability, it’s a temper tantrum. Whether the consequences are administered by vigilantes or courts is immaterial to the earnestness of anyone’s accountability. The vast majority of people being publicly shamed have an elementary understanding of accountability and their hollow efforts are an insult to the time of everyone subjected to their rambling excuses, projections, victim blaming, lies, and other erroneous thought patterns.
I don’t want more bystanders getting caught up in the courts because they took action when our leaders sat on their hands. That said, I have no sympathy for the public figures having their legacies dragged through the mud after careers of horrendous behaviors get brought to light.
> Want it to stop? Stop acting shitty, take responsibility, learn and adapt. or retire to make room for those understand contemporary society if becoming a better person is so distasteful.
Nice round of victim-blaming. Don't like the random mob vigilantism? Well, it's probably your fault and that's the modern society for you, and again your fault for not embracing it enthusiastically. In fact, you are a bad person for it! Nice.
That’s projection buddy. Do you have a playbook? Because this comment is straight of the Republican one. project, lie, misconstrue in bad faith. Are you familiar with the site guidelines? Uncharitable bad faith responses are a no-no here.
I’m talking about sexual predators, people who wore black face in the past two decades, domestic abusers, and other unacceptable behaviors. If you think any of this is okay, bugger off.
What are you talking about? Indian mob Justice? Tripathi? Gamergate? Spacey? Weinstein? Trump? R Kelly? Travis Scott? Bill Clinton? Assange?
You’re doubling down on uncharitable bad faith interpretations.
I’m not suggesting you love or support these things, but I am concerned that you’ve taken a sarcastic defensive position instead of naming specific people to rebut my points. An omission of defeat perchance?
My point is that mob justice will continue until the government deigns the problem bad enough to enshrine these behaviors into law as crimes. Why are you having such a hard time understanding that this is a fixable problem directly resulting from negligent government?
If you should get anything out of this otherwise useless conversation, it's the difference between "omission" and "admission". Look it up, no need to thank me.
> My point is that mob justice will continue until the government deigns the problem bad enough to enshrine these behaviors into law as crimes
You mean the solution for mobs hounding people for wrongthink it for the government to make wrongthink a crime? Brilliant.
I don't think you're using the same definition of public accountability as the parent comment. I think parent comment just means that they are able to be identified and held accountable by law enforcement.
Law enforcement can request the documents, subpoena the contractors and see the chain of ownership - just like the judge did. Not sure what this has to do with the "public".
Current USPTO patent examiner here. The most effective way to eliminate bad patents would be to give examiners more time, say double the time across the board to start. If an examiner can't find prior art in the little time they're given, and they have no other reasons to reject the application, they'll have to grant it. The amount of time was (basically) set in the 1970s based on data from the 1960s. There have been some minor increases since then. Several orders of magnitude more prior art exists now. And while search technology has improved, it hasn't become orders of magnitude better. So I'd argue that the workload has increased dramatically since the 1970s. Simply giving examiners more time would probably greatly reduce the grant rate, and also incidentally reduce examiner stress levels. Patent examination is a tough job, as examiners rarely get enough time to do a quality job, and this leads to the high stress levels.
USPTO upper management is taking comments about the "robustness and reliability of patent rights" until February. You can leave your comments here:
Unfortunately giving examiners more time is only briefly addressed in this request for comments. I think the public should really drive home the point that the procedural changes discussed wouldn't be anywhere near as effective as simply giving examiners more time.
I do contracting for USPTO and have another perspective as an insider to their technology and internal processes (not legal), who works very closely with examiners and other stakeholders. The tools that patent examiners use is quite awful. Like many other government agencies, it’s embedded with legacy tools that are extremely obtuse, difficult to use, and time consuming. Many of these tools are decades old, unreliable, and have limited capabilities. We are JUST NOW starting a shift to the cloud (AWS), but most of that will be a “lift and shift”, keeping the old systems and practices in place while we figure out how to replace entire workflows. Basic functionality like searches, file transfers, data transforms, validation, content management, and archiving suffer from neglected maintenance or they’re so brittle that any little disruption can take a vital system down, further wasting examiners’ time. All of the above-mentioned issues are hidden time wasters that examiners have simply come to accept.
My point is, you many not actually need more time, rather you may need better and more modern tools that would vastly improve efficiency and accuracy of examiner workflows.
I'll agree that many of the tools are bad. I have a particular dislike for how slow Word is. But, I don't think that transitioning everything to the cloud is necessarily going to help. Word is slow many times because it freezes up when syncing. And a lot of the tools are good. EAST and PE2E Search have a lot of great features for power searchers that I'd like to see in tools outside of the USPTO. (But they also have a lot of annoyances.)
I don't think more than 1/3 or so of my time is wasted due to these sorts of things. That's significant, but it won't be the game changer that doubling examination time would be.
I don't know anything about what's happening on the backend, for what it's worth. I assume that it's always near exploding.
You are right that a transition to the cloud is not going to help. Bad software will still be bad in the cloud, good software can be just as good (and often better on several axes) when not in the cloud. Though from reading some of the complaints in the thread you link here, Amazon does have very good OCR software (called Textract), so that could help.
But on this point:
> And while search technology has improved, it hasn't become orders of magnitude better.
In general it has, it is just that the USPTO's software hasn't. I imagine a team of the right 2-5 people could make something better than you would wish for in your wildest dreams. But how to actually make that happen is another kettle of fish. Anyone capable of fixing this would most likely be better remunerated doing something else, but nerds are easy to snipe and even just reading your gripes here and in the subreddit has made me want to solve this problem if for no other reason than the humanitarian one.
> In general it has, it is just that the USPTO's software hasn't.
On the contrary, USPTO's internal search tool (PE2E Search) is overall good and has many features that I wish public search engines like Google had. The main difference is that it's designed for power searchers, not the general public. Yes, PE2E Search has a lot of issues, but the USPTO contractor who commented here has probably never used it to search for patents and thus has no basis for comparison. You should take what they said with that caveat in mind.
My basic point is that no existing search technology makes up for the sheer increase in documents to search. The last significant innovation in patent search was switching to computerized search in the 90s. The changes since then have been relatively minor, but the number of documents to search since then has increased dramatically. Maybe some AI based search will eventually be a game changer, but for now it's not (I've tried 5+ AI search tools and they usually aren't good) and I don't see that changing any time soon.
Improving the time/quality of examination would reduce the number of bad patents, and thus raise the bar for something to get patented, requiring MORE actual innovation, and less fake process based crap.
Pressure for (perceived) innovation is one of the things that drives bad patents. Removing this pressure has positive consequences (in addition to the negative consequence of potentially novel IP not being protected in time--but is that actually a bad thing? I don't know).
There's a parallel also in the world of academic paper publishing--the pressure for constantly innovating and publishing is a major reason for bad publications.
I am speaking anecdotally, from my experience as a past PhD student and a current young professional in the research industry.
what does the cloud have to do with the tools being old and creaky?
Is there some magic sauce that makes the search suddenly useful once it's sitting in AWS?
I ask because I see this ALL the time. technical people abusing business ignorance by using initiatives to improve tools to "move to the cloud". Unless you're telling me the problem you're solving has to do with elastic demand or too much costs maintaining infrastructure, this does NOTHING to solve the actual problem.
Do we imagine that suddenly this organization is going to start maintaining their stuff if it's sitting on AWS servers instead of their own?
From what I've always heard, of all the benefits the cloud has, reduced cost is not one of them unless your compute need is exceptionally small (ie, you only need a few t3.* instances).
That’s because nobody who cut costs feels compelled to go out and proselytize about it. At the start of the pandemic I helped dozens of customers cut their spending to $XX pm as they were inherently crippled during COVID (think travel, hospitality). My management team at AWS supported this effort. It was actually one of our strategic goals.
Anti cloud zealots are having their time just like pro cloud zealots did. You have to understand your workloads and cloud offerings to see if it’s right for you.
As one of the loud "anti-cloud zealots" out there, I agree with you that this is actually a workload-dependent decision (or a luxury product that you can buy to show that your company is rich and modern). I think a lot of big companies are going to be moving toward "hybrid cloud" in the near future if they haven't already: maintaining a few racks (or an entire DC) to handle their base load and then doing bursts of heavy computing in the cloud.
The days of the full cloud lift-and-shift are going away, and we're getting to the point where people make that decision rationally.
As an aside, I actually believe in the cloud enough that I am working on a startup for a piece of cloud infrastructure.
> None of these are guaranteed and will require much expertise in both initial choice-making and continuing execution.
I feel confident saying that the government does not have this expertise and never will, so this just seems like yet another taxpayer-funded boondoggle (aka, the status quo).
Our company matches what you describe to a T. We have some small web servers/services, but none under any significant load. No need to scale dynamically, yet we use Docker (with Swarm) on prem for like 3 worker nodes. So much complexity added because of FOMO and resume-padding.
And then the key decision-maker says if we don't do cloud architected systems, we'll have trouble recruiting developers with suitable skills...
The only benefit I've seen to "move to the cloud" without a full re-write is you can now double the performance of your cloud server without a full reinstall. Sometimes.
And end up with not much gain. :(
You pack your bags And you move to the cloud
There's somethin' missin' here at home
When you, you gonna move to the cloud?
Into the cloud where it all began
I'm always buyin' With the local and the junkies
This cloud life is one big pain!
But you, you had to move to the cloud
Into the cloud where it all began
"Move to the cloud" is usually an excuse for big organizations like the USPTO to modernize their technology and business processes. Business executives, for some reason, expect "cloud" to be more modern than "on-prem" so the modernization of your business processes and modernization of the feel of the UI goes along with a move to cloud.
Is it possible to use publicly available patent office data to create a parallel database and tools which the PTO folks could use? Perhaps there is room for the development of an open-source collaborative effort to create a parallel data to fight back the trolls?
It wouldn't surprise me, as faxes have some really weird legal exceptions carved out for them. For example, a faxed document is considered equivalent to the original, but a scanned image is not. So even though a scanned image signed with your private key would be much more verifiable than a faxed copy that is transmitted without encryption and printed in a shared office, the law considers the fax as better than the scanned image.
Which is all to say that it wouldn't surprise me if there were a legal requirement for an "original document", and if that requirement could only be met by physical mail or fax.
At least in the medical world the security requirements of documents at rest is much higher than ones in transit. So you can't easily do efax because as soon as you have a queued pdf its at rest. (It can be done. just not easily.) So when everybody switches over to voip they usually try to keep the old fax machines going which faxing over voip is hit or miss.
Faxes are (or were originally) point-to-point electronic transmissions -- one fax machine dialing via POTS to another fax machine. In addition, the received fax, and the response sheet received by the sender, have time and date stamps that give legally-admissible proof of transmission and reception (and the sender will get a report of failure if that's the case as well).
As a former fax server administrator (and troubleshooter/maintainer of everyday standalone fax machines), I think the point-to-point nature of traditional, non-Internet fax is the killer feature: no packets split up and resting on intermediate servers, etc. Fax servers have one or more individual fax modem cards, so the only network involved is before or after the actual fax transmission.
I know fax is outdated. There are other effective technologies to replace it. But I've found myself more than once speaking up as a defender of the technology because, as originally used and codified into law, it serves a specific purpose and, as a bonus, if you know how to use a photocopier and a telephone it's drop-dead simple to use.
No, patent applications don't need to be filed via fax. I've heard bad things about the various USPTO websites, so fax might have been the guy's preference as I can see it being relatively simpler.
(Again, like my other comments here, this is just my opinion, not that of the USPTO or US government.)
AFAIK email to fax (and vice-versa) converters have existed for a while ?
I'm much more annoyed that in 2022 we are still misusing pdf, treating it as a digital-first format rather than one more appropriate for archival of paper documents... (and with the associated "pdfs cannot be modified" myth)
PDFs are sort of lazy/arcane. Easy for author hard for reader. Layout your information for a print size and forever it shall stay. Bad for reading on most devices.
I'm not convinced that patent examiners could make good decisions on software given infinite time. A couple of reasons:
Let's suppose you had access to all the source code in the world. Given a description of a patented invention, is there any way to find out if it is already implemented somewhere? The answer is no, there is no decidable method for doing that. The proposition that there is, violates Rice's theorem. By contrast, in other areas, for example drug discovery, a patent covers chemicals of a certain class having certain substructures. Whether another chemical is covered is algorithmically decidable. Let me emphasise that: people are complaining about the tools to find prior are are bad, but we can mathematically prove that perfect tools don't exist. I'd suggest that the burden of proof, that sufficiently good tools can exist, should fall on those advocating patentability of software.
