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The Man Who Created the Pencil Eraser and How Patents Have Changed

samzenpus posted about a year ago | from the not-really-new dept.

Patents 234

fermion writes "This weeks 'Who Made That' column in The New York Times concerns the built in pencil eraser. In 1858 Hymen Lipman put a rubber plug into the wood shaft of a pencil. An investor then paid about 2 million in today's dollars for the patent. This investor might have become very rich had the supreme court not ruled that all Lipmen had done was put together two known technologies, so the patent was not valid. The question is where has this need for patents to be innovative gone? After all there is the Amazon one-click patent which, after revision, has been upheld. Microsoft Activesync technology patent seems to simply patent copying information from one place to another. In this modern day do patents promote innovation, or simply protect firms from competition?"

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it looks like they... (5, Funny)

Sigvatr (1207234) | about a year ago | (#44859301)

erased his patent i'll just see myself to the exit

Independence of the courts ? (4, Insightful)

Taco Cowboy (5327) | about a year ago | (#44859597)

In this modern day do patents promote innovation, or simply protect firms from competition ?

The issues regarding patents are not only about patents, but also the courts.

As the pencil and eraser case (circa 1858) has illustrated, the court back then still managed largely to uphold their independence.

Not now.

Today, the courts have become an apparatchik for the corporations, the banksters, the politicians, and the power that be.

Judges back then were chosen based on merits. Judges today are chosen based on who they know.

There are those who create & those who devour (4, Interesting)

smitty_one_each (243267) | about a year ago | (#44859643)

Some build up, through genius employed.
And lesser men must see work destroyed.

Re:Independence of the courts ? (4, Insightful)

Aviation Pete (252403) | about a year ago | (#44859665)

Judges back then were chosen based on merits. Judges today are chosen based on who they know.

or maybe the are simply incapable to understand the issue. Back then, a patent had one or two pages and described a (mostly mechanical) issue in simple language. Lawyers today make sure that a patent is minimum 50 pages, and some run to more than 1000. The language is extremely formalized and very hard to read for untrained minds. And the issues are so specialized that the average judge would have to train several years in the particular field to understand what the invention is about.

Besides - most patents today have most of their innovation in the way the lawyers complicate simple issues. Sigh.

Re:Independence of the courts ? (4, Insightful)

Jane Q. Public (1010737) | about a year ago | (#44859873)

"Back then, a patent had one or two pages and described a (mostly mechanical) issue in simple language. Lawyers today make sure that a patent is minimum 50 pages, and some run to more than 1000. The language is extremely formalized and very hard to read for untrained minds. And the issues are so specialized that the average judge would have to train several years in the particular field to understand what the invention is about."

Maybe, but -- though I hate to put it this way -- it's really not that simple. Complexity has little to do with the subject under discussion.

The one-click patent, for example, should never have been awarded because it did nothing new.

Not only must a patent be non-obvious to someone in the relevant field, and not only must there not be "prior art" (someone else already doing something too similar) it must also be an actual invention. That is to say, it has to be or do something completely new. The point made by the court in OP's post is that it was not an invention because it was just two common things, stuck together.

A can opener welded to a crowbar is not patentable, because it doesn't do anything new or in a novel way. It's still just a can opener on one end, and a crowbar on the other. But if you stuck two common things together in such a way that the result does something new, then you have a patentable invention.

If you found a way to make a fan that blows air out of potato chips, in principle that would not be patentable, because you just "stuck together" two existing things; fans and potato chips. It doesn't do anything novel. But if you could build a fan out of potato chips in such a way that it was still edible, you would have a patentable invention because it does something new.

Re:Independence of the courts ? (0)

khallow (566160) | about a year ago | (#44860367)

The point made by the court in OP's post is that it was not an invention because it was just two common things, stuck together.

Actually, I don't see why that is relevant since a pencil with a built in eraser did do something new - it erased out of the box which apparently was new for pencils at the time. My take is that ancient patent holder was indeed robbed. But even if he had gotten that patent, it'd still be long gone by now.

Re:Independence of the courts ? (2)

gagol (583737) | about a year ago | (#44860591)

So, putting a led in a keychain in patentable? I have some writing to do and registered letters to send.

Why would you want to blow air out of potato chips (1)

Anonymous Coward | about a year ago | (#44860475)

Why would you want to blow air out of potato chips?

To make them denser?

I don't see why anyone would want one, but your invention to blow the air out of potato chips would certainly be novel and patentable.

Re:Independence of the courts ? (2, Interesting)

Phroggy (441) | about a year ago | (#44860563)

OneClick was something new; my recollection is that nobody had done anything quite like it - but not because it was novel or innovative. Nobody had done it before because everybody thought it was a bad idea. Store people's credit card numbers on file, readily accessible later just in case the customer decides to come back and buy something else? Click one button to effect a transaction, with money changing hands and everything? Are consumers really gonna trust you to manage that responsibly?

Amazon's innovation was proving that the answer to that question is yes. That's all. They showed that they could do it without consumers rioting in the streets. If you had asked anyone "skilled in the art" to design a system that could buy stuff online with the click of a button, anyone could have built it. They just probably would have told you it was a bad idea.

Re:Independence of the courts ? (2)

cas2000 (148703) | about a year ago | (#44860667)

> Nobody had done it before because everybody thought it was
> a bad idea.

actually, at the time, pretty nearly everyone was doing exactly that and had been doing it for years because they just didn't give a shit that it was a bad idea. after all, "we'll never get hacked".

Amazon's "innovation" was taking an obvious and well-known idea and claiming it as their own in order to suppress competition.

and even that wasn't an innovation. it's been SOP for decades, at least.

Re:Independence of the courts ? (2, Informative)

Phroggy (441) | about a year ago | (#44860737)

actually, at the time, pretty nearly everyone was doing exactly that and had been doing it for years because they just didn't give a shit that it was a bad idea. after all, "we'll never get hacked".

