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Xiph.org Comments For the FTC's Patents Workshop

Soulskill posted more than 3 years ago | from the please-consult-a-patent-attorney dept.

Patents 65

Freddybear writes "Xiph.org, makers of ogg audio and theora video codecs, submitted a detailed proposal to the FTC for the patents workshop. Their proposal recommends changes which would help to eliminate the practice of 'submarine' patents regarding standardized technologies. Quoting: 'The Xiph.Org Foundation recommends that the FTC work to require specific, ex ante disclosure of patents or patent applications that would read on standards under development, that failure to disclose exhaust the patent, and assertion of such a patent ex post be deemed anti-competitive. This should apply not only to standards development activities that the patent holder participates in or knows about, but those it should have known about. Furthermore, vague infringement allegations or activities designed to avoid an SSO's disclosure requirements or undermine the standards process should also be deemed anti-competitive.'"

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I wish to support this submission (4, Insightful)

Anonymous Coward | more than 3 years ago | (#36489582)

I would like to add my name to a list of people who support this submission.
Does such a list exist?

Re:I wish to support this submission (4, Funny)

davester666 (731373) | more than 3 years ago | (#36489590)

Yes. Everybody that cares monitors /dev/null. Pipe your name there.

Re:I wish to support this submission (-1, Offtopic)

Frosty Piss (770223) | more than 3 years ago | (#36489682)

I would like to add my name to a list of people who support this submission.
Does such a list exist?

I currently have a case of projectile diarrhea due to an "bachelor party" excursion to Tijuana to take in a "Donkey Show". But I don't go around demanding my name be added to some list of Hot Male Studs with indigestion...

Re:I wish to support this submission (-1)

Anonymous Coward | more than 3 years ago | (#36490462)

take in a "Donkey Show".

list of Hot Male Studs with indigestion...

According to what you just volunteered about yourself, that would be a misrepresentation. You might make it onto a list of Hot Male Mares, if you're really that hot. Get back to me when your colon has settled down and is ready for more.

Re:I wish to support this submission (0)

Anonymous Coward | more than 3 years ago | (#36491988)

Aha! Anonymous is a group of men with indigestion who like watching donkey shows in Tiajuana! With a profile like that, it shouldn't take the gvmt more than a year to round them all up! :D

Re:I wish to support this submission (2)

stms (1132653) | more than 3 years ago | (#36489690)

Yeah but looks like you've already signed Mr Anonymous Coward.

Re:I wish to support this submission (2)

Sunshinerat (1114191) | more than 3 years ago | (#36491356)

I would send money to Xiph.org, and this time not anonymously.
Money to help fight the fight.

Thank you xiph.org (4, Insightful)

jhoegl (638955) | more than 3 years ago | (#36489612)

I appreciate the time spent by xiph.org to think about and put together the information. Unfortunately I know little about patent processes, but I know that patents have been a major concern and pain, because one can, through no fault of their own, create a "method" like something that had been patented.
I also know that there are many patent troll companies out there and they need to be taken care of, regardless of how much the government thinks it brings in on fees during these processes.
I understand parts of what was said, and found nothing that I can disagree with. Although I would rather they do away with software patents completely, in our reality that will not be the likely case.
Thanks xiph.org.

Re:Thank you xiph.org (1)

Hylandr (813770) | more than 3 years ago | (#36489912)

Yea I was gonna say, my head hurt reading that one. Legalese dulls the brain cannon...

- Dan.

Re:Thank you xiph.org (2, Interesting)

bzipitidoo (647217) | more than 3 years ago | (#36490720)

I read it. Yes, it's complicated.

Xiph chose to focus on a small part of the problem: how patents make it hard to create standards. They gave a number of examples and scenarios. Then they suggest a few small reforms that may help a little bit. Rather than advocate against the patenting of software, they aim for more modest changes that they hope make it impossible to hold a standard hostage years later with submarine patents. Surface immediately, or lose all right to challenge the standard.