But of course, patent examiners don't even have access to all this code. Unlike in drug discovery, where the entire business relies on patents so any discoveries have been filed with the patent office, software companies don't need patents to do business so the vast majority of software ideas aren't filed with the patent office.
No, AIA doesn't remove the concept of prior art, or the requirement that an invention be novel. It's a rather technical change regarding who of two patent filers gets priority. An invention that was publicly disclosed, or on public sale, is still prior art, even if no patent was filed.
It seems to me that one of the biggest problems with patents is that it has become possible to patent the "what" instead of the "how". In most cases the "what" is obvious, it's the "how" that's hard.
An example would be the Amazon One-Click patent. That should never have been granted because the "what", ie. the basic idea, is obvious and once you have that the implementation is trivial.
To get a patent you should at least have to describe a method for solving a non-trivial problem and prove that it actually works.
I thought "how" was the whole point. Imagine I invent an air conditioner that's 100x more effective or efficient based on a new mechanical process I invented. I damn well better be able to patent that "how" despite a century of prior art in "what".
Yes, but that's the opposite situation to many software patents. If air conditioners didn't yet exist you shouldn't be able to patent just the idea of an air conditioner without coming up with an effective design for one.
The One Click patent would be like patenting just the idea of an air conditioner because once you have that idea any software developer worth his salt could implement it.
Except it wasn't: Amazon--like everyone else filing a patent--had a duty to bring the idea to market within the time frame that US patent law required, which they then did. _That_ is the how.
Demanding the patent goes into the specific details on the "how" gets us things like "they implemented it in JS but we used TS so that's legally distinct, this patent doesn't apply to us" (ignoring how idiotic software patents are, and how stupidly long they are allowed to be active for) or "they made their machine using sheet metal and distinct PCB components, we used plastic and an FPGA, this patent doesn't apply".
If you get a patent granted, and you sit on it, you lose that patent. If you make real the ideas/things described in your patent within the required time frame, your patent "kicks in" and you get to sue others for copying your idea, even if their specific realization of that idea differs from yours.
Reducing for how long patents are granted, disallowing "tweaking-a-thing to renew the patent", and either drastically cutting down the duration of, or entirely canning, software patents, would be a nice move though.
> Except it wasn't: Amazon--like everyone else filing a patent--had a duty to bring the idea to market within the time frame that US patent law required, which they then did. _That_ is the how.
That's not proof of non-obviousness. And even if it were, it's still not a reason to allow 'what' patents (which the law actually doesn't allow! But they get granted anyway).
> Demanding the patent goes into the specific details
You are arguing a strawman. A patent must describe the invention in sufficient detail for someone skilled in its art to reproduce. Incidental details shouldn't be (and I believe aren't, legally. What the USPTO actually does in practice is a different matter) grounds for calling an alternate implementation non-infringing.
What you're describing is a hideous perversion of the patent system. It allows patenting any obvious [1] idea so long as you are first to file [2]. Alternately, if the idea is novel and non-obvious, it grants patent protection without requiring disclosure of implementation. It basically grants patent protection to trade secrets.
[1] A test for non-obviousness: does an implementor care to look at your patent or reverse-engineer your implementation, or is a description of what the invention does sufficient?
> [1] A test for non-obviousness: does an implementor care to look at your patent or reverse-engineer your implementation, or is a description of what the invention does sufficient?
This seems like a wonderful test of obviousness to me.
However, the "what" could be: "A method of reducing the number of online sales that are attempted but somehow aborted".
The "solution" of having a single click to purchase, in the context of cached purchase info and permission, might not be obvious to everyone working on that problem. (Even though it might be obvious in hindsight - which is not a barrier to patentability.)
That "solution" is specific enough to not block other's from solving the same problem (avoidance of aborted purchases) in via different methods.
That would be the approach I would use to defend single-click against your test. (Not a lawyer, no special legal expertise, just working through the logic as I can see it.)
> the "what" could be: "A method of reducing the number of online sales that are attempted but somehow aborted".
That's a good point. But it does open the door to patenting so many things it would make business impossible - store layout? Ad composition? Sales timing? Employee treatment?
The other problem is the 'could' in your hypothetical - as far as I know, that's not what Amazon put on the patent application. Probably because they knew it is not patentable subject matter.
There's no requirement that you actually implement a patent to keep it. The patent troll industry runs to a large extent on patents that aren't being practiced.
You may be thinking of trademarks, which can be granted on the basis of an intent to use the mark in the market with a time limit thereafter to keep them.
"had a duty to bring the idea to market within the time frame that US patent law required, which they then did"
Do you have a reference for that ? I've never heard of any such "duty". There are many patents that have never been implemented yet remain valid.
Beyond that my point is not that they didn't show the "how" but that the "how" in that case was absolutely trivial and completely undeserving of patent protection.
I'm honestly of the mindset that at this point, the vast majority of patents, from what I've seen, don't pass the obviousness test. At least when it comes to process and software patents, which are very arguable in the first place.
I do with the costs for a patent were a bit front-loaded where it costs even half the total amount just to (re)apply, in order to better pay for the review costs.
No, it absolutely shouldn't work like that. When a patent is granted, you can sue over it, and challenging a patent at that stage means spending lots of time and money defending against an infringement lawsuit. The entire patent troll business model relies on people paying to not be sued.
The patent system was designed with the assumption that USPTO would do its job, and switching to an adversarial model for patentability would just make it easier to get obvious patents.
> spending lots of time and money defending against an infringement lawsuit
It works unfavorably the other way as well. If you have your patent infringed you have to spend lots of time and money advancing the lawsuit. More, in fact, since the burden of proof is on you to claim infringement. No matter how you slice it the end result will be the biggest organizations with the beefiest legal teams will win all the spoils of patents while independent inventors can only survive by attaching themselves to those behemoths. That's the situation that open patents were designed to prevent. Ideally patents should exist to empower inventors to be able to live off their ingenuity; not for the sake of rent-seekers to bully creators into entering a protection racket.
You make it sound like these concerns are even remotely symmetrical. GP is describing how (non-obvious) patents have a significant negative effect on everyone creating something potentially patented whereas your example is of patents not perfectly protecting everyone that chooses to participate in the system.
The purpose of the patent system is to facilitate the progress of the "useful arts". The existence of large quantities of bogus patents that need to be challenged in courts acts as a severe barrier of entry, hampering this progress - if we have a system where truly everything is automatically granted without review and has to be disputed in court, then arguably a patent system like that is a net negative, only hampering the progress, and thus has no right to exist.
Right, so the players with money can simply massively burden the minor players, often to bankruptcy.
A Patent is simply a ticket to start a lawsuit as a plaintiff. So just file, get your ticket, and start suing competitors, putting on them the burden of proving your patent is worthless.
That is the opposite of the way it is supposed to work.
Without some kind of penalty beyond the costs of patent & prosecution, this is massively anticompetitive.
If your point was that we are, in a practical sense, close to this now, then yes, I agree (but that was not clear to me in that comment).
Interesting that you view the patent as a sword. Depending on your view of mutually assured destruction, you could also view the patent as a shield.
Certainly this is what I was told when I started filing them at my mega corp. 3K for filing, 10K bonus if granted and helping shield the product in case we are served. Our patents can be horse traded to settle a dispute. Because I believed in our team, product etc. it was easy to think we should be capable to defend ourselves; we were the best and that meant the stragglers would come for us using any means available, including patent trolling.
Are you the legal department? Do you know what your legal team does with it? Do you really trust your management team to be good stewards?
The only upside to patents as originally formulated was they actually traded an implementation blueprint for exclusivity. A worthy trade. Many patents don't even do that anymore, and devolve down to "draw the rest of the owl" tier parking lots on ideas. IP attorneys have done nothing to skew away from this outcome.
The entire idea of defensive patents makes a mockery of the original intention. "Patents are so fucked that the only recourse is to get your own patents so that even though you may inftringe others' patents they likely also infringe yours and would lose as much as they can gain by enforcing their purpoted exclusivity." MAD.
Curious why you say that it mocks the original intention.
If they're infringing on you, and you're infringing on them, then it nets out. By patenting your own developments, you allow yourself to legally net out. If you don't patent it, then in the eyes of the law it is not equal. Seems like its a quantification of intellectual property, which doesn't mock anything.
The issue at point with the patent system is that it was intended to incentivize innovation, and the evolution of the State of the Art. The building of large general patent portfolios by wielded by NPE's as a financial instrument does the exact opposite.
So while you might "net out", said netting out is not helping society actually advance, in fact it makes it more difficult to do so as you try to avoid potholes created by patent x-1 in your own journeys to actually innovate/invent.
The moment you get a self'sustaining finance engine implementable from a legal construct, it will be beaten reoeatedly, as fast and hard as possible til all the money possible can be extracted.
Like many weapons systems, patents can certainly serve defensively as well as offensively. In this case, defending against others using them as offensive weapons.
Patents can also have some marketing value.
The one thing the do NOT do is universally stop infringement in real time, which is what people think they do.
If you have a new product/technology, a large company that wants to use it will simply go ahead and litigate it later. You will have a ticket to sue them. They'll have their defensive wall of patents, and maybe you'll make a deal and settle out of court. If not, you'll try to stay afloat and if you manage to fund the suit, in 9-15 years after all the appeals, maybe you get a big judgement.
If it's a small or Chinese company, they'll just run with it, you can sue them, if you're lucky, you'll get an injunction to have products seized at the ports by customs, and you'll never collect a penny at the end because the company will be long dissolved. They'll have stolen some of your market with impunity.
Medium-sized companies might actually respect a patent, because they are intending to stay in business, but don't have unlimited resources.
Make fees means tested and scaled to income or wealth. Make fees scale according to a power law. There are numerous ways to level the playing field. We have only to improve upon the current system and cannot let perfect be the enemy of good.
What? What you are proposing has nothing to do with the perfect vs the good, it is a massive fantasy completely ignorant of how things actually work.
Fees are merely a rounding error in the overall cost of patents, prosecuting (obtaining) them, pursuing cases against "violators" or defending them. The fees are in the $hundreds to small $thousands of dollars [0]. It typically costs $20,000 to $50,000 in patent lawyer fees to get a patent. A company I was personally involved with ran up over $350K in attny bills to obtain only a handful of patents. The fees were a rounding error.
Fees for prosecuting a "violator" or defending a suit? Again, court fees are in the $100 range. Just the opening motions would be in the $20,000 range easily. And that does not even begin to account for the technical and executive time to understand and mount a defense.
I've been directly involved, and one thing that is absolutely the opposite of scalable is the court system. It is massively time-consuming and money-consuming. Worse yet, it takes many years for any case to wind it's way through the system, often more than a decade.
Yet, you are proposing dumping the entire issue on the courts and attorney system. How are you proposing to mitigate those costs?
Seriously, not to be rude, but you should stop positing about stuff of which you are clearly massive ignorant (or actually explain how your proposed solution would actually work among all the factors).
Help me understand how cost scaling doesn't fix the problem of "players with money can simply massively burden the minor players, often to bankruptcy." If it becomes more costly for players with more money to burden minor players, then would they not burden minor players less?
Reducing costs might help, but how would you go about reducing the costs?
As GP points out, the most of the cost isn't government fees. It's paying your own private lawyer or law firm, for their time and advice, assuming you choose to do that. And to the other party's lawyer if you lose in litigation, perhaps.
Your lawyer is a private arrangement which mostly doesn't involve the government. The government fees are already low.
Given that, how does your proposal differ from "patent lawyers should charge much less for their time, to people with less money"? It's hard to imagine them voluntarily reducing their income by a large factor to a large number of people, or agreeing to take on lots of low paid work when they have better offers.
But there are other models, e.g. no win no fee works in some fields.
For the small players, you aren't reducing the costs
This includes but is not limited to 1) the costs of the courts. 2) the costs of the attorneys to defend, 3) the costs of the technology and executives to mount a proper defense, 4) the opportunity cost to the small defending company which COULD OTHERWISE be focusing it's resources on something productive like a new product or support (vs defending a bogus lawsuit).
Again, the courts do not even begin to scale - the courts are the opposite of scalable.
The new class of enabled patent trolls may lose one case, but they'll win others, possibly because they've bankrupted their victim, and can continue to plague the rest of society.
Moreover, the courts are massively inconsistent. Again anti-scaleable. The inconsistencies get worked out through appeals to higher courts. This literally takes decades and hundreds-of-thousands to millions of dollars per case. They do not get worked out when it is state cases, which is why we have already have venue shopping (you know about the East Texas patent scam courts, right?).