It sounds like you don't understand what OneClick is. Not only was it not common then, it's not common now. Storing the credit card number is only part of it. Other than Amazon, the only site I'm aware of that does it is Apple's iTunes Store, and Apple licensed the patent from Amazon.

Re:Independence of the courts ? (3, Interesting)

Nemyst (1383049) | about a year ago | (#44860639)

The point of the GP is that even a simple patent like Amazon's one-click can be obfuscated, given an army of lawyers, into something unintelligible for most people, judges included. Since there doesn't seem to be a clause for lack of clarity being grounds for patent rejection (which would help a lot in situations like this), the judges just accept them instead of trying to learn or, worse, looking foolish for acknowledging that they don't understand the patent (gasp!).

Re:Independence of the courts ? (1)

Anonymous Coward | about a year ago | (#44860733)

The analogy that is usually mentioned is comparing a bowl of fruit with a can of fruit salad. The latter is just an aggregation where each component is unchanged. The latter is a combination where the components are transformed to have a synergistic effect, i.e., the whole is more than the individual parts.

Re:Independence of the courts ? (3, Funny)

Anonymous Coward | about a year ago | (#44860765)

That is to say, it has to be or do something completely new.

I'm confused, really -- what part of "... On a Computer" do you _not_ understand?

Re:Independence of the courts ? (3, Insightful)

Dachannien (617929) | about a year ago | (#44859893)

Well, most (not all) computer software related patents run maybe 20-25 pages double spaced, plus figures. As a printed issued patent, they're a good bit shorter than that page-wise. Very few go a thousand pages long, because it costs extra.

The real problem in the courts is, as you say, that the judges have very little expertise in the relevant arts. Thus, each side presents its expert witnesses who say the exact opposite thing from each other (look hard enough and you can find an "expert" to support just about any argument you might have), and the judges are none the wiser.

At the PTO, you're right that attorneys draft applications to intentionally confuse. Claims are drafted using vague language for the sake of vagueness, which results in claims that cannot practicably be fully searched. The objective is in many cases not to get a good patent, but just something with a patent number on it, because attorneys know that even a bad patent has value if nobody is willing to pony up the cash to challenge it. The PTO is hamstrung in addressing these issues by the case law, which says that vagueness is not the same as indefiniteness, and so we can't reject claims solely for being vague if the scope of the claims can be discerned.

The only place we get any real sanity is (in sparing quantity) from the Supreme Court, who occasionally say things like, this is clearly an abstract concept, so it's not patentable, or this is just common sense, so it's obvious, or what have you. When this happens, it helps the PTO and the courts weed out some subset of the bad applications and patents. But out of all the patent cases litigated every year, maybe one or two of them make their way to the SCOTUS, so arriving at eventual sanity will take a long, long time.

Re:Independence of the courts ? (5, Informative)

Anonymous Coward | about a year ago | (#44859849)

"Today, the courts have become an apparatchik for the corporations, the banksters, the politicians, and the power that be."
"Judges back then were chosen based on merits. Judges today are chosen based on who they know."

Are you kidding me? Cronyism was way worse in the 19th century. And if you think corporations wield power now, then you'd crap your pants if you read any in-depth history of the gilded age.

Patent lawyers know exactly what changed between then and now: the movement of all judicial patent appeals to the Court of Appeals for the Federal Circuit. The court effectively specializes in a small number of cases, and has taken up the cause of making patent rights more robust. The chief judge of this court has actually written the book on patent law, and he's about as pro-patent as you can possibly get. This is conservative judicial activism at it's absolute finest.

FWIW, there have been two ebbs in American patent law. The middle of the 19th century and the middle of 20th century were when patent rights were at their weakest. The highest point before the modern era was roughly around the time of the New Deal, when courts slowly became more deferential to Congress because of the turbulent times. This was when agricultural patents (e.g. on seeds and cultivars) came into force (i.e. Plant Patent Act of 1930).

But the power of patents today is simply beyond all comprehension. The run up began in the 1970s, but didn't really get moving until the Court of Appeals for the Federal Circuit was created.

American Exceptionalism and Moral Superiority (-1)

Anonymous Coward | about a year ago | (#44860087)

Yes, I do! I find it quite amusing that America was schooled by Putin on exceptionalism.

For a country one who claims to boast its own national exceptionalism and moral superiority. Yet, forgets to mention they are the holders of the largest national debt known to man. If you ask me. I find this fact hardly exceptional or superior ... heck it's not even moral!

Re:American Exceptionalism and Moral Superiority (1)

fermion (181285) | about a year ago | (#44860329)

Wealth is not necessarily equivalent to cash, and many wealthy families do base their wealth not on cash, but on creation of product. It is unfortunate that so many wealthy people do not actually create anything, and therefore give wealth a bad name. Neither is debt a bad thing, if it is backed up by wealth. A lot of the debt problem is purely fictional. Look at Brazil. Cash is an invention of government, and the promotion of debt as a problem is used to purposely limit certain things for political gain. The US still has a lot of wealth and ability to create.

Re:American Exceptionalism and Moral Superiority (1)

Anonymous Coward | about a year ago | (#44860585)

Illusions created by media. Is the USA the home/king of much intellectual property? Does this give them the ability to create? The answer to both those questions was "Yes it _was_".

The real value of the USD is perpetuated through the strength of their military and is the only reason why other nations see it as a desirable currency. Since the US military kill and steal as common as brushing one's own teeth. In the eyes of the world it makes the USA a reliable place to lend and to hedge bets. Take away the warmongering and this factor becomes less apparent.

You've stated one very important truth.

Wealth is not necessarily equivalent to cash ... but on creation of product .... so many wealthy people do not actually create anything

Let me explain this in geek speak. If the US economy was a piece of software it's about to SEGFAULT and continually using malloc() will only get you out of trouble for so long.

Revised Summary (4, Insightful)

cosm (1072588) | about a year ago | (#44859319)

In this modern day patents simply protect firms from competition.

Re:Revised Summary (4, Funny)

_merlin (160982) | about a year ago | (#44859327)

In this day and age everyone would just be giggling about a guy being called "hymen" of all things.