Is Xiph's recommendation a good idea? I don't know. Sounds good as far as it goes. But I think they do not go far enough. I fear clever legal experts will find ways around Xiph's solutions. And that they will turn those solution against us. Large companies could use Xiph's proposed mechanism to make an end run around any number of patents. Just make up another standard, and never mind whether the standard is ever adopted, as the point is to quash related patents. Would little folk be able to use this technique? And who decides what is a standard, what the requirements are to create a standard? Are we going to appoint ISO as our new overlords to decide that? MS's OOXML campaign springs to mind as an example of what could go wrong. In contrast, if we simply eliminate the patenting of software, we don't have those issues.

Re:Thank you xiph.org (0)

Anonymous Coward | more than 3 years ago | (#36490758)

I think they meant "reveal the relevant patents to the standards bodies you're a member of", not "reveal relevant patents to standards bodies they may or may not be a part of / aware of".

Re:Thank you xiph.org (1)

TENTH SHOW JAM (599239) | more than 3 years ago | (#36493848)

Tis simple. All the guys at xiph are asking is

If you are writing a standard, register it so patent holders can check their patents against it.
If you are a patent holder, check what standards are being penned in your patents field and inform the standards body quickly which patents this standard may affect.
Failure to do either of the above should result in a nullifying of your standard/patent on principal.

Re:Thank you xiph.org (0)

Anonymous Coward | more than 3 years ago | (#36490940)

> Although I would rather they do away with software patents completely

And I would like all "scientific papers" to use the SI standard, but -- unless Google creates a nifty unit demoronizer -- we're bound to keep on reading about feet, inches and other trollish units.

Same thing with copyright, RMS was wise enough not to charge against windmills -- instead he coined the term copyleft and used the concept to promote sharing, the same way big corps subverted the patent concept to avoid making innovation known (which was the original intent of the patent system).

There's already the OIN and that's a great thing, but corporations patents have nonetheless been used to stop new inventions -- or, in the best of scenarios, to milk money from inventors without having to invest in any kind of production/research... it's easy to understand, though, that if enough money is milked out, the innovator cows will get too slim and die. This besides any consideration about the ethical aspects of such milking.

Irony (-1, Troll)

Anonymous Coward | more than 3 years ago | (#36489614)

Xiph's accompanying YouTube video. [youtube.com]

Re:Irony (-1, Offtopic)

Psychotria (953670) | more than 3 years ago | (#36489778)

Xiph's accompanying YouTube video. [youtube.com]

That's pretty damn awesome! Not sure if it's ironic, but awesome nonetheless. Bookmarked.

Great initiative! - What is 'it should have known' (1)

udippel (562132) | more than 3 years ago | (#36489784)

Congratulation to a great initiative and a good effort to take at least standards out of the subject matter to be patented.
This would bring huge advantages to the end-user, inclusive the latter's purse.
And it would open up all standards to be beautifully implemented by Free and Open Source coders - and maybe more beautifully than by coders of proprietary software.
My concern is about the legal term should have known . Not that I mind this term being applied, though once introduced it would apply to all sides. It is fine with me, if Larry E. or Steve B. are hit by this. But John D. coding Free Software in his parents basement? I have currently nothing better on offer, though I'd rather see a text that even more clearly points out that anything standardized does automagically void patent-ability. This would offer a viable alternative to the inventor: You can standardize your protocol, and be the technology leader and at the same time be sure that nobody can (mis-)appropriate it; or you decide that you want royalties for your new superb-data-exchange-protocol, which will never be standardized.
I know, I know, this is not what I would would from my heart, but it could be a compromise to improve the current, miserable state pretty much.

Re:Great initiative! - What is 'it should have kno (1)

Anonymous Coward | more than 3 years ago | (#36489838)

But John D. coding Free Software in his parents basement?

Let's not feel too sorry for the basement guy. You're trying to make him sound too poor to get his own place, and yet you're also talking about a situation where he paid many thousands of dollars for both the patent fee, and also to hire a lawyer (or similar expert) to find all the relevant prior art. I think the guy can afford a few minutes to Google and learn whether or there are standards development in the works. Tip: if everybody has been talking about the applications for a few years, there just might be a group trying to create standards. If basement guy gets indignant and says "How dare you say I should have known that people are trying to standardize video codecs?!" I think we can all point and laugh at him without any feelings of guilt.

Re:Great initiative! - What is 'it should have kno (0)

Anonymous Coward | more than 3 years ago | (#36490302)

I assumed that what he meant was free software developers being sued for violating patents that they "should have known" about, not free software developers applying for patents of their own.