And your so-called "solution" to charge big players orders of magnitudes more cannot be gamed? Simple, make a small company, pay the small fee, buyout later. Or syndicate the fees, or get rounds of investors to handle the fees, since the return is virtually guaranteed. Ya, then you change the fee structure (years later) and the game begins again.
The fees are only a rounding error in the costs, and if you think exponentially higher fees cannot be gamed, I'd like to talk to you about a fantastic deal on an oceanfront property in Kansas, because you are so friggin gullible.
No, automatically granting patents with some weird scaled fee structure and letting the courts sort it out is one of the worst ideas ever. You would literally lay waste to entire sectors of innovation. It would be only a few years before people would soon be screaming for proper centralized regulation and a patent office capable of judging obviousness and prior art; congratulations, you've just re-invented what the founders invented nearly 250 years ago.
Seriously, you are making a nice demonstration of how ignorance of how a real system works creates the illusion of finding wonderous solutions.
For every highly complex system problem there are a huge variety of simple solutions, all of them wrong. Congrats, you just found one.
The greatest costs are how much time you spend, your attorney's spend, etc. which are not arbitrary fees that can be increased or decreased by decree. So increase or decreasing fees won't improve accountability much.
The basic problem is patent cases are inherently highly complex and specific to particulars and context, and the legal system is inherently inefficient and unpredictable.
These are worst case legal situations for good actors, but the best case terrain for bad actors that can carefully select the battles they want!
The only "simple" solution I can think of is, that a pattern of patent troll behavior is explicitly made illegal, and judgements and findings against trolls can puncture normal limited liability protections of corporations and business arrangements.
Taking out the serial trolls could then be made profitable and repeatable for legal entrepreneurs, who can assemble the deep pockets, and accept the large risks, required.
Because these questions are so obvious it seems like trolling, sorry for the impatience.
Having run businesses, been involved with patents and the courts, some things are blindingly obvious. So I'll step back a bit.
First, the courts are insanely overworked, so things take forever, lawsuits are insanely expensive for both sides. Most importantly, the entire court system is structured to be anti-scaleable.
Even attempting to use the courts as a scaling solution works against the entire design. If you are sued, you have lost the minute you get served - defendant always pays, and the entire effort and costs are on you, even if you win. The only solution would be to redesign the entire court system, and since the courts are constitutional creations, that means literally re-constituting the entire country (Constitutional Convention, dissolve the old constitution, start from scratch; I can hardly think of anything more dangerous in today's climate).
On the small business side, there is literally nothing that can be done.
Even take a thought experiment where someone magically funds a bottomless supply of money to defend patent cases — no small biz ever spends a penny on attorneys and court costs, and can always afford the best attorneys (nevermind that wrongly accused criminal defendants still need to get by with underpaid & overworked public defenders).
This is still a massive unbearable cost for the small or medium sized business, simply because of the huge of management distraction involved in running a lawsuit. In a lawsuit, it is NOT just "let the attorneys handle it". Every case is unique, and the attorneys are handling only the legal issues — they need to be educated from scratch on the issues in the case, and all that time and effort to educate the attorneys comes from the defendants. Then, the defendants must to sit for depositions (a whole day or more), which need extensive preparation, and be involved in preparing for trial, which just blows entire days or weeks out of the schedule, and so on...
So, even if the external costs are 100% paid, it is still enormously costly. Even if you also paid every exec and employee involved their entire fully loaded employment cost, it is STILL too costly, because of the opportunity cost. Those person-months of time are all taken from the company's productive work on their products.
Now, multiply this by dozens or hundreds of lawsuits on every patent, trying to simply sort out whether the patent is even valid. The overall cost to society would be insanely massive. Giving each patent examiner 10X the time (vs the simple doubling requested by the examiner's comment above), and doubling their pay would not even be a rounding error compared to the costs you would impose on every innovative business with such a court-based plan. And, the results would be worse.
Part of the reason I find this annoying is that I also used to start from a Libertarian perspective. It is very attractive. But every time I started to work through how a Libertarian solution would ACTUALLY work, I found that even the first-order consequences were ludicrous, and usually ludicrously expensive. I would up re-inventing the government structures that we already have. So, it is either naive, or a trope to sucker naive people into trying to tear down the institutions that society has already built. Of course these need to be improved, and they should be, but the L approach really doesn't begin to work.
Moreover, let's go outside your paradigm of costs, and do a thought experiment that assumes that it is solved. Even then, this would be a bad solution, because it takes too much time for either side.
If you are a genuine inventor, and have a truly novel, original, valuable invention, you want the patent to deployed and fully enforceable as rapidly and fully as possible. Waiting years for multiple cases to sift their way through the courts only allows others to infringe for those years. Even if you rightly collect judgements in the end, those are unlikely to make up for the market leadership opportunity cost you lost to the infringers.
If, OTOH, you are a small-medium business being sued for a bad patent, you also want it clearly defined that the patent is invalid, so you can move on. Waiting for multiple courts to decide only costs you more money, distraction, and market opportunity.
What is really good for everyone is a very serious, fully funded, fully staffed and highly competent National Patent Office, which can effectively and reliably determine patent-ability, and is widely respected for its expertise. That is best for everyone because there are clear boundaries. It would also mean far fewer patents because there are a LOT of junk patents out there.
I think we need a name for the fallacy that a process which accepts nearly every application is the same as no process (the same comment repeatedly shows up for warrants). With the former, you only get things which are designed to pass the process. With the latter, you get everything.
That's the opposite of how patents are used, amd where their value lies. They're no the defense your idea presents; they are weaponized offense, to which the only response is increase your own arsenal.
What you're basically saying is "every country in the world should have nuclear weapons and then let their respective god(s) sort out the winners if there is a dispute"
Automatically grant every patent application but equally allow every granted patent to be challenged at no cost causing the patent rights to be suspended. The patent owner then has 5 years to prove the claims in court at their own cost.
I think a much more efficient method would be to make the rule that if a citizen finds prior art more than 5 years older than the filing of the patent, then the patent holder must pay $1000 to the citizen and the patent will be invalidated.
If the patent holder does not pay within 6 months, then all the patent holders patents since then will be invalidated.
It has to function without involving the courts as they will bleed anybody who are no rich.
This is simple, gruesome, but effective. I just can't imagine the politicians wanting this efficiency.
> a much more efficient method would be to make the rule that if a citizen finds prior art more than 5 years older than the filing of the patent, then the patent holder must pay $1000 to the citizen and the patent will be invalidated
This would instantly lead to every patent being constantly challenged by everyone. All the time. Since you've created a non-judicial venue for these claims and counterclaims to be settled, you've also created a parallel legal profit centre.
Vigilante justice is terrible not only for being gruesome, but also quite inefficient.
Tax patents as "property" whose maximum damages are proportional to the taxes paid? Give the owner of the patent a "grace period" and have the taxation schedule ramp up over the life-time of the patent. So, for instance: .1%, .5%, 1%, 3%, 5%, ...
I have serious doubts that more examination time is the solution here - at the end of the day, the only people that have an incentive for completely thorough search are the people filing or defending themselves against the patent. And the people filing obviously make sure their language doesn't easily bring back prior art. Meanwhile you have no skin in the game at all.
I would posit the better solution is curbing overly broad/abstract patent language that can be used to litigate anything and anywhere - and you can use patent trolls to do this work for you:
Pretty much any NPE patent portfolio will work as a great benchmark for what not to allow, as they go out of their way to acquire poorly-examined patents with the exact characteristics i mentioned.
> And the people filing obviously make sure their language doesn't easily bring back prior art. Meanwhile you have no skin in the game at all.
You'd think so, but standard operating procedure for most patent prosecution is to intentionally not perform a prior art search. If you do find something relevant, you have to disclose it in your IDS. So let's say you pop in a few search terms into google patents, and there's ten thousand hits. You know only a few are relevant, but you don't know which few. And if you don't submit the relevant reference that was on page 99 of those search results, your patent could be invalidated in litigation some day because it could be construed that you were hiding that reference from the examiner. So you might think that you should just submit all 10k references? Wrong again, it could look like you're trying to bury some super important reference in a sea of garbage. So by opening one browser tab and typing in a couple of search terms, you've essentially shot yourself in the foot one way or another, and any patent that ever is issued from your search will have a target on it's back forever. So, most patent attorneys will ask the client for relevant references to cite in the IDS and have a standard practice to not perform any prior art searching for prosecution purposes. Patent attorneys are a paranoid bunch.
> I have serious doubts that more examination time is the solution here - at the end of the day, the only people that have an incentive for completely thorough search are the people filing or defending themselves against the patent. And the people filing obviously make sure their language doesn't easily bring back prior art. Meanwhile you have no skin in the game at all.
While I agree with you that multiple stakeholders are incentivized to do thorough searches, not everyone agrees on that, and those stakeholders rarely ever do thorough searches. People aren't Homo economicus.
Applicants are required by law to provide prior art on an IDS form. Usually that prior art is close but not close enough. And almost no one submits third-party prior art. I've never once received a third-party prior art submission.
And as I said, not everyone agrees that these folks are incentivized to do good searches. For example, many patent attorneys recommend against doing patent searches for various reasons.
> I would posit the better solution is curbing overly broad/abstract patent language that can be used to litigate anything and anywhere
I strongly agree that enablement requirements should be higher. My understanding is that would require a change in the law, which would make this much harder than increasing examination time. And don't think that enablement rejections will take a lot less time than prior art rejections for examiners. Attorneys love to argue that sort of stuff, so rejections which are basically arguments are often time consuming. A prior art rejection can leave a lot less wiggle room for attorneys.
(Again, like my other comments here, this is just my opinion, not that of the USPTO or US government.)
> And while search technology has improved, it hasn't become orders of magnitude better.
Are you saying that search technologies of 2022 are not orders of magnitude better than the search technology in the 1970's?
Search tools in the 1970's were basically manually panning through microfiche. This was the time before even relational databases were commercially available, let alone full text search across thousands (or billions) of documents going back hundreds of years. The tech that we have now would be literally unbelievable to most practitioners in the 70's.
To be clear, I do think that patent searching has improved. My point is that it hasn't kept up with the shear number of documents available.
You have a point about the switch to computerized searches. Searching by examiners used to be looking through paper files, not microfiche, though. But patent search technology hasn't improved appreciably since full text patent search was introduced in the 1990s. There have been a lot of new documents to search in the past 25 years alone, yet there have been few changes to examining time.
Also, full text search is probably not as useful as you think for patent examination. For many technologies it's the best way to search, but for many others (like a lot of what I examine), text search is much less useful than simply flipping through a ton of documents, looking at the drawings. It's common that important details exist only in the drawings or are most easily spotted in the drawings. So this limits the improvement one gets from switching to computerized searches.
And, there's a big advantage to paper documents that wasn't maintained during the switch. From what I'm told there were a lot of useful notes from previous examiners written on the patent documents. Those notes were entirely thrown out when the USPTO switched to computerize searches. They could have digitized them, but USPTO upper management isn't known for thinking ahead. That's a loss of a lot of institutional knowledge. At present there is no way for examiners to share margin notes, and there should be.
(Again, like my other comments here, this is just my opinion, not that of the USPTO or US government.)
Sounds like they’re saying search tools available to employees at the uspto are not magnitudes better. From the other comment they’re using decades old tools.
I would also like that simple straight forward language is required and the typical (lets call it) claim stacking isn't allowed.
A lot of patents would fall under obviously not palatable, or obviously priority art if they where written in simple to understand language.
Also patents should not be legal if they fall under "everyone who looks for a solution to the problem they solve would find it (or something very close to it) by spending around ~100k in salaries on normal employees doing the research". (I choose 100k€ as this is where I live roughly a more senior and two non qualified junior software devs working on it for half a year, I also choose it because it less then what fully invalidating a absurd patent can easily costl.) I just don't see a point patents for anything any arbitrary company could easily invent by throwing "just" 3 non highly specialized people at it. As many companies would do so anyway if they need the problem solved. Such patents don't protect innovation they hurt innovation. Alternatively allow patenting them, but only with a patent live spawn of 2 years, i.e. "grant a head start for the first inventor without hampering innovation in general too much".
I hope you don't mind if I ask a few nosy questions.
1. How much time do you get given to perform a search? How comprehensive is searching (and how much time is given) if PCT or EP searches have already been performed?
2. Given existing citations (e.g. from a US PCT search), how long do you get to perform examination? How long do you get given for later reports?
