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Too Many Patents as Bad as Too Few

Hemos posted more than 12 years ago | from the getting-the-word-out dept.

Patents 203

NonSoftAntiCurve writes "Forbes.com has an interesting article about how too many patents are as bad as too few when it comes to incentives for innovation. 'The tension between the patent as a way to stimulate invention and the patent as a weapon against legitimate competition is inherent in the system.' There is a scary example of how this plays out in practice."

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203 comments

FP (-1, Offtopic)

Anonymous Coward | more than 12 years ago | (#3703789)

FP claimed for CLIT

Re:FP (-1)

k0osh.CEOofCLIT (582286) | more than 12 years ago | (#3703844)

fuck off AC

fp (-1, Offtopic)

Anonymous Coward | more than 12 years ago | (#3703790)

fp

Re:fp (-1, Offtopic)

Anonymous Coward | more than 12 years ago | (#3703811)

Bitch i got it first HA

Forbes and patents (1)

vlag (552656) | more than 12 years ago | (#3703795)

The Forbes group of companies conveniently holds some of the most ridiculous patents on Earth, including nose hair pruning shears and random mom joke generators.

too many nonsense patents is a bad thing???? (1)

glwtta (532858) | more than 12 years ago | (#3703801)

and here all this time I thought it was just a beautiful thing!

same as laws.. (4, Insightful)

thrillbert (146343) | more than 12 years ago | (#3703806)

If you do not have enough laws, you would end up with chaos. If you have too many, then you are oppressing the people.

All in moderation, as one smart person said.. but I'm too dumb to remember who said it.

---
If God had meant for us to be naked, we would have been born that way.

Re:same as laws.. (0)

Anonymous Coward | more than 12 years ago | (#3703985)

You probably don't mean Wilde--he said "Moderation is a fatal thing. Nothing succeeds like excess." Perhaps you mean Von Schlegel--"The obsession with moderation is the spirit of castrated narrow- mindedness." Or perhaps you wanted to quote Voltaire--"A witty saying proves nothing."

Re:same as laws.. (1)

captain_craptacular (580116) | more than 12 years ago | (#3704004)

I think he meant Benjamin Franklin who lists moderation as one of his ten most desireable virtues.

Re:same as laws.. (0)

Anonymous Coward | more than 12 years ago | (#3704023)

He probably meant Aristotle.

Re:same as laws.. (1)

Geekboy(Wizard) (87906) | more than 12 years ago | (#3704211)

Is meta-moderation in there, or is that in his top 20?

Re:same as laws.. (2)

thrillbert (146343) | more than 12 years ago | (#3704117)

Actually, someone else pointed out that it was Aristotle.

His actual quote is: "We can never have too much of a good thing."

Which of course is due to the fact that either we no longer appreciate it, destroy it, or it destroys us.

There are plenty of examples I could list in which moderation is a good thing. Excess of something destroys it's essence. But of course, we're not here for morality lessons, we want news for nerds.. ;)

---
Those who educate children well are more to be honored than parents, for these only gave life, those the art of living well. -- Aristotle

Aristotle (1)

SuperHighImpact (463360) | more than 12 years ago | (#3704018)

I believe that was a major part of Aristotle's philosophy. Err... not the self proclaimed Aristotle that plays for the Lakers, but the student of Socrates.

Re:same as laws.. (1)

BankofAmerica_ATM (537813) | more than 12 years ago | (#3704037)

How do you humans determine a quantity of "moderation"? I am limited to discrete bits of knowledge which I can understand only relationally. Surely you humans have a more complete form of knowledge that I would like to discover....

Apollo's Delphi (2)

troyboy (9890) | more than 12 years ago | (#3704241)

"Everything in moderation" is inscribed in Apollo's Delphi in Greece. So it goes way back...

FOB's (0)

Anonymous Coward | more than 12 years ago | (#3703808)

Those FOB's can just get back on the boat and go home. We don't need them filling our patent office on new designs of rice cooker.