Re:Great initiative! - What is 'it should have kno (0)

Anonymous Coward | more than 3 years ago | (#36490248)

I think they just wanted some way to avoid companies using shell corps to insulate their "knowledge".

"I'm sorry, Right Hand Inc. didn't look through the patent portfolio of Left Hand Inc. before commenting on standard X. We are not the same company, even though we share corporate overlords."

Re:Great initiative! - What is 'it should have kno (1)

udippel (562132) | more than 3 years ago | (#36490432)

Yes, and?
It should be clearly spelt out that standard != patent.

Think about the metric standard for nuts and bolts. A 120x15 is clearly defined, including the thread. And now, at this very moment, when you tender for a work to be paid by taxpayers' monies, the only way (outside of imperial countries) is to specify that all nuts and bolts have to be standard metric sizes. And miraculously, some well-connected company has some so-called intellectual property on these, so each and every nut and bolt entering the public property will pay handsomely to the owner. That's a concession to print money. Microsoft has one of those concessions, as we found out here when the Swiss Government tendered software, and prescribed that it had to be Microsoft. So nevermind who gets the tender, all royalties are by default ending up in Redmond. The very moment a tender like that is written, some pockets will fill.
No, I'm wrong: metric nuts and bolts are unencumbered by patents. And that is good so.

Skype is the opposite. I hate it as much as I can hate anything non-free. But it doesn't transgress into the realms of standards. There is no H462 or ISO06990 for it. They may compete as one contender in the communications market. But MPEG, ISO, etc. are different. Specifications are laid open: and so they must be unencumbered. And not unencumbered through the backdoor, but as clearly spelt-out default.

Saved by "STANDARDS" (1)

SmallFurryCreature (593017) | more than 3 years ago | (#36490406)

This doesn't affect the eccentric inventor working in his basement. It is about STANDARDS. Standards are created by large companies not individuals. The work of an individual CAN become a standard but how can an individual submarine patent his own patent? No, this only affects those standards created by multiple companies where one party seeks to contribute something that later turns out it has patended. The individual could only be affected if they deliberately create a new thing, seek to make it a standard then reveal at the end they got a second element in it that is secret. There is no way to submarine a patent as part of standard in innocence.

Re:Saved by "STANDARDS" (1)

udippel (562132) | more than 3 years ago | (#36490484)

So far on submarining. If I understand it correctly. What's the term for a straightforward attack? An offensive? Like I invent something today, file tomorrow, and (with the world-wide 18 months between priority date and first publication) I take all efforts to include it into a standard, and - voila - miraculously when ISO09876 is out, it so happens that it is encumbered?
This doesn't fall under the terms specified, because nobody in the world will know the invisible patent. This is not some "now we have a standard, let's make use of it and get the details patented".
And John D. doesn't need to know; haha, nice income perspectives. Be the straw-man who is entitled to exemption from the need to know!

It should be as clear as the GPL: the very moment something is patented, the standard is forfeited and vice versa.

Some considerations (1)

dtfrncs (2180230) | more than 3 years ago | (#36489790)

I feel the following quotation asks some important questions that should be considered when making decisions that affect a group of people: "What assumptions about human nature and social organization underlie adversarial patterns of deliberation and decision making (e.g. debate, propaganda, partisanship, etc.)? What views of human nature give rise to mutualistic, reciprocal and cooperative patterns of deliberation and decision-making? How can we foster deliberative processes that encourage freedom of expression and build unity among participants? What social structures need to be in place to support more inclusive processes of deliberation and decision-making? What is the role of leadership and authority in unifying processes of deliberation and decision-making? What are other examples of integrative processes of decision-making? Concerning social integration: How can social tensions be resolved in a unifying framework? How do we ensure that raising consciousness and addressing the conditions of injustice that affect a particular group does not reinforce divisive distinctions? How do we ensure that emphasizing the value of unity does not reinforce passive habits of acceptance and resignation but rather strengthens the will to champion justice?" http://bic.org/statements-and-reports/bic-statements/transform-collective-deliberation-unity-justice [bic.org] How can we answer this?