Re:Revised Summary (3, Insightful)

William-Ely (875237) | about a year ago | (#44859427)

I wish I could mod this post "Sad but True".

Re:Revised Summary (0)

Anonymous Coward | about a year ago | (#44859477)

Even worse. Hymen Lip Man.

Re: Revised Summary (-1)

Anonymous Coward | about a year ago | (#44859661)

Worse: BarSNAck ObaDma' Bin-Sal-a-Dim

Re:Revised Summary (4, Funny)

Chemisor (97276) | about a year ago | (#44859617)

In this day and age everyone would say that his name was obviously the source of his invention, being a constant reminder to put a rubber on his pencil.

Re:Revised Summary (0)

Anonymous Coward | about a year ago | (#44859773)

When I was in college, there was a band named "Hymen and the penetrators". It always seemed like they were trying to force their way past something...

Re:Revised Summary (0)

Anonymous Coward | about a year ago | (#44860189)

Even more funny is that he was a Lip man.

Re:Revised Summary (0)

Anonymous Coward | about a year ago | (#44860235)

It sounds like he really got "The Shaft"

Re:Revised Summary (5, Insightful)

tmorehen (2731547) | about a year ago | (#44859449)

Patents have always protected firms from competition. That has always been part of their purpose. Another part of their purpose is to enable some one ordinarily skilled in the art to duplicate the invention when the patent expires. That's the trade-off that justifies patents, as opposed to treating inventions as trade secrets.

What has changed is the definition of obviousness and consequently innovation. Now something is innovative if no one can point to prior art, notwithstanding that it may be obvious to the proverbial someone skilled in the art. Today, the pencil plus eraser would be patentable.

Another thing that has changed is that patents have become so vague that they cannot be duplicated nor can anyone be certain what they cover. This is particularly a problem for business method and software patents.

Re:Revised Summary (0)

Anonymous Coward | about a year ago | (#44859677)

I think a great issue is "software patents" and certain things are treated more like copywrite. Rather then being limited to 20 years. And the recent trend to move patents to more of a literary copywrite style system.

Re:Revised Summary (4, Interesting)

Anonymous Coward | about a year ago | (#44859783)

Actually, I think even the idea of enabling people to duplicate inventions is not working anymore

I read an article (can't remember where), saying that companies are actually FORBIDING their employees from checking the patent database, just in case they find out that another patent might perhaps cover something they are working on.

This way, if a lawsuit occurs, they can claim ignorance of existing patents.

But the downside is that people are actively avoiding looking into patent descriptions.

Re:Revised Summary (0)

Anonymous Coward | about a year ago | (#44859863)

"Gee, it would be a real shame if I didn't get a huge bonus this year. In an effort to work harder to earn one next year, I might well undertake some due diligence searching of the patent database, and email my discovery of competing patents to lots of relevant stakeholders."

Re:Revised Summary (3, Interesting)

0123456 (636235) | about a year ago | (#44860113)

I read an article (can't remember where), saying that companies are actually FORBIDING their employees from checking the patent database, just in case they find out that another patent might perhaps cover something they are working on.

Yes. In my previous job, we weren't allowed to read patents for that reason.

Re:Revised Summary (0)

Anonymous Coward | about a year ago | (#44860547)

Right, not because of simple infringement, but _knowing_ infringement, which triples the damages.

Re:Revised Summary (1)

Anonymous Coward | about a year ago | (#44860569)

Obviousness is pretty much dead. I was told by our IP attorney that unless it's in another patent, or in a paper published someplace (e.g. "one could extend this technology by attaching it to a pencil...") then it's not obvious - because no one predicted it.

Obviousness is pretty hard to quantify in a cut-and-dried sort of fashion, and the law needs that. How do you establish that it's obvious to someone skilled in the art? How skilled? Anyone? What about a super genius? So they just basically don't focus on that part anymore. Kinda sucks, but you can see the potential for abuse.

Re:Revised Summary (0)

Anonymous Coward | about a year ago | (#44860759)

How skilled? Anyone? What about a super genius?

It's not quite that vague. The phrasing is "an ordinary person skilled in the art", so no, not a super-genius. Still vague and virtually impossible to establish.

A little bit trickier is "obvious how to do it once you hear the idea" (pencil and eraser fits this once you say "sell a single device that can easily write and remove writings"), or "obvious thing to do" (pencil and eraser did not fit this given that human history did not include such a thing until relatively recently, and there's no obvious manufacturing process or technological breakthrough that prevented it from happening decades if not centuries earlier if it was so obvious).

Patents are supposed to be more about the first. But then you dig deeper. Many software patents sit a little in between where the actual problem statement legitimately does not lead people to automatically consider every item listed in the patent claims section -- but that's because internally, they started with a more focussed problem for which this solution is obvious, then generalized the problem for patent purposes.

Re:Revised Summary (0)

Anonymous Coward | about a year ago | (#44859521)

In this modern day patents simply protect firms from competition.

Yes and also the fact that most firms don't do long term research. It's all about the next idiot thing to sell in the next 6 months. With this kind of attitude it's obvious you're going to patent stupid things. Things that should never ever be considered patentable by the patent office in the first place. And of the course the other problem is the patent office in itself that basically works like the FISA court but without all the secrecy. They rubber stamp anything idiot or not.

The U.S. Patent System Proves (1)

Anonymous Coward | about a year ago | (#44859351)

that the foxes have taken over the hen houses.

You know where it went.. (4, Insightful)

djupedal (584558) | about a year ago | (#44859355)

Into the hands of lobbyists, who paid for legislators to make it a pay-to-play activity.

I'm working on a patented drinking fountain water filter that will be required by law for use in all public schools, hospitals and train stations - it will also be a law that they must be replaced every 30 days with a recycling fee paid to franchised non-profit companies staffed only by the homeless.