3. How common is searching following amendments and how long do you get given?
4. How much time do you get given for further reports?
5. Do examiners do classification as an additional duty? If so, how much time do you get?
6. Have you Epoque (the EPO's search software)? If so, how does it compare to the tools you use?
1. and 2. Depends heavily on the patent classification and seniority. I get around 20-25 hours for a first action, much less for subsequent actions. I'm a newbie, though. Primary examiners in my area probably get only about 10-13 hours for a first action. The time I get is for both search and examination.
Comprehensiveness varies and can be independent of whether other offices have done searches. It can be hard to get even two examiners at the same office to agree on what good prior art is. I've inherited applications from an examiner who retired and I didn't always agree with their prior art.
I tend to use foreign searches as starting points for my own searches. I'd guess about half the time what I find is the same as the foreign search or comparable but different. Often I find clear deficiencies in foreign searches.
The time I get does not change if there are foreign actions. I get so little time that I hesitate to even write the previous sentence in case it gives upper management ideas about where to reduce time...
Searching at patent offices is never particularly comprehensive in my experience. If someone wants a comprehensive search, their main option is to do it themselves.
3. I am required to do at least a cursory search after any amendment as far as I'm aware. How detailed the search is varies. See the next point for how much time I get.
4. I get about 4 hours for a final rejection. The US has "after-final" actions as well which can provide up to 3 hours if I recall correctly, but are much more limited in scope and rarely used properly by applicants in my experience. After-final actions should be used mainly to cancel any claims not declared allowable by the examiner, in my opinion.
5. All USPTO examiners have classification as one of their duties now, but they are given very little time for this. The time varies between 0 time, 30 minutes, and 1 hour depending on the results of an approval process.
Longer version: The USPTO recently made some significant changes to classification and docketing. Applications are docketed to examiners based on a combination of the CPC and USPC classification now, with the eventual goal of eliminating the USPC component of the docketing system. Here's how it works: Poorly paid contractors classify patent applications. Based on the classification from the contractors, applications are docketed to examiners. Examiners then have the opportunity to correct the classification if it's wrong. As it turns out, poorly paid contractors don't classify well. I'd guess that about 10% of the applications I'm docketed have serious classification issues. The precise number probably varies appreciably between examiners. I will try to correct the classification issues with a process called a C* challenge. This requires approval by examiners called SCEs. The SCEs will check if they agree with the examiner's proposed classification. Sometimes they'll add their own classification, but usually not. The amount of time an examiner gets is zero if none of the changes are approved, 30 minutes if the changes are approved but the changes do not cause the application to be transferred from the examiner, and 1 hour if the changes are approved and the changes cause the application to be transferred. Unfortunately, properly classifying applications frequently takes far longer than 1 hour. This is particularly true when examiners have to classify applications in areas they know little about.
I don't bother changing the classification at this point if it seems mostly right because the amount of time I get for correcting the classification is so small. I will only try to correct the classification if it's egregiously wrong.
6. I think I saw some screenshots of the EPO's software once, but I don't really know how it compares to what the USPTO uses. For what it's worth, the USPTO's new public search tool is very similar to the internal tool. The main difference is that the USPTO decided to only include US patent documents in the public version, which is a shame. https://ppubs.uspto.gov/pubwebapp/static/pages/landing.html
(Again, like my other comments here, this is just my opinion, not that of the USPTO or US government.)
The whole process has a scaling issue build in, meaning you would need to scale both required time and people for the review process as time marches on.
I've thought exactly the same thing before. In my view, the amount of time an examiner gets should be directly tied to the amount of prior art needed to search. And fees should automatically increase as the amount of prior art increases. There should be an inflation component to fees as well.
The USPTO seems to be doing decently over the decades in terms of increasing the number of examiners, though lately I know they've had a lot of difficulty hiring.
To be fair, it'd also help if it didn't cost money for concerned citizens to submit the proof required to demonstrate prior art. Because even if you give examiners twice the time, that's only twice the work getting done, instead of orders of magnitude more with the help of people who are already experts in a field and can't believe a patent was granted because of [fill in prior art here].
Patent examiners are not the enemy, and someone needs to do the work regardless. I feel bad for them myself, because their tooling is apparently terrible. Makes me wonder if I should take a look into the space and see if I can come up with some ideas for a halfway decent set of tools.
I've seen a lot of patents whose prior art could be found by spending a bit of quality time with a thesaurus, or a halfway decent index.
> I feel bad for them myself, because their tooling is apparently terrible. Makes me wonder if I should take a look into the space and see if I can come up with some ideas for a halfway decent set of tools.
The search tools are acceptable, but could be improved a lot. To get ideas for improvements, you should talk to actual examiners and try searching for patents yourself. Unfortunately, too frequently people who don't know much about how patent searching actually works propose "improvements" that aren't actually improvements.
While well-intentioned, this site is doomed to mostly be unused by examiners. The classification search doesn't work. Classification search is a critical feature for patent examination. And the classifications are produced by machine learning, which usually produces poor quality classifications (despite loud pronouncements about how great machine learning is for this task).
The internal search tools work mostly by keyboard, and this search site works mostly by mouse. Mouse is much slower in my experience, and this matters a lot for time-constrained people like patent examiners. The main advantage of the internal USPTO search tools is speed, not anything fancy: https://news.ycombinator.com/item?id=30978043
The documents on the "Prior Art Archive" have tons of broken images, too.
> I've seen a lot of patents whose prior art could be found by spending a bit of quality time with a thesaurus, or a halfway decent index.
Most of the time this is not the case. If it's something that simple, it would be easily rejected. Keep in mind that when the media says a patent covers X, it probably doesn't actually cover X. It probably covers something far more specific that isn't a problem for anyone.
(Again, like my other comments here, this is just my opinion, not that of the USPTO or US government.)
IMO the "most effective way to eliminate bad patents would be to" set patent lifetimes that are industry/field specific -- you get a number of years of patent protection that should be enough to yield a positive ROI in that industry/field.
So pharma might get 20 years like they do today, hardware might get 12, software might get 8, and cryptography might get 5 (no one ever turns much of a profit with cryptography patents -- the entire industry avoids them like the plague).
This will greatly discourage patent trolls because they won't have enough years to shake people down. But it won't discourage legitimate patent owners, and it will encourage continuous innovation (so that products can keep some patent protection all the time).
Not associated with the USPTO, but my name is on multiple patents.
The problem is that examiners have no real way to determine what is "obvious". Every new field is a gold rush, and I've seen multiple fields slowed down dramatically by it. Worse yet, those rushing to new discoveries are usually not those rushing to file patents. This is most clearly where the patent system is destructive.
I would like to see a rule that it is on the issuer of the patent to demonstrate that not only does it seem novel, but their patent is on something that could have been done, and would have had a market, for the previous decade. To demonstrate non-obviousness not by someone's say-so, but by the fact that people failed to figure it out.
> And while search technology has improved, it hasn't become orders of magnitude better.
The old "search technology" was "shoes" (boxes) of 5-20 patents arranged by patent classification. Patent examiners literally walking through the stacks of files to get the relevant shoes. This takes more physical time than doing a classification search using a computerized search tool.
There were some advantages of the old system that were not transferred to the new search. Specifically, in the old system Examiners would see each other as they were walking the stacks. Notes could be left on the paper copies in the shoes. This knowledge sharing is not included in the current USPTO system.
This question is hard to answer as the time given varies depending on the patent classification and seniority. For the application which I'll post an office action for this afternoon, I will be credited 22.6 hours. (I can't claim this is representative of what I'm working on as a whole. Looks to be a bit high for my current docket, but I don't know if my current docket is representative either.) I'm a new examiner and that's the most time anyone will get for one of these applications. A more senior "primary examiner" would only get about 11.6 hours according to my estimate. In that amount of time, try searching for and writing a 10-30+ page report on any non-trivial technology that you have only some familiarity with...
For the same application, the next action I take will get significantly less hours. I get about 4 hours to reply to an amendment (if it's rejected and it usually is). That includes searching and writing it up. I think examiners typically exceed that time and have to go under time for other tasks in order to reply to amendments.
(Again, like my other comments here, this is just my opinion, not that of the USPTO or US government.)
Thanks, that does seem like quite a short amount of time. I've seen what patent attorneys can do to the 2 page technical description that I've written (turn it into 100+ pages of legal nonsense), so I'm sympathetic. IMO it really seems like the USPTO is way understaffed and has been for quite a while then, since it would seem that the majority of the 5+ years is literally just sitting there waiting for someone to get to it.
It probably creates a snowball effect because examiners frustrated by their inability to do quality work within constraints they are given, probably churn out , so lower qualified ones/having less options, stay on the job, resulting in further decrease of quality... You must be onto something.
As someone who seems to have insight: Are the actual workings of the patent system (not the letter of the law, but how it’s used esp by those with money) such that the right AI could be put in place to filter out the majority of bad-faith patents?
The main problem is searching for prior art. There are AI search tools but they usually aren't good in my experience. It's rare that an AI search tool will return prior art that can be used in a rejection. Usually the prior art these tools find is related but not good enough. But sometimes (perhaps through random chance), a solid reference can be found. I found a 102 reference (the strongest kind) a few weeks ago for a recent application I worked on by using an AI search tool. I missed that reference earlier due to a text search I did missing some synonyms if I recall correctly.
Whether that’s true of current AI or not, it’s temporary.
Finding prior art is inherently a “graphy” problem and current AI is getting better at graphy problems by the day (probably even by the hour). I have zero doubt that AI could solve this problem, but am unsure whether it will be allowed to.
I think AI searches could be much better even without an improvement in the technology. Probably the best AI patent search tool would be written by a ML engineer who has spent time examining a wide variety of patents. The current tools seem to be written by people who have only a cursory understanding of how patent search works, and that limits the usefulness.
For example, the current AI search tools don't seem to look at patent drawings at all. This is despite the fact that in many technologies, the drawings are the easiest way to determine similarity of the technologies. The words used vary a lot, but the drawings are frequently quite similar. Existing technology could be used to make a big improvement here, I think, but the problem is that people writing AI search tools seem to go for the easiest approach and only look at the text.
It does get more complicated than that. When I examine applications with flow or electrical circuits, frequently I'll run into circuits which are equivalent in some sense but arranged differently. An AI patent search tool should be able to handle this problem.
(Again, like my other comments here, this is just my opinion, not that of the USPTO or US government.)
Otherwise, I'm confident there's information out there on how to search patents, but I haven't seen it.
But I think examining an actual application will be more useful for you. You can do this yourself as practice. Find a patent application that was examined. Be sure to pick an application and not a granted patent. In the US the number will be formatted like USYYYYXXXXXXXA1. You want to do an examined one so that you can compare against what the examiner did. That will be pretty easy if you pick one that was published a while back, so YYYY could be like 2015. On Google Patents for the application you picked, look for "External links" on the top right and go to "USPTO PatentCenter". Then under "Documents & Transactions" on the left, look for "Non-final rejection". If there's a rejection posted then you can see what the examiner did and compare against what you did when you're done.
Look at the independent claims of the application and find prior art that fits the claims. Don't check what the examiner did before you search, just try searching on your own. Write an office action (the report listing why it's the same). "Map" the claims by putting in parenthesis after each claim element why the prior art shows this feature. For example:
> A widget (Bob fig. 6 shows a widget) with blue lights (Bob fig. 6 shows the lights; para. 0076 says that the lights are blue).
When you're done, compare against what the examiner did.
Be aware that it probably will take you several weeks or longer to do your first one.
You could also read a book like Patent it Yourself by David Pressman to better understand the legal aspects than what you'll get from the USPTO's slides.
I have no idea as these tools rarely explain how they work. There are a lot of AI patent search tools and I'm sure each of them works differently.
Also, don't underestimate how difficult finding synonyms is. Many examiners, myself included, keep lists of search queries with a lot of synonyms to use later. I've been doing this for nearly two years now and my saved search queries keep growing. I don't expect this to end anytime soon.
(Again, like my other comments here, this is just my opinion, not that of the USPTO or US government.)
Former examiner here. Largely agree, however, you and I both know you can string together some hand-wavey 6-reference 103 if you have a gut feeling you shouldn't grant something but you haven't found any better prior art ;-)
What do you think about the idea of having a "challenge period", i.e. a time where other parties than the applicant can come up with solutions to the problem stated in the patent (or with prior art)? I bet there is an army of volunteers that would want to help fight illegitimate patents. Also, if $BIGCORP tries to file a patent application, then why can't $SMALL_COMPETITOR contest it during such a challenge period without going through a court of law?
A lot of people propose things similar to what you have, but in practice these sorts of things almost never are used.
You also don't need a formal procedure like this. I'm sure if you contact the examiner assigned to the application, they'll listen if you have a valid legal reason to reject the application.