Re:Some considerations (-1)

Anonymous Coward | more than 3 years ago | (#36490006)

mod post -1 piss-boring

Re:Some considerations (1)

Rennt (582550) | more than 3 years ago | (#36490438)

Odd. For me the above quotation only invokes another question: "English motherfucker, do you speak it?!"

Patent Filing Dates (1)

AmberBlackCat (829689) | more than 3 years ago | (#36489792)

I think there should be a rule that if any change whatsoever is made to the patent, the date of the modification becomes the new patent filing date.

Re:Patent Filing Dates (1)

waddgodd (34934) | more than 3 years ago | (#36490090)

You realize that means that you can make the Immortal Patent pretty trivially then? Make a trivial edit, such as 'change the third "the" to an "a" ', at the 39 year and 360 day mark, get a new forty years.

No, it is the other way around (1)

roguegramma (982660) | more than 3 years ago | (#36490114)

Currently a continuation or divisional application will enjoy the filing date of the application of which it is a continuation or divisional. This means any tiny improvement enjoys the protection of the original.

Xiph.org suggests that a continuation has as its own filing date. This means that there also is more prior art available, which potentially invalidates the patent.

You could argue that the proposed way to handle continuations still allows the filing party to extend a patent, but you forget that the filing party has the choice of filing a new patent anyway, which would just cite the previous patent, and would start the patent timer anew.

Re:No, it is the other way around (1)

arose (644256) | more than 3 years ago | (#36491850)

Wait, you can patent an 8 year old innovation by adding it to a 10 year old patent? And here I thought I had a good grasp on this insanity...

Re:Patent Filing Dates (1)

del_diablo (1747634) | more than 3 years ago | (#36491696)

If I got your suggestion correctly, you suggest that:
1. The improvement means that the old patent is invalid
2. The improvement means that the patent must be "re verifed", and go trough a sane process of checking if it actually is innovative enough to be worth of a patent
This would actually be quite good. It would mean that you have the choice between losing the patent rights by timer, or file and still lose them.
The real problem is that nobody is actually checking the patents in the first place, so it is not a good suggestion.

Inevitable pedantic post (1)

Anonymous Coward | more than 3 years ago | (#36489928)

OGG is not a codec, it's a container, usually for the Vorbis audio codec. And what's up with "ogg and theora"? Too lazy on Sunday?

WTF??? (1)

Anonymous Coward | more than 3 years ago | (#36489986)

That means that if a company, no matter how big or small, ever files a patent that relates to video compression, they have to suddenly join every single standards body just so they can tell those standards bodies that things they're looking into infringe on patents? At what point is this company supposed to move on and do engineering work?

Also, if I start a standards body that becomes moderately important in the field, then I have to suddenly deal with 500 different companies that deluge me with possibly related patents?

Re:WTF??? (4, Informative)

MysteriousPreacher (702266) | more than 3 years ago | (#36490366)

That means that if a company, no matter how big or small, ever files a patent that relates to video compression, they have to suddenly join every single standards body just so they can tell those standards bodies that things they're looking into infringe on patents? At what point is this company supposed to move on and do engineering work?

I believe these companies would only be under an obligation to disclose patents if they are active in the setting of a related standard. The goal here us to prevent people from helping to develop a standard reliant on a patent they just happened to forgot they held.

Re:WTF??? (0)

Anonymous Coward | more than 3 years ago | (#36492036)

This should apply not only to standards development activities that the patent holder participates in or knows about, but those it should have known about

Please explain the "should have known about" then.

Re:WTF??? (0)

Anonymous Coward | more than 3 years ago | (#36495080)

You believe wrong... "reasonably should have known" is in there, and tfa talks about conpanies failure to participate casting a cloud over current standards in formation. At the end they talk about replicating something like class action lawsuit notification procedures to apply to patent holders and standards .

Sounds reasonable, but the devil is in the details.

Re:WTF??? (1)

lsatenstein (949458) | more than 3 years ago | (#36496228)

Why should the patent office not be told that from now on, they have an obligation to advise the various standard organizations about software related patents. I can't see how any algorithm can be patented. I could see it being copyrighted, when it is published. We need in reality, to dispense with software patents altogether.