Re:You know where it went.. (5, Interesting)

hedwards (940851) | about a year ago | (#44859471)

You're missing the point. A lot of this was unintentional. They made the USPTO run on fees that were charged for patents which gave the USPTO and incentive to rubber stamp patents while not receiving sufficient funding to cover the cost of having patent examiners that could do the investigation that they used to do.

What needs to happen is that the USPTO needs to go back to being a government service the user fees need to be based upon the amount of time and energy it takes to deal with the application. And while we're at it, the duration of the patent period should go from the point where the first application is received to a reasonable period after that. For technology 7 years is likely more than adequate as a lot of that IP is no longer of value several years later.

And obviously, anybody filing for a patent on software gets to volunteer to test the prototype rectal exam bots.

Re:You know where it went.. (4, Insightful)

whoever57 (658626) | about a year ago | (#44859499)

A lot of this was unintentional. They made the USPTO run on fees that were charged for patents which gave the USPTO and incentive to rubber stamp patents while not receiving sufficient funding to cover the cost of having patent examiners that could do the investigation that they used to do.

What makes you think that the effects of those changes were unintentional?

Re:You know where it went.. (2)

hedwards (940851) | about a year ago | (#44860327)

Because I'm familiar enough with the federal government to realize that they make a ton of mistakes due to the scope of their work. It's incredibly hard to predict what legislation is going to look like when passed and more likely the small government folks thought they could lower taxes for the rich by making the USPTO depend primarily on fees to conduct its affairs.

Re:You know where it went.. (2, Informative)

Anonymous Coward | about a year ago | (#44859843)

You are incredibly wrong. Yes, the patent office makes a lot of money from fees. But that money is controlled by Congress, not the Patent Office. The patent office doesn't get all that money. Which is actually part of the problem. There are not enough examiners, causing huge backlogs. That's why patents get rubber stamped.

But even that isn't the real problem. The real problem is the Federal Circuit, which was created specifically to handle patent appeals. The original idea was that the court would be staffed by judges that were experts in patent law. That hasn't turned out to be the case. Few of the judges have had any experience in patent law before joining the court. The Fed Circuit has made big changes in patent law over the past few decades. Fortunately, over the past ten years, the US Supreme Court has been putting the smack down on the Fed Circuit in cases such as Bilski.

Re:You know where it went.. (1)

hedwards (940851) | about a year ago | (#44860317)

Do you dispute the fact that the USPTO is funded primarily by fees these days? Because it means nothing who controls the purse strings to the issue. They get their money through application fees and if they start turning down a lot of the fees there's a risk of having fewer people trying to get patents.

It's a conflict of interest for them to turn down patents when their funding is derived mainly from patent fees.

And the court is another level of concern, but a lot of these things wouldn't get to the court if they weren't granted in the first place.

Re:You know where it went.. (1)

sribe (304414) | about a year ago | (#44860403)

What needs to happen is that the USPTO needs to go back to being a government service the user fees need to be based upon the amount of time and energy it takes to deal with the application.

I've thought for a long time that the application fees should be increased 50%, with the 50% being rebated in the case of any patent that is issued, but retained for patents that are denied.

Re:You know where it went.. (2)

Lloyd_Bryant (73136) | about a year ago | (#44860649)

I've thought for a long time that the application fees should be increased 50%, with the 50% being rebated in the case of any patent that is issued, but retained for patents that are denied.

No - what needs to be increased (in some cases dramatically) are the patent *maintenance* fees. At present, the patent office has 3 fee schedules, depending on the size of the patent-holding entitiy, but the *highest* of the three only costs the patent holder about $13,000 over the life of the patent. Not even pocket change for a major corporation.

Substantially higher fees would tend to reduce the current tendency of companies to maintain large numbers of "trivial" patents (think "pinch to zoom" as an example). Also forcing "Non-practicing entities" into the highest fee schedule would make it much more expensive for trolls to maintain a large portfolio of trivial or dubious patents.

Re:You know where it went.. (0)

Anonymous Coward | about a year ago | (#44859745)

I don't think it's quite that simple. I think part of the problem is that because people are more specialized in their fields of work and knowledge, putting together existing technologies in obvious ways can completely confound many onlookers into thinking that it's a complicated non-obvious invention. Talk to 95% of Americans about a very basic database query and they will go into full mental shutdown; now tell them how you link a database to a shopping cart system to a webserver and HOLY FUCK HOWDY DODAT? Hence, the one-click patent and tons of other shit that should never be allowed.

Re:You know where it went.. (0)

Anonymous Coward | about a year ago | (#44860269)

Care to cite the law that was put into place that allowed for a patent to be passed through the system today that wouldn't have passed through 50 years ago?

Lawyers (3, Funny)

mtrachtenberg (67780) | about a year ago | (#44859369)

Lawyers and lobbyists have come a long way since 1858; with enough lawyers and lobbyists today, ScrewCorp could patent a pencil colored yellow.

Re:Lawyers (-1, Troll)

dpbsmith (263124) | about a year ago | (#44859417)

The yellow color was intended to evoke Mongolia--racism in the most literal sense--because Mongolia was the site then famous as the site where a lode of the highest-quality graphite had been discovered.

So yellow pencils could not have been patented--I hope--but whoever made them first might very well have had a legitimate claim to trademark protection as "trade dress."

Re:Lawyers (5, Interesting)

g01d4 (888748) | about a year ago | (#44859799)

Really? This link [pencils.com] sounds more reasonable:

During the 1800s, the best graphite in the world came from China. American pencil makers wanted a special way to tell people that their pencils contained Chinese graphite. In China, the color yellow is associated with royalty and respect. American pencil manufacturers began painting their pencils bright yellow to communicate this regal feeling and association with China.

Re:Lawyers (-1)

Anonymous Coward | about a year ago | (#44860415)

Reminds me of a joke... Barack Obama and Joe Biden are hanging out. Barry gives Joe a pencil and says, "Hey Joe, uhh does this uhh pencil smell funny?" Joe smells it says "ugh, it smells like shit". And Barry says, "Now let me be clear, uhh, that's because I uhhh stuck it in my uuhhh asshole."