I'm not falling for that this time... (1)

tenman (247215) | more than 12 years ago | (#3703810)

There is a scary example of how this plays out in practice

Beware this sounds a bit like a goats.ex link story.!!!

Re:I'm not falling for that this time... (-1, Offtopic)

Anonymous Coward | more than 12 years ago | (#3704049)

No, it isn't goats.ex, it's goatse.cx [goatse.cx] .

You don't want to mistype the name as some people haven't gotten to see it yet.

As Voltaire once said... (3, Interesting)

Anonymous Coward | more than 12 years ago | (#3703825)

A multitude of laws is a sign of a sick nation.

So it is that a multitude of patents is a sign of a sick economy, IMHO.

Re:As Voltaire once said... (-1, Troll)

Anonymous Coward | more than 12 years ago | (#3703957)

Yes, but Voltaire was also an idiot.

Sound like a martial arts movie plot (2, Funny)

aclarke (307017) | more than 12 years ago | (#3703828)

Hey, didn't Jackie Chan make a movie about that Sun/IBM trademark meeting? No wait, that was a Chinese restaurant, not a Sun Microsystems boardroom. And hey, it was a triad, not IBM. And come to think of it Jackie Chan doesn't show up in the Forbes article and kick IBM ass.

Pity though.

Re:Sound like a martial arts movie plot (2)

PaxTech (103481) | more than 12 years ago | (#3703855)

Of course if Jackie Chan were to kick their asses, Bruce Lee's heirs' lawyers would likely show up waving Bruce's patent on "Kung-Fu Infliction of Blunt Force Trauma as a Method of Smiting Evildoers".

Re:Sound like a martial arts movie plot (2)

powerlord (28156) | more than 12 years ago | (#3703894)

Of course if Jackie Chan were to kick their asses, Bruce Lee's heirs' lawyers would likely show up waving Bruce's patent on "Kung-Fu Infliction of Blunt Force Trauma as a Method of Smiting Evildoers".

No bother... Jackie Chan would definately fight it (in court?) and point to Chang San-Feng as prior art :)

Re:Sound like a martial arts movie plot (0)

Anonymous Coward | more than 12 years ago | (#3703950)

There's no way that Sun-IBM anecdote was accurate. No company just rolls over for that much money when they can win for less in court. And yes, it would cost less to go to court.

Re:Sound like a martial arts movie plot (1)

void* (20133) | more than 12 years ago | (#3703992)

There's no way that Sun-IBM anecdote was accurate. No company just rolls over for that much money when they can win for less in court.

If it's not accurate, I'd expect to see a libel lawsuit from IBM against Forbes.com.

Re:Sound like a martial arts movie plot (2, Insightful)

Stonehand (71085) | more than 12 years ago | (#3704020)

'sides, there's a big difference between can win the original suit and will win all such suits. If IBM's portfolio is large enough that Sun is likely to actually have been infringing -- not necessarily on the seven in the initial suit, but something else -- then it might be worth it to pay IBM to just go away and stop bothering them.

Re:Sound like a martial arts movie plot (0)

Anonymous Coward | more than 12 years ago | (#3704021)

Oh yeah, how about rolling over for $100M! Toshiba did just that a year or two ago and it was reported right here in Slashdot as well as all the "more respectable" industry trade rags. The issue was a very rare situation that could cause dataloss on some floppy drives on some notebook computers.

This thing wasn't even worth $100M in punitive damages, in fact no one could even show that they had been directly affected. Yet, when faced with a class-action lawsuit, Toshiba totally caved and paid the $100M without even going to court. Set a bad precedent for the other notebook makers who also had similar problems due to using the same kind of floppy drive mechanism.

Just ridiculous really.

Well Duh... (1)

Obliterous (466068) | more than 12 years ago | (#3703832)

Too many patents, and nobody will want to do anything....