(Again, like my other comments here, this is just my opinion, not that of the USPTO or US government.)
The original article describes three small (actually - one-person) companies going after some big guys. There is a patent troll behind them, but the article mentions that such a discovery is not an ordinary thing to do. At the patent troll is still a much smaller company than defendants- I guess.
Besides, the idea of punishing me for being successful, that is - having more sales of my product, while popular, seems extremely counterproductive to me.
Specifically on the prior art search aspect, there should be a bigger burden on the applicant to find meaningful prior art. If the examiner finds something obvious, the application should be deemed fraudulent and carry some stiff penalties.
That's silly. The incentives need to be flipped. Before the target of a patent suit pays a dollar in court costs the filer needs to pay through the nose proving that the case is worth hearing, with the potential to lose the costs if they fail, before any defense occurs at all.
I don't see how GPT-3 could be particularly useful for me as it exists now. GPT-3 doesn't know anything about the prior art, so I can't see how it would work there. I think some sort of AI system could be useful for non-prior-art analysis like 101 or 112(b) compliance, but that would need a specially trained system. The data's out there [0]. I think if combined with existing 112(b) analysis software this could be quite useful, but not as useful as something good that finds prior art.
The situation here is different than in other government agencies. The USPTO is funded entirely by user fees, not taxes. In fact, the USPTO actually diverts a lot of money back to the federal government, so they don't even get to keep their own revenues.
Can someone explain the significance of the court's inquiry?
I understand how it's interesting to see how one NPE structures it's relationships. But aside from the mail drop / physical location shenanigans, I can't tell if there's any legal significance to this information.
I'm the author. It's actually kind of hard to say at this stage, and the judge suggested amicus briefing to help the Court figure out what to make of all this.
The article says “All they had to do was become the owners of a patent assertion entity, and accept the "liabilities" that come along with that.”
Can you say more what this means? What were the risks these people were (I would guess unknowingly) accepting in return for their 5-10% if things went ‘well’?
They seemed unsure at the hearing of what exactly they had signed up for.
Certainly, their LLCs could be subject to attorneys fees if the Court awards fees (which it generally only does in exceptional cases) or for sanctions based on attorney behavior.
However, normally, only their LLCs would be liable rather than the owners personally--unless they fail to observe the corporate formalities.
Once they own the patent, could they not break with MAVEXAR and keep 100% of what they would get from the litigation? In theory, I'm aware they probably had neither the know-how nor the funding.
Fingers crossed that the court just says "this reeks too much like a scam to me" and summons the real owner of these patents instead of the mailbox / shell companies, under threat of dissolving the shell companies.
I still don't understand what the scam would be in this case.
IANAL, but I wouldn't think "this seems sus" to be a sufficient justification for a court to compel discovery without a clear relevance to the issues before it.
I suspect it's something like this: Company A owns some patents that it wants to troll with. They get entities B through Z to buy the patents and troll, with the contract saying that A gets a chunk of the winnings if they win. If they lose, B through Z are on the hook for expenses. So A gets to hide, first of all, and second gets insulated against financial losses, and third doesn't get tainted by a bunch of adverse legal rulings. (That is, think about how Prenda Law got tainted. If they came after you, you weren't going to settle, because you knew it was garbage. Well, in this setup, if B through F have been shown to be bogus, and G is suing you, you may settle rather than fight, because you don't realize it's all part of the same bogus collection of junk.)
As I said, that's what I suspect. The actual scam may be different.
Well presumably if there is a significant penalty for making a false patent assertion, then placing the assertion in the hands of a very small company would simply bankrupt that company in the case of the penalty coming due, and the real owner wouldn't be liable.
So essentially the scam removes liability from the (dubious) patent owner - it removes the downside to (allegedly) abusing the law, and subverts the intent of the legislation.
The hook for compelling discovery is probably standing. That is, if you’re not the “real” patent owner (for whatever definition of “real” the judge likes) then you might lack constitutional standing to bring suit for infringement.
The substantive issue the judge is interested in is whether they made false statements in their court filings. The attorneys seem to be misleading the court about the true owner of the patents, and who the attorneys actually represent.
I'm a patent agent and I worked in Google's Patent Litigation department. This is a slight hyperbole, but only slight: I can bust any software patent. I found the prior art that prevented Google Maps from being shut down in Germany:
@btrettel is right that examiners need more time, but that would mean the PTO would have to hire a lot more of them. A better solution is just to change patentable subject matter to (effectively) exclude computer software. Congress will have to do this since the courts and PTO are unwilling or unable.
As for @blobbers below: patents are not a shield against trolls. They're only a shield against your competitors who actually build things. Trolls don't want your patents; they only want your money.
Lastly, as for the tools: I was told, 10-12 years ago, that when it was suggested that examiners use Google as well as their mandated tools, the union objected that this would be more work and they'd have to be paid more. Perhaps this is no longer true, and I know that the conscientious ones always did.
> change patentable subject matter to (effectively) exclude computer software
I don't necessarily disagree with you, but what makes software unique in that it would be effectively excluded by changes while other subject matter (presumably) wouldn't be affected?
> what makes software unique in that it would be effectively excluded
I can answer this:
1) Because software is already covered by copyright.
2) Because any given idea or concept in software can be implemented an infinite number of novel ways. Patents only cover specific implementations of an idea... Not the idea itself.
Let's use Amazon's One Click patent as an example: How many different ways do you think that could be coded/handled? How many different programming languages could be used to make it work?
If the One Click patent was actually specific enough to not be a broad concept (as required by patent law) it would include the actual code that makes it work. That's the software equivalent to an engineer's blueprint. However, if you look at the patent claims (https://patents.google.com/patent/US5960411A/en) you can see that every single claim is just generic nonsense (e.g. "The method of claim 11 wherein the client system and server system communicate via the Internet.").
Even if you add all the claims together and examine the patent as a whole you still get nothing but a broad concept on the idea of clicking once to place an order. Repeat after me: PATENTS ONLY COVER SPECIFIC IMPLEMENTATIONS OF IDEAS, not the ideas themselves. Which is exactly what every single software patent that exists defines: Nothing more than a broad concept.
You could require that patents provide the actual code that makes them work but then they'd be worthless because any given bit of code can be implemented an infinite number of ways. It would be trivial to change a for loop to a while loop or wrap things in functions or even something as simple as using a different programming language. Any of those things and more would get around a patent on a specific implementation of software, aka "code".
The list of "patentable subject matter" ("101" to insiders) is a legislative decision, i.e. a political one. The Congress doesn't need an ironclad reason, but there are plenty. The Constitution just says:
Congress shall have power… to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.
It's simply a matter of Congress using its power to decide that the "useful art" of software does not need patent protection.
Pure mathematical formulas are already excluded from patentability.
And now yet another election is happening where Congressional and Senatorial candidates are not asked to support or oppose this proposal.
This is how it's going to happen, if it ever does. A bill gets introduced, the Establishment runs op-eds against it, and the battle is joined.
We’re still in the first decades of the profession. You should get a patent for describing a solution that would have gone unknown for twenty-ish years, not a land grab on the easy problems we haven’t looked at yet (or weren’t worth writing down).
What are your thoughts on Alice? I thought that precluded most software patents from being valid. It is a fairly recent precedent, though, so the common knowledge about software patents is still very much about the pre-Alice world.
SCOTUS keeps slapping down the CAFC, and the CAFC just keeps weaseling their way out of it. It will take clear legislative direction to slay this dragon once and for all.
In general exclude enforcing patents where another implementation doesn't directly decrease the patantee's revenue. And most of the software falls in this category. Most of the patents used by the trolls don't even have implantation, let alone revenue.
Well, unrelated to the topic, but I'd be curious how many request / sec you were getting, and how many nodes Render autoscaled up to. I'm running a client's site on a single Render node right now and have been curious how it'd stand up to traffic spikes.
I can't tell from the logs that I can see. But the site is all or almost all text from Render with images on AWS, and bandwidth topped out at "220MB" (per hour? Not sure) from Render this morning. It came back up as soon as I enabled scaling, and it only scaled to 3 nodes.
It's also a Python 3 instance running Django/Wagtail/Puput, and all blame goes to me for poor coding. If anyone reading this happens to be a Wagtail & Render expert and wants some short contract work fixing my code, please reach out (arussell@shawkeller.com)!
I recently had an unoptimized Django site running on render.com with the `plan: standard` setting survive the HN front page with a single node. I had autoscale set to on, but it never needed to scale up.
I don't know the requests/second, but at peak on Google Analytics it said that 300 people were on the site "right now" -- unsure of what that corresponds to. ~5-10 reqs/s roughly?
Also note that render.com puts Cloudflare in "front" of the nodes automatically, which helps with some caching.
(I'm unaffiliated btw, just moved to them from Heroku and have been happy to far)
Hardly effective for gauging HN readership, given the abundant use of ad blockers. Based on no evidence whatsoever, 100x that and you should have a reliable estimate.
We have readers at the Delaware courthouse and, incredibly, the courthouse network setup blocks the site for Chrome users if I use Cloudflare. I tried for weeks to find a solution other than removing Cloudflare but nothing seemed to work, and I really want people from the courthouse to be able to read the blog!
> the courthouse network setup blocks the site for Chrome users if I use Cloudflare
Lovely.
As my local county attorney told the court, "We will not be using the cloud because it is not secure," this doesn't surprise me. The bane of local governments strikes again.
I would ballpark Delaware court IT security requirements as similar to DoD Secret level clearance.
And as far as I understand a higher security cloud solution is usually a custom ask and really expensive at any of the major providers, simply not affordable for smaller organizations.
Most of the cloud providers (at least AWS/Azure) charge about 15-20% more for the "government" data centers. It's really not that much more. It's also not really much different, just slightly more auditing, if any difference at all. You also don't have to strictly be a government agency, you can also be a government contractor.
From what I understand, the infrastructure is really, technically, exactly the same, but just limited to certain customers. It's also, generally speaking going to be as, or more secure than any self-managed datacenter connected to the internet. The transparency could probably be a bit better.
note: used to work for a government contractor that received a LOT of hacking effort as a target.
Since “cloud” is actually a marketing term (usually meaning virtualized servers), any company or department who says no to any mention of using the cloud is showing willful ignorance.
If you know you don’t know enough, demanding paper documents makes sense. It takes quite a bit of study and knowledge to determine that a “cloud document” cannot be changed or altered after submission (and by whom).
Generally Cloudflare is integrated as the DNS level. In most configurations that would prevent intercepting their network requests and redirecting them to a copy hosted elsewhere or on another CDN.
Pretty much every CDN works the same way or very similarly.
"Passive income" strikes again. Such schemes are not just clogging up courts with patent troll cases, they're responsible for a great deal of the spam, bogus reviews, garbage products, affiliate nonsense, and other online B.S. designed to trick the unwary and make it miserable for legitimate businesses.
Nominated Delaware DA by George W. Bush. Recommended to Delaware District Court by Senators Coons and Carper. Appointed by Trump. Confirmation approved by voice vote (which generally means no Senator expressed the desire to register opposition in a recorded vote).
You know officials are doing something right when they can secure broad support like that.
It's pretty common for judges, especially at lower levels, to have broad bi-partisan support. Lots of politicians are lawyers, and if you're well regarded by the local/state Bar Associations, you're going to have lots of friends and colleagues on both sides of the aisle. Until you start ruling on very high-profile cases, or if you have a lot of partisan scholarship, you're unlikely to alienate the folks confirming you so it largely comes down to what the opinion of you is at the Bar.
This is actually why you've started to see people nominated for high level federal posts and even SCOTUS without a lot of divisive scholarship, because they're intentionally staying away from these issues to try to maximize career growth.
I agree that judicial candidates draw bipartisan support more often than most would realize, but you might be overstating how often this happens. In our current political era, Connolly falls into a minority.
> during the Trump presidency, with 81.0% of district court nominees confirmed by roll call vote
> During the Trump presidency, in contrast to the two immediately preceding presidencies, only 15 (10.6%) of 141 district court nominees confirmed by roll call vote received zero nay votes at the time of confirmation. A plurality of nominees (36, or 25.5%, of 141) received more than 40 nay votes when confirmed by the Senate, while another 20 nominees, or 14.2%, received 31 to 40 nay votes at the time of confirmation.
"Judge Connolly made very clear that, in cases before him, it is not truthful to represent that a post office box is a "principle place of business" of an entity. "
By remote business I don't mean "that one guy who is a contractor LLC",
I mean a 50 person team with no office (i.e the new COVID standard). Yes, you could use the "CEO's house", but then he's gotta actually live for a significant amount of time there and receive mail for the company?