The golden Rule (1)

Opportunist (166417) | about a year ago | (#44859409)

He who has the gold makes the rule.

I doubt that it was different back then, only that fewer companies saw the value in rigging the patent system and claiming them like claiming a gold mine. It's a pretty "advanced" technique and requires a lot of money backing you.

At least some corporation, preferably a couple thereof.

dying democracy (1)

manu0601 (2221348) | about a year ago | (#44859419)

In this modern day do patents promote innovation, or simply protect firms from competition?

Asking the question is giving the answer. Wealthy firms had enough lawyers to kink the law by landmark rulings. The fact that the People cannot get this fixed by the legislator after decades is a hint that democracy is sick

Re:dying democracy (2)

hedwards (940851) | about a year ago | (#44859491)

No, the reason why this isn't being fixed is that a significant number of voters vote for politicians that run on a platform that includes deregulation and freeing the market of even modest restraints on bad behavior. And are quite vocal in shouting down anybody that suggests even modest reforms as being elitists and pushing for a totalitarian, nanny state.

The main problem with democracy is that it depends upon the voters actually being interested in voting for people that represent their best interests. As long as one party routinely votes against the self interests of their own voters, and hamstrings the other party, you get this sort of a mess.

The US is hardly unique in having problems that need fixing but can't be fixed because the politicians aren't interested in it. Most countries are like that. Assuming you even get to vote there.

Re:dying democracy (1)

manu0601 (2221348) | about a year ago | (#44859587)

No, the reason why this isn't being fixed is that a significant number of voters vote for politicians that run on a platform that includes deregulation and freeing the market of even modest restraints on bad behavior.

US federal elections are skewed in favor of a bipartisan system. And when people have to choose between only two candidates, they have no ability to weight on most topics. If the two big parties agree on deregulation, you have no opportunity to cast your vote on it. Sick democracy.

Re:dying democracy (2)

PPH (736903) | about a year ago | (#44859649)

politicians that run on a platform that includes deregulation and freeing the market of even modest restraints on bad behavior.

A condition of deregulation would be one without patents. Certainly not one promoted by corporate interests. For each issue, its always a matter of following the money to see whether the decision will be pro or anti regulation.

As long as one party routinely votes against the self interests of their own voters,

The party works for its financial supporters. Voters are a minor inconvenience in that they have to be manipulated to keep the party in power. In Soviet Russia, they used the term 'useful idiots' for such supporters of the cause.

Re:dying democracy (0)

Anonymous Coward | about a year ago | (#44859739)

The second amendment was written by a bunch of guys who had just recently taken a huge step towards solving that problem.

Re:dying democracy (1)

Charliemopps (1157495) | about a year ago | (#44859793)

If it (a patent) were held in perpetuity, it would lead to the opposite of the very principle on which it is based: it would lead, not to the earned reward of achievement, but to the unearned support of parasitism. It would become a cumulative lien on the production of unborn generations, which would ultimately paralyze them. Consider what would happen if, in producing an automobile, we had to pay royalties to the descendants of all the inventors involved, starting with the inventor of the wheel and on up. Apart from the impossibility of keeping such records, consider the accidental status of such descendants and the unreality of their unearned claims.

-- Ayn Rand

Just pointing out you don't know shit about the people you're bitching about. At least understand your opponents point of view before you start spouting off nonsense.

Re:dying democracy (1)

pagedout (1144309) | about a year ago | (#44859913)

You imply what we have now is "modest restraints". I have heard that just the federal regulations reached 175,000 pages this year. As long as we have a system so complex that even the brightest among us find it impossible to understand you will have abuses. I think we have spent the last 100 years proving the piling more and more regulations on people leads to nothing good.

As for the shouting down bit, what a joke. Try this type "conservatives shouting down" in Google and see what you get, now try "liberals shouting down". Kind of odd that both end up returning articles about liberals misbehaving isn't it? Personally, I would find some other phrase to peddle your ideology as this one is just humorous.

Re:dying democracy (1)

0111 1110 (518466) | about a year ago | (#44860653)

No, the reason why this isn't being fixed is that a significant number of voters vote for politicians that run on a platform that includes deregulation and freeing the market of even modest restraints on bad behavior.

Exactly. This is why we all need to vote Libertarian. So that the entire corrupted patent system can be shut down. Then we can get started on reducing copyrights to no more than 5 years. That was what you intended, right? Because of course patents are a government interference in the free market, right? Preventing competition is what it's all about.

patent is as patent does (1)

turkeydance (1266624) | about a year ago | (#44859443)

not original work. denied.

crazy (1)

Anonymous Coward | about a year ago | (#44859505)

One click is one of the most ridiculous because the cookie mechanism that it relies upon was put into the browser specifically for the purpose of enabling transactions that use an additional record in the database (e.g. containing payment and shipping info) without additional input from the user.

"Service economy" became "parasite economy" (5, Insightful)

oldhack (1037484) | about a year ago | (#44859517)

"Service economy" with IP fantasy led to this bullshit world for the West and other developed countries.

And it would. Bureaucratic, parasitic, loophole-exploiting endeavors like lawyering, bankering, lobbying are most rewarded.

The West is rotting from within.

Re:"Service economy" became "parasite economy" (0)

Anonymous Coward | about a year ago | (#44859905)

IANAB, but banking is actually useful. See that vast city all around you? How much of it do you think could have been built if everyone had to use their own money, and only their own money, all the time?

Re:"Service economy" became "parasite economy" (2)

0123456 (636235) | about a year ago | (#44860145)

By God, you're right! No-one could possibly lend money or invest without banks!

Article is a troll (-1)

Anonymous Coward | about a year ago | (#44859519)

Im sorry, but the article is not based on the truth, it must be a troll.

Hymen Lipman.

Really, you honestly think people are going to believe that there is a guy with the name of Hymen Lipman.

Its obviously made up by a Feminist.

Hyman Lipman. That is too funny to be true.