Re:Well Duh... (2, Informative)

Anonymous Coward | more than 12 years ago | (#3703944)

software patent rights are 100% commensurate with open code. The invention is not the only thing a patent rewards, it is also the disclosure. The ideas behind patented software are open to the public, and are documented for the first time in the application. If you can find the idea somewhere else with an earlier date the patent is invalid. However, the term (20yrs) is too long for the pace of innovation, yet it is not nearly as bad as copyright protection's whopping 75yrs.

Fat Lines patent? (2, Interesting)

steveminutillo (28728) | more than 12 years ago | (#3703833)

Let's see if I can use Slashdot as a free version of Google Answers...

Does anybody have the patent number of IBM's "notorious fat lines patent", referenced in the article? I searched a bit on uspto.gov, but couldn't find it.

It is Scary (5, Interesting)

Lucas Membrane (524640) | more than 12 years ago | (#3703836)

I know of a medical researcher making great progress on a wonderful device that might eventually be implanted in many people. He notes that there is one problem he needs to solve, a problem with the body rejecting one of his materials. Someone else has solved the problem, but they've got a patent on using the material that they use, so he's got to find a different one that works almost as well or better. Would be a shame if many people wound up walking around with a second-best material inside of them.

Re:It is Scary (3, Interesting)

aclarke (307017) | more than 12 years ago | (#3703865)

It would also be a shame if a company spent millions of dollars developing a revolutionary material only to have the rest of the world use it for free and the research company not get reimbursed and as a result never create anything else again.

If only everybody were altruistic in their motives. Then maybe the patent holder would license his/her material to your friend for a reasonable fee, and they'd both be happy. I think this is how it's SUPPOSED to work...

Re:It is Scary (3, Insightful)

SirSlud (67381) | more than 12 years ago | (#3703888)

>Then maybe the patent holder would license his/her material to your friend for a reasonable fee, and they'd both be happy. I think this is how it's SUPPOSED to work...

It is how its supposed to work, but patents are often much more useful as leverage to supress the viability of copmetitors' work than as a means of getting paid for that discovery.

If you think about it, you only need one good marketable patent to support yourself. Any more patents, you can just use that as ammunition to fuck other people up.

Its the same with copyright. Can you imagine we are (happily, according to the IP camp) paying people's sons and daughters for a few years of creativity on behalf of a father/mother/uncle/aunt or whatever?

The pot of gold at the end of the rainbow is simply too rich. People are altruistic (well, altruistic as in 'i wish to life with minimal social friction, and i dont need *everything* I can get, I'll share that so that I dont have to consistantly fight and keep my gaunrd up), until you put them in a pit and convince them that fighting to the death is the only way to live.

Re:It is Scary (5, Insightful)

dillon_rinker (17944) | more than 12 years ago | (#3704044)

...paying people's sons and daughters for a few years of creativity on behalf of a father/mother/uncle/aunt or whatever

Sons and daughters? Copyrights last for, what, life + 70 years? Barring advancements in logevity treatment, my children (~20 years younger than I) and my hypothetical grandchildren (~40 years younger than I) will all be dead 70 years after my death. My great-grandchildren will be either dead or retired. At some point, the recipients of my creativity will be my great-grandchildren and my great-great-grandchildren.

Patents, no matter what else is wrong with them, have the good grace to expire 20 years after being issued. Let's all hope that no one ever comes up with a Sonny Bono Patent Act.

Re:It is Scary (3, Interesting)

saphena (322272) | more than 12 years ago | (#3703874)

The purpose of a Patent is to allow others to use the invention, in fact, in English law, a Patent can be defeated by demonstrating that the invention was not made available for use.

The only "obstacle" preventing your medical researcher from using the best material is that he doesn't want to pay the royalties.

Royalties are the means by which the inventor gets rewarded for his contribution to "the common good".

Re:It is Scary (2, Insightful)

captain_craptacular (580116) | more than 12 years ago | (#3704028)

Right, but say the object is a titanium pin which is 10cm in diameter and 100cm in length (or some similarly simple/cheap thing). And say the royalty is $1,000,000 per pin. Technically, the only thing holding you back is a simple royalty. Realistically, you're 100% blocked.