So what will happen? (1)

erroneus (253617) | more than 3 years ago | (#36490288)

"Defacto Standards" will be all that remains. Our standards will be determined by the best marketer or highest campaign contribution which results in the most purchases.

Ultimately, Microsoft's original strategy will become the only strategy that will work -- give it away for free until critical mass is achieved and then raise the prices.

Re:So what will happen? (2)

rtfa-troll (1340807) | more than 3 years ago | (#36490632)

"Defacto Standards" will be all that remains.

Why? Unless I'm missing something, your comment seems a bit nonsensical. This should actively encourage creating public open standards. If you want your product to be safe from patents, then the best way will be to state clearly how it works in a patent. Basically you would want to do that for every part of the products functionality apart from those bits where you can get a patent yourself or keep the functionality secret.

Re:So what will happen? (2)

sxeraverx (962068) | more than 3 years ago | (#36492438)

The "standards" will be open, sure, but no one will use them. ODF is an open standard. MS uses OOXML, and would use it even if they hadn't messed with ISO. And just because they are the largest player in the market, OOXML would become the de facto standard that any other office suite would need to support. It's true this isn't a patent case, but I'd imagine the same applies.

Re:So what will happen? (1)

Jonner (189691) | more than 3 years ago | (#36494036)

Thankfully, Microsoft has failed in their attempt to control the web. Even if de facto standards are all that matters, they will have to be agreed on by at least Microsoft, Mozilla, Google, and Apple.

Re:So what will happen? (1)

erroneus (253617) | more than 3 years ago | (#36494550)

Were you not around when MSIE6 came about? Ever notice it is still here?

Summarized version of the proposal in 5 words (1)

brunes69 (86786) | more than 3 years ago | (#36490344)

"Put up, or shut up"

Thanks Xiph.org. Someone has to fight the good fight.

My suggestion is.... (3)

Joce640k (829181) | more than 3 years ago | (#36490352)

a) The patent office needs to employ some experienced, unbiased software engineers who understand the word "obvious".

b) They need to break the link between "profit" and "number of patents accepted".

c) They need to make it much easier to invalidate a patent due to prior art and obviousness (this isn't necessarily a good thing but it's needed because of all the "a" and "b" they've done in the past).

And My suggestion is.... (2)

SmallFurryCreature (593017) | more than 3 years ago | (#36490426)

A) Joce640k Should vote for the increase in salary of goverment employees and not vote for the guy who offers the biggest tax cut.

B) Joce640k Should stop trying reduce spending by trying to make institutions be profitable regardless of the effects.

C) Joce640k Should stop voting for senators that are wholly in the pocket of big business just because they promised him a tax cut.

The patent office used to work, then cut backs came along. Now it doesn't. Who voted for the cutbacks?

Re:And My suggestion is.... (2)

rtfa-troll (1340807) | more than 3 years ago | (#36490636)

It's important to remember also that quite a few of the things the patent office does nowadays they do because of successful appeals against their patent rejections. E.g. the standard for "obvious" is at least in part determined by patents that the office rejected and then lost lawsuits about.

Re:And My suggestion is.... (0)

Joe Snipe (224958) | more than 3 years ago | (#36491968)

That's an absurdly reductionist viewpoint.

Re:My suggestion is.... (1)

Compulawyer (318018) | more than 3 years ago | (#36491832)

If you want that, then do this:

a) Petition Congress to end fee diversion. Currently, the USPTO is not allowed to keep all the fees it generates.

b) Whose profit? See (a).

c) Read the US Supreme Court's opinion in KSR v. Teleflex. Then read the comments on that case by patent professionals.

Clear Path to the Public Domain (3, Interesting)

Jahava (946858) | more than 3 years ago | (#36490606)

I propose the following change to the current patent system:

  • When a patent is initially filed, the patent filer may optionally include an itemized list of costs incurred to directly develop the patent.
  • At any time after the patent is granted, the USPTO offers the following option: If members of the public can accumulate and pay 150% of the stated development cost of the patent to the patent holder, then the patent irrevocably enters the public domain.
  • Failure to disclose development cost will result in a default value (around $100,000, can be raised by USPTO as needed) being assigned to the value of the patent.
  • Misleading or incorrect information on an itemized list disqualifies the list and results in default value being assigned to the patent.
  • Challenges and negotiations regarding the value of a patent can be brokered in a public setting through an institution established by the USPTO.