None of this really makes sense, and the laws (or interpretations) have not been updated.
No, I believe you're conflating the principal place of activity with the registered agent -- they do not have to be the same.
The registered agent is responsible for getting served, receiving legal mail, and other government correspondence on behalf of the company and forwarding it along in a timely manner.
This is different than a mailing address because a process server or government employee must be able to physically walk into the premises of either the principal place of activity or registered agent, deliver the notice/correspondence/etc. to someone, and record who they handed it off to at what time.
Again, the registered agent does not have to be the address of any of the principals of the business. But it must be a place that is open during standard business hours and accept process notices or legal correspondence upon behalf of the business.
Yes, and again, a business with a PO Box and a registered agent will be deemed "sketchy" by this judge, and more generally by the judicial system and in some cases the IRS as well.
I realize a lot of business do this, and have survived fine, but that's not the point I'm making.
I think you’re now conflating the principal place of business activity with a mailing address.
The principal place of business has to be an address where actual business activity takes place. That establishes your business nexus and which states/agencies have jurisdiction over your business.
It doesn’t matter if it seems “fine” to put down a virtual address in the principal location field, it’s not sketchy — it’s simply not allowed. The state can revoke your business registration for doing so. (And if you look at the terms and conditions for your bank and/or credit cards, they can close your accounts for doing so as well)
In the context of business formation, it is entirely legal for a business to have three different addresses for the three different address roles (principal place of activity, mailing address, and registered agent) provided those are real addresses.
Every secretary of state (or division of corporations, if it’s called that in your target state) that handles business formation allows for this. Sometimes the principal location is public data, sometimes it’s not. The registered agent is always public data.
The original comment I responded to was in regards to your stated requirement of the CEO receiving mail for the company — that is the role of a mailing address. The address to where the business can be served notices, subpoenas, etc, that is the role of the registered agent address. In the context of a remote-first business, you can choose to put your home address here or you can put in legal substitutes.
With regards to your last comment, the judicial system uses your principal address for determining jurisdiction and your registered agent address for delivering notices. If you are providing a virtual address when they go looking for any of these two address roles, you have screwed the pooch.
In the new context you’ve raised regarding tax authorities such as the IRS, when you are filling out said registration paperwork or change of address forms, you are explicitly asked to give the physical address where your records are kept which introduces a fourth address role — that again does not have to be your house, but it does need to be a real, legal place.
No, this is exactly what they are talking about. A UPS store box is not a "principal place of business." Yes, lots of people do it. Yes, you will probably get away with it. But it is not complying with the law, and this is the practice the judge was speaking of.
I know. Ultimately, the reason to use one is if you're largely working out of a house and you're goal is to avoid putting your home address on your business.
While I get what the judge is going for here, there's nothing about renting an office space somewhere that makes a patent more valid.
If anything, the contracts that allow the parent company to take 90-95% of the income should also entitle them to the same level of liability and that should have nothing to do with the shell company address. As soon as that is addressed, hopefully by law, all of this stuff goes away very quickly.
I've been thinking about this a bit since the hearing, and here are some ideas:
- If lawyers for a defendant are going to settle (we generally prefer not to), we often want a portfolio license -- a "go away" license. By splitting up the patents among entities and keeping itself hidden, an entity like MAVEXAR can keep filing serial suits against the same targets and can keep receiving more expensive "global" settlements.
- It dodges liability for attorneys fees, since the entities have little or no money, and may decrease the chances of a fee award generally.
- It means that the entity with the patent has little or no discoverable information, decreasing the cost of suit because there is nothing to produce. Lawyers for that entity can also take stronger discovery positions because there is no concern about about responsive discovery.
In some countries this is called organized crime.
In this case it is like drug dealers and cartels: they get the drug dealer but the cartel continues to operate.
At a minimum they’re doing a form of “liability insurance” by foisting 100% of the liability for 5% of the profits on a food truck owner.
That changes things beyond just liability - it also makes it appear judgement proof. And the dollar amounts indicate that companies may just settle because there’s nothing to win by a counter suit.
There almost certainly is, which is part of the reason the judge is poking this - "ownership" includes control and if they aren't really in control they're not really the patent 'owner' and that could change things.
Also judges in general don't like people being "clever".
“Dude you made 11k from this and now you’re in court. Judge is pissed, you might be in over your head. Sell me the patents for 10k, and we all can move on.”
I'll take a very unlike myself opinion in this - I'll support patent trolls, but only if their exploits are increased by a thousand fold and punishes the entire patent system for being incredibly inept, antiquated, and against any and all forms of innovation. We need serious and far ranging complete patent reform (or revolution) and if deliberate brute-force use of the horrendous laws and regulations that have allowed those entities to proliferate over the last several decades finally forces changes, then bring on more of them.
Short term they are horrendous, long term we may need them to force positive changes that benefit and are on the side of small-time inventors and problem solvers, and not the mega-corporations (patent trolls with massive capital).
tl;dr: Patent trolls are bad, the patent system that enables them is bad, we need to force massive patent reform.
My answer: you get some congressman or senator to introduce a bill, and then you apply all the influence you can muster to get it passed. And there will be opposition.
I just want to thank whoever tipped off the judge about these shenanigans. To the mole that I suspect exists within MAVEXAR, you have my thanks. I request that the mole copy all the hard drives that he/she has access to, so that the mole has leverage if caught. It would make a fine letter to your senator.
What exactly are the shenanigans? Patents are transferable. Creating LLC’s for a specific transaction is perfectly legal.
This judge was getting awfully close to invading the attorney-client relationship. I would have to think hard, and review the law, before answering, or letting my client answer some of those questions.
This seems to refer to the people who got recruited to serve as owners of the patents. They are not "hapless"; they are getting a slice of the patent trolling action.
> In short, it looks like both of these witnesses signed up to be the fall guys for the assertion of these patents
Unfortunately, the article doesn't hint at what that might mean. Obviously they are inconvenienced by having to appear in court as witnesses. Do they face forfeiture of the LLC income, and penalties? Jail?
Thought: Intellectual property should have nothing to do with payments to register your ideas with the government. Essentially, IP cases should revolve around whether an idea was “stolen”, which is different than coming up with the same thing at a later date. The original intent of the patent system was to promote publication. There are plenty of other ways to publicize work now.
Completely unrelated but because having a patent is a significant plus in a lot of visa scheme what is the easiest and cheapest way to get a patent in the next two years?
I wouldn't use it for trolling, wouldn't use it to protect any ip but would just use it to get the points on the visa application when moving to Japan.
You can get a patent on practically anything - they only test in court, which is why these trolls have power. The cheapest way to get a patent is to apply, and make the claims very specific and complicated.
Think of the most intrinsically complicated computer program you ever wrote (that's not owned by someone else like an employer). Then contact a patent attorney and pay them to prosecute it.
Patents are just inherently bad. There is no way to morally/ethically justify them nor to "fix" the inherently broken system. This is just one of those unquestioned relics from the past that clutches at shackling the youth for the sake of the old entrenched powers, and thus holds back humanity.
Serious Question: Do you think that all software should have to be completely and constantly open-sourced? Do you think that all blueprints must be made public? Do you think that all recipes for food must be made public?
Creation is hard and should have some potential for rewards. I think we need software patents (especially) to be shorter lived and non-transferable. They can only be licensed and the licensing schedule should have to be public and available for all people at the same price. The employer can get a free license as part of the patent process for company use. This gets rid of trolls and patent farms.
> Serious Question: Do you think that all software should have to be completely and constantly open-sourced? Do you think that all blueprints must be made public? Do you think that all recipes for food must be made public?
No, we have copyright and trade secrets to protect those things. There are many forms of IP protection, but patents are the most questionable by far IMO, and are more likely (in most fields) to be a net loss rather than a net gain for humanity.
> Creation is hard and should have some potential for rewards. I think we need software patents (especially) to be shorter lived and non-transferable. They can only be licensed and the licensing schedule should have to be public and available for all people at the same price. The employer can get a free license as part of the patent process for company use. This gets rid of trolls and patent farms.
Copyright protection is sufficient for software IMO. Very few pieces of software are novel enough to be worthy of a patent, and in the few cases that are, the greater number that aren't outweigh the benefit to the few. When you have to try this hard to salvage the system, it is usually best to not try and salvage it.
>Serious Question: Do you think that all software should have to be completely and constantly open-sourced? Do you think that all blueprints must be made public? Do you think that all recipes for food must be made public?
Of course! Maybe that's because in the sciences this is a normal thing in order to get published at all. If you present findings with a black box reviewers will want to pry in. And what do you know, the sky doesn't fall with all of this sharing of knowledge. People who put time into their findings are still considered experts and are rewarded. In fact its probably a lot easier to point to your accomplishments when things are actually public and you can talk freely about them, versus layered behind NDAs and whatever else other threats designed to keep you from talking about the work you do to other people who might do something generally useful with that information.
The potential for reward in creating useful software is licensing the software. It shouldn't be in extracting rents from others whose own software is too similar.
Is there anybody still doubting there is a corporate shadow world? You know the "pulling the string in the shadow", and that without fantasy conspiracy theories.
Street killings are for amateurs. This is the USA. Here they take them out Epstein style...complete with cameras that malfunction and a client list that disappears. After that, they involve the media to ensure it is sold as a "suicide".
I find the framing of the conversation around problems with the patent system to largely be about patent trolls quite disingenuous.
This might sound controversial, but patent trolls are pretty much the only way for a "small inventor" to monetize a patent (note not invention). If say IBM violates your patent an individual or even a moderate startup or company has absolutely no chance of defending it, because IBM will either drown you in litigation cost or if you also do business find 10 other patents in their portfolio that you violate and force you to cross licence.
By framing the issues to be about patent trolls means that the big companies just want to have their cake and eat it too. They want to keep out newcomers without any risk to their own business.
That doesn't mean I am pro patent trolls, but I just am not convinced that the patent system fullfills any value. Patents are written so broad that they are essentially meaningless.
I think the story of "small inventor makes big contribution" is very misleading. If an invention is small enough that someone can make it without spending significant resources, it is probably obvious enough that you shouldn't be allowed to patent it, because it is more likely other people incidentally have the same idea than they are "stealing" it.
The only scenario where patents make sense is when a research group spends significant resources to invent something, and then publishes the invention with all the necessary documentation to make use of the invention, then they should be rewarded with licensing fees for their contribution, so they can continue and hopefully make more inventions.
Edit: When I say research group I'm not just thinking of non-profit universities. A research group could also be a group within a for-profit company that develops something, a for-profit institute, a joint industry working group, etc.
While many contributions do require significant tools & investment, there are still plenty of sectors where individuals can make massive contributions. For example Ben Choi leveraged mostly public knowledge and a few thousand $ to develop a low-cost neural prosthetic in high school. Having been to enough hackathons, this caliber of project, though uncommon is also not rare. The surface area for innovation is so huge, and the flexibility afforded by individuals/small groups is so significant that major breakthroughs continue to be made without backing.
Many of these inventions could be readily transformed into significant business ventures but, without patent protection, would be easily beat out by companies with the resources to build out manufacturing nearly instantly.
In your proposed world, shouldn't we simply get rid of patents entirely?
The person who made the flash freezer, for example, was just one person. If he couldn't protect his patent, despite definitively changing the face of global food preparation, why should IBM have any intellectual property?
I don't know if abolishing patents altogether would improve innovation. But I'm pretty sure that patents on obvious things hinder innovation, rather than help it.
I'm not familiar with the invention of flash freezing. Did the inventor just patent the idea of freezing food fast? That sounds like a pretty obvious idea that should not be patentable. Why give someone a monopoly on quick freezing?
Or did the inventor patent a non-obvious mechanical device that is capable of quickly freezing food? Giving the inventor a short term monopoly on that device in exchange for publishing the blueprints sounds like a reasonable deal.
Yeah, there's a lot of bad patents, especially in the tech sphere, where the patent office & judges lack expertise to evaluate both what's in use and what's obvious. E.g. when someone almost successfully patented the concept of a e-"shopping cart" after it was in widespread use (also it's painfully obvious).
In the case of flash freezing, hasn't the market shown that the idea of quickly freezing food (to preserve the food without producing large ice crystals) was novel when he invented it? We have been able to freeze food for hundreds of years, and nobody was doing it that way until 1924. That sounds like a non-obvious novel idea to me.
I wanted to know too. It seems he was inspired by fish being naturally preserved in the arctic by wind and cold and how it was still tasted good later.
