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.
Stripping unions of their rights might be a bit controversial. On the other hand, "collective representation" is essentially the definition of a union.
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.
USPTO upper management is taking comments about the "robustness and reliability of patent rights" until February. You can leave your comments here:
https://www.regulations.gov/document/PTO-P-2022-0025-0001
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.
Don't believe examiners are overworked? Take a look at this subreddit: https://www.reddit.com/r/patentexaminer/
(Note that this comment is only my opinion, not that of the USPTO, US government, etc.)
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 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.
By the way, you can find a bunch of annoying time wasters listed by examiners here: https://www.reddit.com/r/patentexaminer/comments/y9pyfx/mild...
(Again, like my other comments here, this is just my opinion, not that of the USPTO or US government.)
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?
Anyone else feel free to chime in!
For those who are too young, a fax machine is this arcane device that used to be everywhere, like a remote photocopier.
Got the US patent dated 2013. Was the lawyer pulling my leg?
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.
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.
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.
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.
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.
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.
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.
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.
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.)
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.
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.)
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".
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?
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 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.
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.
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).
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.
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.
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.)
Don't take my word for it... here's r/patentexaminer on the USPTO's latest internal AI search tool: https://www.reddit.com/r/patentexaminer/comments/ybbb60/is_t...
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.)
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.
https://breckyunits.com/the-intellectual-freedom-amendment.h...
You can email the author, I guess. As far as I know patent authors have an eternal duty of disclosing prior art on their own patents.
I assume that if you email prior art to the author they have to report it to the USPTO. Not sure if the patent would ever be invalidated though
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.
[0] https://www.uspto.gov/ip-policy/economic-research/research-d...
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.
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’?
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.
https://www.themarysue.com/google-maps-facing-german-ban/
@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.
This is tech, it’s a race, everyone playing already knows that. All parents do is slow innovation or in some cases stop it entirely
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?
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.
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.
https://web.archive.org/web/20221107120623/https://ipde.com/...
Edit: I discovered the Render.com autoscaler setting. Hopefully it's back now.
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 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)
You know officials are doing something right when they can secure broad support like that.
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.
"Uh Oh!" - Every Remote business owner.
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.
- 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.
These are litigation funding exercises, so the goal is protection of the "investors".
But you'd also get things like protection against discovery (the smaller entity has nothing to give you), etc.
This is the sort of thing where they go too far, and end up in jail despite thinking they're just good at playing the system. (see, e.g., prenda law)
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.
Presumably theres some contract with the patent "owner" preventing that, but maybe that would show they aren't really in control of the patent.
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.
Exactly. How will that happen?
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.
Stay safe out there.
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?
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.
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.
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.
https://www.dmagazine.com/publications/d-magazine/2022/octob...
There has been literally - and I mean literally on the literal sense - one case from 11 years ago and none before or after that in my lifetime
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.
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.
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.
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?
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.
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.
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!”
yeah ok. convincing argument
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.
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?
> 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.
(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.
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.
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.)
Some examples:
- Rust memory management
- New models in machine learning that enables amazing results
- Protocols
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...
[1] Method of exercising a cat https://patents.google.com/patent/US5443036A/en
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.
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.
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.