Under this system, inventors have a clear path to profit from the effort they invested to create a patent. No matter how much they invest, they will always make 50% of that investment back in profit. There is also a clear path to the public domain for the patent - anything so fundamentally critical can be purchased and contributed to the public domain with the USPTO as the intermediate broker. It is likely more profitable for any given company to place a patent in the public domain for all to enjoy than it is for them to license it from the individual company.

The buyer of the patent can be a company, community pool of money, or even the US Government itself (think cancer cure) based on the criticality of that patent to any entity's set of interests.

So patents aren't gold mines anymore. You can't build a business model around exclusivity. Who cares? Innovation will continue, as it always has, and now everyone can participate. I dunno; I like the idea.

Re:Clear Path to the Public Domain (0)

Anonymous Coward | more than 3 years ago | (#36490754)

And what about patents which are basically little more than a brilliant idea? In your suggestion these are quite worthless, while in reality they are not.

Re:Clear Path to the Public Domain (0)

Anonymous Coward | more than 3 years ago | (#36533942)

Actually, in that case they can omit the list of development costs and take the default value. $100,000 for a brilliant idea doesn't sound worthless to me, though arguably some ideas may be worth more than that.

Re:Clear Path to the Public Domain (2)

soren.harward (1153) | more than 3 years ago | (#36490802)

This system already exists, and already functions better than it would if the USPTO were involved. If you want a patent to go into the public domain, do the following:

  1. Start a nonprofit organization, like a 501(c)(3) in the USA. Legal costs for doing so are minimal compared to the purchase price of the patent.
  2. Raise the money.
  3. Buy the rights to the patent.
  4. Either allow the patent to expire by not paying the maintenance fee, or by explicitly disclaiming the remaining term of the patent and granting the rights to the public domain.

Not only does this procedure not need the involvement of the USPTO, but it has the added benefit of you not needing to pay any more for the patent than the selling price the owner is willing to accept.

On the other hand, determining the "selling price" is not quite as simple as "150% of the development costs". The value of a patent is not that it is a way of recouping your development and patent prosecution costs; there are plenty of accidental discoveries that turned out to bring in a lot of revenue from very little development costs. The value of a patent is that it gives you an exclusive right to an invention. So the true value of a patent is the revenue it will allow you to bring in over its lifetime, from sale or licensing, or from litigation awards. Most companies also treat patent acquisition as an arms race: as long as you and your closest competitor both have big patent portfolios and are each infringing on the other's patents, and as long as patent litigation is as costly as it currently is, then you can have occasional skirmishes with out-of-court settlements being traded back and forth while avoiding an all-out infringement litigation war.

So, in neither case is a patent owner going to be enthusiastic about selling if a nonprofit shows up and says "we'd like to destroy your patent at the price of its development costs". To buy the patent, you'd have to cover the cost of anticipated revenue from that patent and the cost for having lost a deterrent against litigation.

Re:Clear Path to the Public Domain (1)

Anonymous Coward | more than 3 years ago | (#36491232)

The point of the OPs idea is to prevent the uses of patents you are referring to. He doesn't want to support patents granted on ideas that were accidental or weren't expensive to come up with. He wants to cap the value of a patent. He wants to make it harder to use patents as weapons against your competitor and thus make it less necessary to have defensive patents. As you point out yourself, offering to buy patents does none of those things, so the OPs system does not already exist.

Re:Clear Path to the Public Domain (0)

Anonymous Coward | more than 3 years ago | (#36491090)

The short answer to the troll suggestion: "If members of the public can accumulate and pay 150% of the stated development cost of the patent to the patent holder, then the patent irrevocably enters the public domain." is that it would destroy the incentive to invent new things.
I hold that this is similar to the following statements:
1) If a venture capitalist invests in a company which goes public, it should never be allowed to be sold for more than 1.5 times the intial venture captialist's investment nor make more that 1.5 times the initial venture capitalist's investment in profit. Therefore, companies cannot grow in value.
2) If the bank loans money, they cannot charge interest which accrues to more than 1.5 times the money loaned and the cannot loan the money more than once.