"After years of work on his own process, Birdseye invented a system that packed dressed fish, meat, or vegetables into waxed-cardboard cartons, which were flash-frozen under high pressure"
The point of patents isn't just to protect you from theft. It's to grant you a monopoly on the invention in exchange for publishing details about it (thereby allowing others to build on your invention). Trade secrets law protects you against theft. Multiple people having the same idea doesn't actually mean anything - the person who makes the public disclosures of its existence is the one who gets the patent.
No, you don't necessarily need to spend a lot of resources or even have a "research group" to invent something completely novel, and the price of research is actually a lot lower than you think if you aren't hiring people. For example, you can make a new silicon chip to prove that your new circuit works for under $10,000. A new electronic device of some other kind is only a few thousand. Software (for the few remaining fields where you can get a software patent) is pretty much free to develop.
> If an invention is small enough that someone can make it without spending significant resources, it is probably obvious enough that you shouldn't be allowed to patent it, because it is more likely other people incidentally have the same idea than they are "stealing" it.
The resources spent on an invention is typically a terrible measure of novelty or inventive step.
But I agree, patent law should to a greater extent protect the investment that goes into realizing an invention, and less the invention itself. For example I think it’s absurd that you can patent stuff that you have no intention of building or offering for sale.
I think that's one way to view invention but the classic way it's been viewed in America is that if you found a novel way to put a sponge on the end of a dowel and manage to market it you should have protections to exclusively make your good for a while - there has always been, for me at least, a very strong romanticization of folks inventing things in their garage and making a few hundred thousand dollars off of them.
That’s probably true in the aggregate (as I’d posit most advances are incremental and become more expensive as you run up against diminishing returns to investment with legacy technologies). However, I think it discounts breakthrough tech/new technology fields and new applications. Not to mention many things that are consumer focused ( beanie babies, spanks, super soakers etc)
Sure I somewhat agree with you. However my argument applies just as much if you exchange sole inventor with research group. The funny thing is "protecting the small inventor" is often stated as the purpose of the patent system, while in reality it is largely the big incumbents that are protected
If you're suing IBM, maybe. But I don't see how the majority of patent trolls that seem to be suing small businesses for things like using a printer, scanner, fax combo they bought at Office Depot is helping anyone out.
Its about identifying symptoms, not being an apologist
okay so you’re living paycheck to paycheck and took the risk of filing your patent with the attorney for $10,000 and arguing with the patent office a couple times for another $10,000
now you need to monetize it and other people did the thing you described after you described it
everyone on the internet says “hm you should have launched a startup using more capital and more risk, doing that one specific thing, otherwise you are just a troll!”
The argument is that society would be better off the the inventor licensed (or sold outright) to a company that will actually use the patent. Instead of to a NPE that exists only to sue.
If an inventor just wants to sit on a patent and not produce anything based on it, they should be forced to (eventually, though I have no idea what timeframe would be optimal) release their rights.
There are several errors in your analysis, while it IS accurate that "suing IBM" is difficult for a small inventor.
First, patent trolls have a very simple business model (and I heard this from a former troll):
- Don't even sue the real easy marks, the ones who will just write a check for $50,000 to make you go away. Just threatening them is enough.
- Sue the slighter harder targets. For these, you have to actually file a suit. They will settle with you, and you'll demand more than $50K because they made you work a little.
- (This step is optional) Sue the real hard targets, like Google, who will file an IPR (inter-partes reexamination) to try to invalidate your patent. Again, many times you'll end up with a settlement out of this.
- (also optional): go to trial, and hope for a gigantic jury verdict. Buy a lottery ticket, in other words.
Now your statement "Patents are written so broad that they are essentially meaningless." is nonsense. "So broad" means that they apply to lots of products, and the jury just has to decide one of the claims applies to yours.
So, your "small inventor" might get some money by selling to the patent troll, but it might not be from defeating IBM, and it won't be 100% of the money.
I don't understand how anything you wrote invalidates my argument. Yes, the inventor does not get the full settlement amount, but some money is still better than a lot of debt that they might end up with if going after IBM themselves.
Regarding the broadness of patents, my point is they don't advance technology or the sciences (the oft stated goal of patents), because they try to cover everything without revealing anything (a goal given to me by several patent attorneys in the patenting process). So what is their purpose?
> I don't understand how anything you wrote invalidates my argument. Yes, the inventor does not get the full settlement amount, but some money is still better than a lot of debt that they might end up with if going after IBM themselves.
As I agreed. However, you're wrong that a troll necessarily goes after the infringer you know about, and in fact they may not even bother.
Secondly, "broadness" is a term of art in patents. It doesn't mean what you think it does. It doesn't mean "advancing technology." It means the scope of things covered by the claims.
The small inventor is supposed to monetize a patent by building something useful for society. That's the whole deal. The patent itself shouldn't have value beyond protecting that path.
Why? They might be much better at inventing things than starting and running a business. The stated goal behind patents is to advance the sciences not to create businesses.
My understanding is that the goal is to advance society (not really the sciences) by enabling someone to produce their invention so society can benefit from it. The patent protects someone from having that invention copied as soon as it is put to use, which provides motivation to spend the time inventing it.
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
Definitely the patent system has some issues. It certainly offers way too many protections with far too few checks. But there seem to be some strong assumptions here.
> patent trolls are pretty much the only way for a "small inventor" to monetize a patent
In the current system, yes, but in general no. The outcome is tied to the "litigation costs" precisely because the patent office is underequipped, leaving the burden of investigation on individuals. Strengthening the authority, and actively prosecuting and penalizing patent troll behavior increases both cost & risk, while cutting income. Your investigative authority doesn't need to be perfect - just better - to significantly change trolling economics.
> because IBM will either drown you in litigation cost ...
IBM is one of the longest standing patent troll companies and these are cookie cutter patent troll tactics. Good anti-troll legislation dilutes this by strengthening the investigations.
Software patents, "better paperclips", and a lot of other "lawyers get rich, bureaucracies get bigger, little people get screwed patents? - YES.
(Some sort of IP protection or reward system is still needed for real inventions - where it takes serious money, expertise, time, etc. to achieve something major.)
But maybe a better moral would be that shell corporations (& lawyers playing shell games with them) should be outlawed.
> But maybe a better moral would be that shell corporations (& lawyers playing shell games with them) should be outlawed.
Shell companies have done more damage to the world than most tyrants ever could - enabling tax evasion, escaping responsibility for substandard construction (you close the company after completing contruction of a house) or for decommissioning toxic assets like exhausted mines or oil rigs. They are uaed to obscure land ownership.
Most of those aren’t shell companies by the common definition of a shell company.
Usually people talking about shell companies are referring to companies with no business interests at all or if they are bring expansive only contracts/ip agreements. A construction company is doing actual business. Land owned in a corporation has an actual asset etc.
Most startups start as shell companies, you sort of can’t create a corporation without being one for some amount of time.
So I’m ok with the idea of corporate ownership reform but I think you’d need to get more specific than “shell companies == bad”
IANAL, and was not proposing specific legislation. I used "shell company" in colloquial sense - a token / minimal / empty legal organization, used by lawyers & their ilk for what most honest & reasonable non-lawyers would see as duplicitous or malicious purposes.
The corporations in this case a) hold assets and b) provide liability limits. That is the basis of all corporations.
So we’d need to get specific about which practice is duplicitous. Is it the treatment of IP as an asset? The transferability of patents ? Limited liability of patent defense?
I am no expert in any of those things but I bet there is value in each and bad unintended consequences of each.
If I described to a lay person that there was a hacker website frequented by lots and lots of people with an active forum community, you’d likely get at least some of them to suggest banning it…
>If I described to a lay person that there was a hacker website frequented by lots and lots of people with an active forum community, you’d likely get at least some of them to suggest banning it…
Different things. In this case you have a pathological outcome in the process. "Free real estate" as it were because you've got an organizational structuring that is essentially censure proof by the Court unless you pierce the corporate veil.
Remember, corporations are suffered to exist as a courtesy, and a means to distribute risk, but our Court system is very much tuned to "there is a person, get them in here now, and lets get this sorted."
If the Court has to choose between being ineffectual and exploitable, and piercing the veil in order to get to the bottom of duplicitous behavior, one can only hope the Judge will settle in and push the issue.
> The corporations in this case a) hold assets and b) provide liability limits. That is the basis of all corporations.
Surely the basis of all corporations is to trade and to undertake usefull economic activity.
We spesifically don't want them to limit liability where profit is made upfront, owners take off with the money, and there is no-one left to pay the costs.
There is no need for a corporation purely to enable trade. The entire point is to limit liability of the investors. Otherwise we could just ban them wholesale.
I think you could fix a lot of the issues by requiring that all companies must be recorded in a public registry that includes contact information, owner and executive names, as well as a list of actual physical locations where the company operates (if any -- online businesses don't need to have a physical location).
You’d need a federal level legislation to achieve that (and perhaps a constitutional amendment).
The states decide the information requirements in their jurisdictions and many have vested interests in not changing them (particularly Delaware where this case is).
This is called a beneficial ownership registry and Biden signed the most recent NDAA which actually included a rule to create this. FinCen is developing the framework now and we should have much more transparency pretty soon;
Generally speaking, most "real inventions" are independently invented by multiple people and aren't successful until somebody figures out how to market them. For example, video games were invented in the 1950s and Tennis for Two[0] was basically Pong in 1958 (a bunch of people had already written tic tak toe, checkers and/or chess). The Magnavox Odyssey (likely the first console) was released around 2 months before Pong (according to Wikipedia) but it was Pong that popularized gaming and made it mainstream. Calculus was independently invented by both Newton and Liebnitz but there was also a Japanese calculus called wasan from the same period invented by Seki Takakazu based on a different foundation. The telephone was also independently invented by several people around the same time but Alexander Graham Bell got the credit because he was the first person to get it to the patent office.
There are endless examples of this because ideas are not scarce and there are typically multiple intelligent people who have the same idea. All patents do is allow somebody who fails to successfully execute an idea to weaponize the legal system to extort money out of people who do successfully execute "their" idea.
That's not even getting into how the US Supreme Court allows GMO seed companies to patent plants and sue farmers for patent infringement because the neighboring farm's GMO seeds cross-pollinated with their seeds. In Bowman v. Monsanto, the US Supreme Court actually ruled that farmers can't plant their own seeds (when this cross pollination happens) without paying the patent trolls at Monsanto! Patents are simply corrupt, innovation stifling monopolies the entire way down and should be completely abolished and banned from ever coming back via constitutional amendment.
(Current copyright terms are excessive but copyright itself along the lines of the US Copyright Act of 1790 is reasonable as a tool to encourage creative works and copyright abolition would likely be even worse than the status quo's century long copyright terms. Likewise, trademarks are also legitimate as a fraud prevention tool. They shouldn't be conflated with patents as they are in the concept of IP.)
Copyright was not introduced by authors, it was introduced by the people who print books, or at least some of them. In Germany books and booklets were dirt cheap, which allowed broad access to all kinds of works and consequently knowledge to spread. Then came copyright, and guess what happened: It wasn't exactly the authors who got richer, and neither the biggest bunch of the guys who printed all these things saw any of the benefits, either. It was a net loss for the society, because some greedy idiots couldn't get enough.
Trademark also has a good few issues, aside of being abused to the point where it becomes obviously stupid (like trademarking colors, common words and similar idiocies). It also cannot prevent counterfeits, which is more a game of whack-a-mole than anything else.
I've always found Wikipedia's "List of multiple discoveries" article fascinating. So many, many scientific principles and inventions that I know about, and it turns out there were others I've never heard of who also figured them out. https://en.wikipedia.org/wiki/List_of_multiple_discoveries
Tradition has held that these are ideas, not inventions, and thus
obtain value precisely because they can and should be freely shared
(which is the ultimate aim of patents anyway).
Ideas may also require intellectual labour. But one may not receive
the protection of the government for them to give temporary advantage
over competitors. Ideas are a collaborative venture, protocols being
the very epitome of this - since a "protocol of one" is a bit like a
birthday party for one... a bit sad and pointless.
If one wants to make money, by all means invest time in pursuing
patentable inventions, but do not presume that mere ideas (most of
which are "nothing new under the sun") should be afforded the same
protection.
The problem we have today is that the patent system is derelict. The
goalposts have shifted to allow almost all and any silly idea to
obtain a patent and the system itself is weaponised for extraction. It
has not shown any will to reform, so abolition may be its ultimate
fate.
I’m interested in what “traditions” you’re talking about here? Honestly, it is not even clear to me what you’re talking about when you say “these” in your sentence. Certainly tradition hasn’t held that Rust memory management is an idea and therefore not patentable. Same with new models in ML? Maybe there is some tradition for protocols, but even those are generally patentable but required to be licensed via FRAND.