What?! (1)

denzacar (181829) | about a year ago | (#44859769)

Next thing we know you'll have issues with him putting a "rubber plug into the wood shaft".

Skewed perspective (5, Informative)

10101001 10101001 (732688) | about a year ago | (#44859533)

Oh where do I begin to describe the skewed perspective of this article. It seems clear the author had recently read the book "The Pencil" and thought they could write up a little tidbit about it with patents. But, when you start doing the math, it really falls through. The "invention" was created in 1858. The supreme court ruling about the patent came in 1875, nearly 20 years later (so at the point where the patent would have nearly expired anyways). Meanwhile, it's not really at all clear that the whole eraser-on-pencil really took off on its own. It sounds like, instead, some American companies liked the idea (perhaps to match parity with said investor, Joseph Reckendorfer) and started producing such pencils. Meanwhile, some 60+ years later and Europe still wasn't making such pencils (well, not commonly enough, anyways).

Oh, and the best part is the silly:

So does our pencil say something about us as a people? A writer for a 1922 issue of American Stationer and Office Outfitter thought so: “Throughout Europe, the rubber-tipped pencil is practically unknown,” they wrote. “It may be that foreigners consider themselves less apt to make mistakes than the happy-go-lucky Americans.”

Or it could be that, oh, Europeans were still using their separate erasers and perhaps snarkily mocking the Americans for throwing away tons of perfectly good erasers just for the convenience of having one glued to the end of their pencil. Meanwhile, the more honest truth is probably the more simple that European pencil manufacturers probably didn't think there much demand and the vast majority of people weren't going to pay a premium to import the stupid things In the end, wide scale adoption would have more to do with there being only a few manufacturers which made up the effective industry in the area and with a majority all deciding something, whatever it was, was a good enough idea and offering the X + Y product as either a replacement for X or as a premium version of X, wide side adoption basically inherently happened. But even today, plenty of places sell pencils without erasers. And there's separate eraser heads you can pull off and reuse until they're heavily wore out (although those are still mighty wasteful as usually the base is pretty unusable for erasing.

So, now with that, I can happily say my comment is about as much a rambling little conjecture as the article.

Re:Skewed perspective (1)

tlambert (566799) | about a year ago | (#44859591)

Oh where do I begin to describe the skewed perspective of this article. It seems clear the author had recently read the book "The Pencil" and thought they could write up a little tidbit about it with patents. But, when you start doing the math, it really falls through. The "invention" was created in 1858. The supreme court ruling about the patent came in 1875, nearly 20 years later (so at the point where the patent would have nearly expired anyways).

It was either expired (patent term was 14 years from date of filing), or within a year of expiring (an additional filing for a 7 year extension was permitted). No info as to whether an extension was filed for this guy. This is because it fell under the purview of the Patent Act of 1836.

Ironically, during the 1890 depression, and again during the great depression, people in general held a dim view of patents, as they more or less do today, so by that measure, are we in a depression?
http://en.wikipedia.org/wiki/History_of_United_States_patent_law#The_Sherman_Antitrust_Act [wikipedia.org]

Makes you wonder a bit...

Re:Skewed perspective (0)

Anonymous Coward | about a year ago | (#44860387)

It sound like the patent was sold because Faber was infringing on the patent and it took several years to work through the suit. Presumably if the patent has held up damages would have been awarded and the investment would have paid off.

Re:Skewed perspective (1)

Sarten-X (1102295) | about a year ago | (#44860255)

Sadly devoid of mod points, but I would like you to know I appreciate your perspective. Patent articles on Slashdot can be safely assumed to be trolling. There's a critical mass of patent-haters on the site that ensures every story casting patents in a negative light gets promoted to the front page, with no concern for relevance or factual accuracy.

  • Yes, patents are hard to read now. We've spent the last few centuries moving away from the idea that laws were general guidelines (with specific appeals to be passed up to the nobles or kings), toward a system ruled by laws, where the written legislation ideally covers every case and prescribes judgement. This means patents are inherently detailed and specific, and stuffed full of "legalese" - plugging all of the loopholes that 300 years of smart lawyers have poked.
  • Yes, patents are often granted for simple concepts that seem obvious in hindsight. They don't protect the idea of "add A to B", but rather cover the details of the invention that make it work (or work better). Gluing rubber to a pencil may not meet the needs for a patent, but attaching it with a metal ferrule just might.
  • Yes, patents are used offensively. This is bad, about equally as bad as using someone else's research to harm them. This is why it goes to a court to decide whether such infringement is illegal. What's particularly bad is that damages are based on the owner's perceived value of the patent, rather than actual economic harm.
  • Yes, software patents are algorithms, and algorithms are math, and math is a fundamental law of the universe that is explicitly not patentable. Then again, so is physics, and mechanical engineering, and chemistry. Of all fields, computer science and genetics are practically the only ones developed after the general realization that everything boils down to basic universal laws - so it's no surprise that those are the contested fields.

None of this means that patents are inherently bad, or that some patents are naturally better than others by virtue of being in an older field, or that patents in general are weapons of economic destruction controlled by The Man. Rather, patents are a legal protection for an inventor. Instead of mocking patents with poor strawman examples, we should be debating how to apply that protection fairly (not necessarily equally) to encourage both research and sharing.

Aw, who am I kidding? This is Slashdot! Let the flamewars commence!

Rhetoric (1)

Chemisor (97276) | about a year ago | (#44859575)

In this modern day do patents promote innovation, or simply protect firms from competition?

Don't you just love rhetorical questions?

Re:Rhetoric (1)

kumanopuusan (698669) | about a year ago | (#44860803)

Don't you just love rhetorical questions?

No, why?

The USA grew (1)

Anonymous Coward | about a year ago | (#44859581)

The pencil-eraser patent sounds pretty innovative to me, I don't see why it should have been struck down, but for one teensy little fact: American industry, up until about 1900, was 80% based on the wholesale ripping off of European technology. Weak patent protections were not only the norm, they were the basis for development.