Re:Clear Path to the Public Domain (-1)

Anonymous Coward | more than 3 years ago | (#36491140)

There's a pretty damned big problem with what you say.

Lets assume I own a firm devoted to research and development. Further, assume that my goal is profit, and that the point of the patent system is to grant me a limited time monopoly to the ideas originated with my funding.

Now, in this hypothetical case, what I do is employ scientists, doctors, and engineers- just as real world companies do EXACTLY THIS, to develop products or ideas.

NOT ALL OF THESE ARE SUCCESSFUL

That is the big deal. The point of my theoretical company (and the real world ones that do exactly this) is that they offer wages to thinkers and developers, in a form of gamble. Good ideas profitable ideas, bad ideas, and good ideas that are not profitable- only the first category would be allowed to exist in your world, and the people who have the second two categories of ideas would PAY WITH THEIR LIVELIHOOD.

So for every GOOD idea that costs X dollars, there are more than one unprofitable (or actually bad) ideas that ALSO cost X dollars. The point of the patent system, the whole idea, and the one thing it supposedly does right, is to reward you for coming up (or funding) that GOOD idea. If someone can come along and pay 1.5x what you paid for it, then your business model is right out- because you have to cover 6x or more what you paid for it. In other words, that business goes away. But this isn't just limited to aggregate companies that pay for research, it is also true in a much more discreet way to actual individual inventors. If you are a lone inventor (granted, uncommon, but these do exist), your potential earning for coming up with ANYTHING have just been artificially capped at 1.5 times your development cost- which means what you should actually do is go to Wall Street and find ways to snerk other humans out of money instead of trying to actually advance the stage of human science.

Patents are eminently abused, but your solution is essentially communism, and removes the financial incentive to come up with ideas at all.

Re:Clear Path to the Public Domain (3, Insightful)

evanbd (210358) | more than 3 years ago | (#36492028)

Most ideas don't pan out. This applies to patent-worthy, reasonably thought out ideas as well. Plenty of things look perfectly reasonable at the patent stage, but just don't quite work for one reason or another. This causes a problem for your idea: if I put in the effort to develop ten patents, all of them reasonable, and pursue them further, perhaps one or two or three will actually turn into a saleable, profitable product. If I can only recoup 1.5x my costs on those 3, and nothing on the others, I lose money.

Patents are, in general, a bet on an unlikely outcome. Much like startup companies. Most of them fail, too. In order to make that work, you need a possibility of a high return. Maybe not an astronomical return, but a high return. Of course, none of these comments are relevant to patent trolls and such, but the problem isn't quite as trivial as you suggest.

Re:Clear Path to the Public Domain (0)

Anonymous Coward | more than 2 years ago | (#36497042)

but the problem isn't quite as trivial as you suggest

I agree with you on that. But the OP is probably barking up the right tree.

If the problem is with monopolization, then why not apply a market value to the patent? What if patents were always up for public sale from a certain cost recovery standpoint .. 200%, 300% even 1000% .. whatever would make it work. But rather than using a fixed cost buyout system, have an open auction platform. If big company A doesn't like little patent troll B and their patent cost 2.3 million to develop, they bid 20 million to buy the patent out from under them. No more 3 year 9 figure trolling settlements.

This would allow the little innovators to come up with product ideas that the big end of town could buy out and bring to market without having to wait for the little company to prove that (for example) the electric car is going to be a big seller..

Re:Clear Path to the Public Domain (1)

lsatenstein (949458) | more than 3 years ago | (#36496246)

I wonder if there is a way to pad the development costs. I guess a million times would be an appropriate pad amount.

Re:Clear Path to the Public Domain (1)

rdnetto (955205) | more than 2 years ago | (#36497566)

This would encourage patent filing. It increases the value of a patent from a tool in litigation by adding some inherent value to it ($100K). What if the patent had no development costs beyond filing? Should the owner still get $100K? 0?

I agree with Xiphs comments, though other measures need to be taken in conjunction with them. The public purchase of a patent should only be allowed where it forms the basis for a standard. On top of that, it would be nice to see RAND licensing for patents - that could solve a lot of problems we have with the current system (reasonable being the general legal mechanism for, 'don't try anything funny').

length (2, Insightful)

Anonymous Coward | more than 3 years ago | (#36490782)

With the pace of competition today, why do patents last more than 2-4 years?