Your post seems to entirely misunderstand the patent system. “But one may not receive the protection of the government for [ideas] to give temporary advantage over competitors.” This is just flat out wrong. The purpose of a patent is literally to receive the protection of the government for your ideas in order to give you a temporary advantage over your competitors via a government granted monopoly on an idea. The bargain that’s struck is that the patent owner gives the details of their patented idea to the world so that anyone can eventually practice it or build off of it in exchange for a limited exclusionary protection in commerce.
Pretty sure that it's not for ideas, but for specific implementations of ideas, patents being criticized as abusive when they are not specific enough ?
One example I saw just today :
Thomas Savery getting a patent on "make, imitate, use or exercise any vessells or engines for raiseing [sic] water or occasioning motion to any sort of mill works by the impellent force of fire,", which I assume subordinated Thomas Newcomen during the patent's duration = all of his life to Savery, despite Newcomen's engine being much more advanced & commercially successful... (at least he didn't end up destitute, like some of the previous steam engine inventors !)
This seems to be splitting hairs on what an “idea” is. Is a patent on the use of water heated into steam to drive an engine different from the idea to use steam to drive an engine? I don’t really see where you draw the line here, and the idea to use steam to drive an engine was definitely new at the time so why shouldn’t it be patentable? And also note that your linked story does not implicate the US patent system (which addresses the problem you’ve identified: your patent only lasts for 17 years, not for your or your competitor’s life) but seems to be reliant on the British patent system as it was in the late 1600s.
You can argue that the patent system in the US is partially broken because of how broadly patents are granted nowadays, but that does not support the GP’s contention that there is some kind of distinct line that can be drawn between an idea and an invention, which is why the patent system is what it is now. And, again, your own link underscores how far we’ve come in understanding that unlimited monopolies on technologies/ideas are bad and how limiting patents durationally can help with that. Note that one of the requirements for a patent to issue is called “enablement” which basically means that your patent MUST describe the invention with sufficient particularity that a person with ordinary skill in the art could make and use your invention.
lol, after your last phrase I'm confused about what we are even arguing ?
(Also, I don't think that in that case the patent expired because its holder died, more likely it came to a term (after being renewed ?) after 35 years (which I agree is a tad long), otherwise my source wouldn't have put it in this way ?)
I'm sorry I can do nothing more to help with your misunderstanding of
my good faith post. Please do the necessary research with regard to
the history and purpose of designs and patents law.
> So you have no examples or explanations for what “traditions”
I have plenty. Now, I do not wish to be rude Abduhl, but I find your
"question" a little disingenuous, and your expectation that I act as
your personal tutor on well documented matters a tad entitled. This
isn't my full-time job, and I come here mainly to look for interesting
and unusual viewpoints. Have you done even the most cursory research
into the history of patents as I indicated? Do you need some reference
material or links to get started?
How about reading some lecture notes and essays (some of the finest on
the formation of copyright, patent and trademarks) on the site of
Havard law professor Lawrence Lessig [1]
I'm skeptical rust memory management is such a big invention by them and would bet some money the ownership model already existed before in papers at the very least. And even if not just imagine having to pay Dahl or Alan Kay to implement OO in your language, which was by every possible metric more innovative than rust's memory management.
Even if it would have stopped java from being a thing it's just not worth it.
Those things got invented anyway though, without being patented. The right question, in my opinion, is whether there are important software innovations that would have been significantly delayed, or kept secret, or never discovered at all, if software patents weren't a thing.
And if so, do they outweigh legal costs and chilling effects of patent trolling, and the inefficiencies of people having to engineer around patented ideas.
Intellectual property is a fairly artificial concept. It's quite "big government" when you think about it - government grants a monopoly on the application of an idea. It is only worth preserving if it makes the country richer.
This cuts both ways: it's also easy to "surround" software patents with new innovations that are required to be competitive in the marketplace. Then both parties cross-license and you're good. Yes the lawyers get paid but the cost is pretty low compared with software engineers, and the societal benefit is that these innovative move into the public domain.
I don't understand your point, do you mean that this cannot happen in other fields?
I imagine that this is the case for most stuff in the world. Ideas are not usually unique but it's the great execution of the idea that present the real challange.
The idea was basically "Let's give some legal protections to investment in research so someone can't just steal it the second you publish it".
As it is common, the idea was fine, it even somewhat worked in few places, but applying it everywhere turned out to be silly. We have medical companies changing an atom here in there to make "same" but legally distinct drugs, and software people patenting half a day of work of someone as some "invention" (and my favourite [1], "playing with cat using a laser pointer").
It failed as a system decades ago and if anything it became blockage to innovation (gotta check thousands of patents, they might be too similar!).
More than that, it is peanuts in cost for corporation but significant one for a single "inventor" so majority of it lies in hands of corporations that would do that R&D anyway.
The protection it provides was also supposed to encourage publishing the science (as opposed to just lock up your trade secrets and never show it to the world) but frankly long patent interval makes it a bit pointless, competition can just invent "same/similar legally distinct process in many situation and only people getting richer by patents are lawyers, not "inventors".
I start to think laws should have "best by" date, and be re-evaulated after 10 or 20 years whether they served a purpose well and still serve it...
It's really that the capitalistic patent driven research system is pretty terrible imo. So you have some need to invent some technology for the betterment of humanity and the world. The patent model requires that in order for that technology to exist, someone needs to have the idea out of the blue, and for it to go on to be produced at all it needs to be a convincing enough idea for people to part with their disposable income out of their own will to fund all the overhead of this business plus profit. That seems like a great way to invent a cash cow that the government protects on your behalf, but I'm not sure we would have invented and proliferated the wheel or the bow and arrow if we had this model all through out our human history. You'd have people dealing with really crappy octagonal wheels because someone is squatting on the round wheel patent and might not even have much of an interest to bring it to mass market.
There is another model for innovation, however, and that is the government research grant model. The government taxes wealth, the taxes accumulate into massive funds, government experts hired from the field identify compelling research topics that would benefit the collective, funds are made available and other researchers submit proposals of what they would do with that money, government experts choose the most promising proposals, money goes to things based on research merit versus the product or technologies potential to take money from people's pockets.
The idea behind them is solid... the time limits are absurd, especially for trivial stuff.
So, to solve the triviality, the patents shouldn't be worth more than it would take for a competitor to reinvent the end result - so if we're talking about a truly advanced chemical process, sure, takes time and reasearch and people and experiments... definitely worth millions. In contrast, pressing pageDown and in result moving one (full) page down (instead of moving a screen-height) should be practically worthless, since it'd take someone just a few hours to reimplement. Valuing would be hard but still better than nothing.
The other is the time limits.. especially in software, a year is a lot of time, really a lot... and 20 years is way too much.
But that's not how invention works : what about advances that seem trivial after the fact... yet nobody has thought of for centuries, despite all the "ingredients" being available ?
What about patents are non-transferable and only valid, if the issuer actually makes use of them? The moment you let them rot in a drawer, you invalidate the patent. That would disable companies whose sole purpose is to "troll" others with patents they aquired from whomever, and it would also disable companies from inventing something just to block off this path to competitors, while never making use of it itself to press more money out of customers with the "old garbage".
I mean the marketing blabla behind patents is always the little inventor who found something incredible but will be eaten by the large corps, right? Which means they should be interested in actually creating a product out of it to make money, and the patent gives them a "safety" period before the big corps stomp the little guy to the curb. Or ... maybe this whole thing was a pure marketing ploy and patents have been misused in all kinds of ways in the 19th century already?
Some decades later, however the (much less broad ?) patents over steam engines able to produce circular motion, seem to have forced Watt to differentiate and improve his "2nd engine" so much that it could be differentiated enough from the other patents :
Note also that Watt was bad at business, and only owned 1/3rd of "his" patents.
Our post-modern issues seem to me to instead stem first from :
- it being too easy to shelter liability (and tax fraud !) behind complex company trees
- a failure of antitrust and lack of goal/duration-limited companies allowing companies to grow waaaay too big to the point where they have enough power to heavily weigh on governments (note though that Watt had already managed to convince the British government to give a 25 year extension on "his" "1rst" steam engine)
As I see it, the way we humans actually progress is through copying what other people did and extent on that, or get whole new ideas how to move on from that in a different way. Patents and copyright don't serve that principle, they exist to block it, to create some form of monopoly, for the sole purpose to increase profit for a few, letting society pay the cost for that. For example, the amount of hours wasted to get around patents is absolute insanity, up to the point that it can block off entire product categories because the patent is a crucial one for this to ever work.
The problem with multinationals is just icing on the cake, because they use all kinds of tools to block off competition, not just patents and copyright. And compared to the small inventor they do have the means to control for patent violations by others and go through court with that, if needed. So the whole process is highly aligned towards the wealthy to begin with.
The purpose of patents, is incentive companies to share their secrets.
For example, Coca-Cola never patended their formula. So you might think: I can copy it and sell my own right? Well, yes, legally yes, if you ever found their formula, somehow. They been successful for more than a hundred years now in hiding that formula.
Thing is, software patents allowed people to actually patent ideas, concepts, stuff that is obvious and don't need sharing, for example: "ghost racer" is a patented concept, for a while any game that wanted to display to the player his past run by showing a slightly different copy of himself so he can compare, had to pay patent royalty. But the concept is obvious, it is simple, it is there, nobody used a ludicrous amount of money and time to invent it.
This is different than the patent for Michael Jackson dance moves that requires specialized devices, he patented physical objects that required time and money to make, they had a non-trivial purpose on his dance and he had to work to create them to make his dance moves possible. And now that he is gone, the awesome stage tricks he invented can keep existing, because he wrote detailed patents explaining how to repeat his feats.
> They been successful for more than a hundred years now in hiding that formula.
This is a legend.
Coca Cola is just water with sugar. The "formula" tastes different in every country. And today's coca cola is not the same like yesterday, so they shall fill a patent every other year in every country.
It doesn't taste that different in every country (I've had it in most continents and quite a few countries). For whatever reason I still massively prefer regular coke to most of the other mainstream suppliers. I do like some small batch niche cokes though. Strangely as a kid I drank loads of diet pepsi, but I never drink diet soda now, and I probably only have 1 or 2 cans of coke/month on average.
Is physics patentable? Everything in the real world eventually depends on physics. Yet despite the unpatentability of physics, patents built on physical properties of the world exist as well. Why should mathematics and software be different?
Software implementations require trade-offs. An implementation of an algorithm can be memory-hard or memory-efficient, single-threaded or multi-threaded, generic or optimized for a particular processor, constant-time or low-latency. But no implementation can be all of those at the same time.
To create a solution within the constraints given is what engineering is all about, and requires expert domain knowledge and creative thought. Software isn't just math, it operates on real processors with real limitations. I'm not arguing that software patents should be valid, but the "software is just math" argument is too weak to carry much weight.
Software doesn't need to be obvious and could need the sharing aspect of it. I am thinking of all the new ML models that are up and coming for example. Not only do you require some advanced software but also a lot of hardware capabilities.
I don't really buy your argument since the same could be said for obvious stuff in the physical world as well.
I still think I am leaning towards companies keeping their secrets if patents is the only solution we can bring to the table.
It's only "obvious" after the fact, and was clearly not obvious to the patents office, or the patent wouldn't have been granted.
As for the "no effort" claim, reminds me of the :
Henry Ford vs Charles Steinmetz' (of General Electric) invoice for fixing a generator : "Making chalk mark [showing where the issue is], $1. Knowing where to make mark, $9,999."
Because the bar for 'invention' is even lower in current software patent law than for current physical engineering patent law.
In general, the software world sees plenty of innovation, and would continue to see that innovation without patents. Besides, software is much closer to mathematics. The idea that e.g. long-division is patentable is ridiculous, but if you write "long-division, but on a computer" the only thing that prevents a patent is how glaringly obvious the prior-art is.
For me the reason is that I cannot say I understand other industries well enough. But I understand software well enough to say that parents there are harmful. Many of them are too generic and trivial and hinders innovation.
Patents should be coupled to the product. The patent is hidden and considered in draft mode until a working product matching the patent completely is created and submitted to the patent office to check if it matches the patent.
If you are working as an inventor it's your own responsibility to market and sell your ideas and create appropriate contracts when selling your inventions to someone.
A patent has to go through several layers and areas of concern before finally being approved. The entire approval process must be documented and publically available.
That all connects to a working end implementation, which can be presented to the patent process.
ARM would need to contractually secure themselves on their own untill an implementation can be presented though