Sometime around Henry Ford's time, that changed and America became a net exporter of technology. About the same time, it started expanding and strengthening protection of "intellectual property". That's not a coincidence.

The sooner you rid yourself of the idea that this has anything to do with "fairness" or "consistency", the sooner it will make sense. What drives changes in law is changes in the economy. Always.

Re:The USA grew (1)

AHuxley (892839) | about a year ago | (#44859803)

Yes AC, WW2 offered another bounce, so did the cold war exports and build ups, small wars.
Every year the rest of the world is catching up, getting cheaper, more skilled.

Strategic Warfare (5, Insightful)

Somebody Is Using My (985418) | about a year ago | (#44859583)

The shift in policy is an intentional, if unwritten, strategy intended to keep America a competitive force in the world's economy.

In the past, America's power was based on its vast, untapped resources; steel, oil, cotton, grain, whatever - we had it and could rip it out of the ground cheaply. We sold these resources to the world and became rich. But these days other developing nations are willing to sell their resources far beyond what we can afford, and we can no longer depend on those resources as the primary engine of our economy.

Later, America's strength came from its industry; our factories produced high-quality goods in vast quantities. And we became rich again (well, even richer). But today, we've sold the technology to poorer nations, and their citizens are willing to work for wages that would starve our own people. So America can no longer depend on its industry to sustain it.

So instead, we've turned to our ingenuity and inventiveness as a way to ensure our dominance; our patents, our copyrights, our trademarks. We've hitched our wagon to the idea that our "intellectual property" will keep us a prominent force on the world stage. Of course, an idea is worthless unless somebody is willing to put it to use (the greatest movie in the world won't bring in a cent unless you get people to pay you to watch it). So we make all our ideas available to the world... for a price. And we have greatly bolstered our laws - and made clear our willingness to use force to defend those laws - to ensure that OUR ideas are not used without our receiving adequate recompense.

Except great ideas - the ones that bring in great wads of cash - are difficult to come by (Sturgeon's Law applies with ideas too) and while inspiration can be encouraged, it cannot be forced. So rather than depend on those rare strokes of genius, we ensure that even our less-stellar conceptions are protected the same way as the truly inspired ideas. Patents are increasingly granted on the most insignificant, inconsequential and mundane ideas because it brings in the money.

This is not to say there is some overreaching planned conspiracy; there was never a shadowy group of power-brokers chortling in some dark room as they moved the nation onto this new path. But America has always followed the path of money, and right now the big money is in intellectual property. Keeping its businesses strong makes strategic sense. Thus, we see an increased strengthening of certain laws (or weakening of others) to protect the interests of those businesses.

That's why there is little incentive to revamp the patent system, or bring copyright back down to sensible terms. It's why the American government is pushing so hard to enforce its copyright laws in other countries. It's why there is such a concern about copyright violations and why the Internet scares the people in power so much. American hegemony, they believe, is directly tied to how much intellectual property it owns, and how well it is protected.

Re:Strategic Warfare (2)

whoever57 (658626) | about a year ago | (#44859707)

The shift in policy is an intentional, if unwritten, strategy intended to keep America a competitive force in the world's economy.

That may have been thhe original intent, but both technology and money have caused it to fail at its intent.

Patents put US-based web/cloud services at a disadvantage.

The effect of many patents is to prevent competition, not to stimulate innovation. In other words, the effect is to concentrate wealth. Money and power have brought about this subversion.

I would like someone to explain why it is illegal to build a product without a license that is patented in the US ,if the product is to be exported to a country where the product is not patented? There is no possible advantage to the US economy from this.

Re:Strategic Warfare (0)

Anonymous Coward | about a year ago | (#44859933)

I would like someone to explain why it is illegal to build a product without a license that is patented in the US ,if the product is to be exported to a country where the product is not patented? There is no possible advantage to the US economy from this.

Sure there is ... and you cite it plainly ... why would we teach a man to fish, when all that will result is that he will not buy fish from us, and may steal our jobs by selling his fish to us ? Better to forbid the teaching of fishing to anyone who doesn't agree to abide by the rules of the existing power base. Sort of like learning to read was once restricted to those who agreed to further the needs of the Church.

Re:Strategic Warfare (0)

Anonymous Coward | about a year ago | (#44859919)

Sadly, you appear to have no idea whatsoever how the USA became the world's richest country. I suggest you look it up, and you will find that exports formed a remarkalby small part of american GDP for most of the time the USA was really, really rich.

Re:Strategic Warfare (0)

Anonymous Coward | about a year ago | (#44860781)

Wood, mostly. By far the biggest export of the British colonies was lumber.

AC

Joseph Reckendorfer - A Patent Troll? (1)

gruenz (613879) | about a year ago | (#44859671)

Wouldn't the story make Joseph Reckendorfer (the investor who bought the patent for $100,000 and then couldn't use it) a classical patent troll - only stopped by the Supreme Court? :-) Or would modern patent trolls be simply investors like Joseph?

Two clicks to submit this. (1)

Impy the Impiuos Imp (442658) | about a year ago | (#44859695)

Amazon's 1-click patent is a bad example of bad patents (for the reasons it is talked about, anyway.)

Programmers used to write editors and other software and not even bother asking you if you wanted to save before quitting. People realized this was stupid, and started putting up confirmation questions for every damned thing. It was so pervasive, computer science even introduced the concept of "appliance models", where when you changed options, the change was immediate, as if you were adjusting the volume on a radio, no "set" or "Are you really sure you want to change the value?" stuff.

As a programmer who lived through this time, it was absolutely inconceivable you would build a system to sell something and have it just sell-and-ship with no confirmation, no "Are you sure you want to actually buy this book, you're gonna be charged real money!"

There may be other reasons it's a bad patent (it's ridiculously simple to implement, and in a sense, is to buying "the appliance model", which the real world at the store is. The cashier doesn't ask you, "Are you sure you want to buy this stuff? Gonna charge your card!"

But 1-click sales via computer were decidedly not an obvious thing until after it was done .