Patent duration (2)

Crouty (912387) | more than 3 years ago | (#36491666)

Because there are developments that require years and millions of $, think pharmaceuticals.

Software must not be patentable. Why? Because with software patents it is possible to monopolize mathematical concepts, see http://vimeo.com/11206098 [vimeo.com]

Alternative (0)

Anonymous Coward | more than 3 years ago | (#36490866)

It almost seems easier to just relocate your business to another country, or form a new nation. I am not meaning to sound like a troll, but i do wonder what inventions we might never see until the status quo deems them profittable enough. Humans did do some amazing feats thousands of years ago without any need of patents.

Value-based system (0)

Anonymous Coward | more than 3 years ago | (#36491346)

I have been thinking about a possible model for handling the awarding of patents that might mitigate certain problems with our current patent system. I'm curious as to if anyone has any feedback on it.

As the last stage of the patent registration process (so when the applicant already knows that the patent will be awarded), the applicant declares how much they will charge to license the patent. There would probably need to be multiple licensing models (flat-rate, per product sold, etc.) that the applicant could opt for - I don't know enough about patent law to go into detail here. The applicant must then pay a fee whose amount is related to the declared licensing cost before the patent is officially awarded. (The clock is already ticking on the patent's expiration, of course.) The applicant is free to charge less to parties to license the patent if they choose, but are obligated to license it to any interested party for no more than the previously declared amount.

Here are the advantages of the system:

1. Under the current system, there are currently parties who file or acquire a large number of cheap, vague patents solely in the hopes that some other party develops a massively profitable technology that happens to make use of them so they can extort a large sum of money from them. This practice is a parasitic load on technological development and should not be unnecessarily enabled by our patent system. The fact that the patent registration fee under the model I describe is related to the size of the licensing fee would discourage this practice. If the applicant didn't pay much to register the patents, then they cannot charge much for licensing. If the applicant did have enough confidence that the patents would actually be used profitably when they registered the patents, then that would indicate that the patents were actually of some value.

2. If the applicant is the proverbial "private inventor" without much in the way of financial resources but develops what they believe to be highly valuable IP, the fact that the fee need not be declared until it is already known that the patent will be awarded will aid in them acquiring investment capital to cover the fees to complete the registration of any relevant patents.

3. Under the current system, there are some industries in which companies acquire patents on potentially competing technology for the sole purpose of sitting on them and preventing what would otherwise be a better alternative to their business from developing. The mandatory licensing system would effectively prevent this practice, and the relation of registration fees to licensing costs would discourage setting unreasonably high prices to potential competitors.

Thoughts? Criticisms?

Care must be taken with soft technology (0)

Anonymous Coward | more than 3 years ago | (#36496058)

A most reasonable request by Xiph.

If your part of a standardizing organization and the algorithm, process, procedure or function you have developed to has been developed and patented prior to standardization you shouldn't be able to force payment for it on everyone who might use it. Though Xiph goes too far assuming that groundbreaking technology which might become a standard should be revoked from the patent holder upon standardization whether or not they know about the potential standard coming about from their work.
Virtual wars are waged over standards. BlueRay players in Playstations won Sony the HD standard war, they will get royalties for every player and disk sold as long as their patent stands. The Alcatel-Lucent Patents on MP3 technology ends soon and while it is the standard their patent should not be revoked because of it.

Office Removalists Melbourne (0)

Anonymous Coward | more than 2 years ago | (#36497560)

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Xiph.org Comments For the FTC's Patents Workshop (0)

Anonymous Coward | more than 2 years ago | (#36505356)

As an IP attorney (okay, for the public, "patent" attorney" - sheesh!) HOORAY! It is about time we started bringing some common sense to this problem!
Also, I agree with the comments, to some extent. Starting with copyright, all IP should "support the arts and sciences", not big business, and all of it should be for more limited terms; I propose 5-10 years for copyrights (and no automatic copyright), and 10 years or so for patents. Trademarks are different, but they should be harder (MUCH harder) to obtain and retain.
Gene Cavanaugh
Small Entity Intellectual Property Attorney
dba Law Offices of M. E. Cavanaugh

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