Re:Two clicks to submit this. (0)

Anonymous Coward | about a year ago | (#44859741)

But 1-click sales via computer were decidedly not an obvious thing until after it was done .

Bullshit.

Buy or cancel in real life (1)

tepples (727027) | about a year ago | (#44859911)

The cashier doesn't ask you, "Are you sure you want to buy this stuff? Gonna charge your card!"

Every time I go to Walmart, the cashier asks me to swipe my card. If I don't swipe, the transaction is canceled.

Re:Two clicks to submit this. (2)

phantomfive (622387) | about a year ago | (#44860119)

As a programmer who lived through that era, it was an obvious thing to do. The only question is whether you'd want to do it, and that is what you address. You fully admit that you could have done it if you wanted to.

You can't patent something because you're the first person who wants to do it. It has to be non-obvious. At least in theory.

Y'know, one of these days... (0)

Anonymous Coward | about a year ago | (#44859697)

... people will realize it's not about inventions, nor protecting investments (an absurd "de per se")... it's not even about firms or corporations. Everyone will see it's about countries and technology domination.

On that moment, things will scale from "Open Invention" to an international association of countries to form a huge pool of patents -- possibly affiliated with the UN.

On that day, maybe clever people from all parts of Earth might have a good chance at inventing things _and_ have peace of life.

NO on one, YES on two (0)

Anonymous Coward | about a year ago | (#44859795)

The current national and international patent systems serve to protect companies from innovations both 'in, i.e. within the company' and 'out, i.e. outside threats from other companies innovations.'

Knowlage (0)

Anonymous Coward | about a year ago | (#44859837)

The Internet has given access to knowledge to those who would know how to use it. Gone are the days that a person, or persons, with power and money, could simply say, "Nope, sorry, we don't care." Instead, they found another way to keep people from innovating against their innovations: a government inundated and swamped with patents that few of those granting them understand the little nobility of them, due to a false overwhelming of the understanding of the technology behind said patents.

In short: educate the government officers on technology, and you'll see all these "innovative" things go away.

But who's to say that people are going to stop innovating anyway? We are, afterall, "arrogant" Americans.

Can't believe nobody's posted this yet (1)

Nimey (114278) | about a year ago | (#44859939)

How appropriate is it that a guy named Hymen invented something with a phallic shape?

Raise your hands (0)

Anonymous Coward | about a year ago | (#44859943)

If you think the current patent system is a good thing. Just post a reply to this message.

Re:Raise your hands (1)

2fuf (993808) | about a year ago | (#44860027)

I think the current patent system is not a good thing. Singularity achieved, bitches!

Easy: Incentives (3, Interesting)

dcollins (135727) | about a year ago | (#44859961)

In 1990, the "everything runs better as a free market" doctrine wiped out government funding of the patent office, declaring that it would be fully funded by applicant fees from then on. (In fact, since that time Congress withholds some percentage of payments, so it's even more under-funded.) So the office doesn't work as a filter to defend a precious monopoly right, instead it's incentivized to make as many applicants happy as possible, since that's where all their money comes from. Result is a tidal wave of poorly examined patents that no one has time or resources to take court. (And yet: also an enormous and growing backlog of yet-unexamined patents). Pretty similar to how they've bent over the U.S. Post Office.

Step 1: Defund core government agency, Step 2: Complain about how government doesn't work, Step 3: Profit (for some private allied company).

http://thomas.loc.gov/cgi-bin/cpquery/?&sid=cp109OaGul&r_n=hr372.109&dbname=cp109&&sel=TOC_11043& [loc.gov]

Re:Easy: Incentives (3, Insightful)

the eric conspiracy (20178) | about a year ago | (#44860107)

The reason we have such crap patents right now is the bumbling fumbling stumbling Congress.

In 1982, in order to address various problems with the patent rulings being inconsistent they established the US Court of Appeals for the Federal Circuit.

This court is a Frankenstein's monster. It has created a whole new body of law by allowing such insanity as business process patents. This law has created an atmosphere so favorable to applicants and their assigns that every life-form that can croak out an 'idea' in front of a patent attorney has a chance to become an inventor.

Of course the result of this is the patent office is deluged with applications. THE HAVE NO CHANCE to process all these applications in a moderate fashion. So they are forced to take the attitude 'approve the application and let the Courts sort it out'.

That only encourages the greedy to make more garbage applications.

The Patent Office fee system was a clumsy and ineffective attempt to apply brakes to this runaway train by increasing the cost of applying and maintaining patents. You might as well try to piss upwind into a hurricane.

Right now the US Patent System is a great hindrance to innovation and economic growth in America. Will it get fixed? There is a good chance it will, because stuff like patent trolling is hurting even the big companies.

Re:Easy: Incentives (1)

dcollins (135727) | about a year ago | (#44860609)

More good information, thank you.

wowww (1)

2fuf (993808) | about a year ago | (#44860023)

HYMEN LIPman put a rubber PLUG into the WOOD SHAFT of a PENCIL.

Re:wowww (1)

2fuf (993808) | about a year ago | (#44860041)

and RUBBER for that matter

That's kinda the point of patents... (1)

necrostopheles (865577) | about a year ago | (#44860151)

... to promote innovation by giving the patent-holder a legal monopoly for a limited period of time which effectively protects firms with patents from competition.

Now imagine.... (1)

hawkingradiation (1526209) | about a year ago | (#44860349)

...if he had invented a pencil eraser over the Internet

Physical patents are different (0)

Anonymous Coward | about a year ago | (#44860711)

If you patent a better mousetrap, nobody can make and sell that mousetrap design without paying you royalties. But they are still free to conceive of a better mousetrap and then patent their new and different design.

If you patent a "Computer Method," nobody can ever do that same "Computer Method" thing in any way shape, or form, such that it does the same thing. Computer patents cover the entire concept, such that nobody is free to come up with a different way of doing the same thing. The computer patent covers the entire act of trapping a mouse, not how you do it, or what methods you use to do it. The mere act of replicating the goal of the original design is illegal.

This is whats wrong with patent law.

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