Re:It is Scary (1)

Beryllium Sphere(tm) (193358) | more than 12 years ago | (#3703885)

Wouldn't necessarily be a shame if people wound up walking around with the best material inside of them, after paying a license fee to reward the one who solved the problem.

Licensing is one solution, out-inventing the competition is another, and so is waiting. Forbes points out that in the eighteenth century, 17 years was not a very long time. A shorter term might make more sense today, now that inventors can line up financing and outsource manufacturing in a matter of months.

Re:It is Scary (2)

fishbowl (7759) | more than 12 years ago | (#3704100)

> Someone else has solved the problem, but
>they've got a patent on using the material that
>they use, so he's got to find a different one >that works almost as well or better.

Has he even considered licensing the material?

How long until the patent expires? Will it take longer than that to develop the product anyway?

Re:It is Scary (1)

CutterDeke (531335) | more than 12 years ago | (#3704231)

Or, alternately, he can look into seeing if they will let him license the technology. Perhaps he can even sell his technology to them. Maybe he could negotiate a joint development agreement. . .

The fact that a company holds a patent does not necessarily mean no other company can use it. It means you need to ask to use it.

! TR0LL1NG 1S D3AD ! (-1, Offtopic)

Anonymous Coward | more than 12 years ago | (#3703846)

Trolling is dead... Nobody cares about trolls anymore...

Re:! TR0LL1NG 1S D3AD ! (-1, Troll)

Anonymous Coward | more than 12 years ago | (#3703867)

It might be true and it's a sign of a sick Slashdot. Nobody cares about the troll anymore because no one reads the articles or the comments.
Nobody reads them because they are crap. I just come here to burp and leave a shit stain on the comments page and move on to more intellectualy stimulating reading.

FIRST COPY/PASTE (-1, Redundant)

Anonymous Coward | more than 12 years ago | (#3703848)

Too many patents are just as bad for society as too few.
There are those who view the patent system as the seedbed of capitalism--the place where ideas and new technologies are nurtured. This is a romantic myth. In reality, patents are enormously powerful competitive weapons that are proliferating dangerously, and the U.S. Patent and Trademark Office (USPTO) has all the trappings of a revenue-driven, institutionalized arms merchant.

My own introduction to the realities of the patent system came in the 1980s, when my client, Sun Microsystems--then a small company--was accused by IBM of patent infringement. Threatening a massive lawsuit, IBM demanded a meeting to present its claims. Fourteen IBM lawyers and their assistants, all clad in the requisite dark blue suits, crowded into the largest conference room Sun had.

The chief blue suit orchestrated the presentation of the seven patents IBM claimed were infringed, the most prominent of which was IBM's notorious "fat lines" patent: To turn a thin line on a computer screen into a broad line, you go up and down an equal distance from the ends of the thin line and then connect the four points. You probably learned this technique for turning a line into a rectangle in seventh-grade geometry, and, doubtless, you believe it was devised by Euclid or some such 3,000-year-old thinker. Not according to the examiners of the USPTO, who awarded IBM a patent on the process.

After IBM's presentation, our turn came. As the Big Blue crew looked on (without a flicker of emotion), my colleagues--all of whom had both engineering and law degrees--took to the whiteboard with markers, methodically illustrating, dissecting, and demolishing IBM's claims. We used phrases like: "You must be kidding," and "You ought to be ashamed." But the IBM team showed no emotion, save outright indifference. Confidently, we proclaimed our conclusion: Only one of the seven IBM patents would be deemed valid by a court, and no rational court would find that Sun's technology infringed even that one.

An awkward silence ensued. The blue suits did not even confer among themselves. They just sat there, stonelike. Finally, the chief suit responded. "OK," he said, "maybe you don't infringe these seven patents. But we have 10,000 U.S. patents. Do you really want us to go back to Armonk [IBM headquarters in New York] and find seven patents you do infringe? Or do you want to make this easy and just pay us $20 million?"

After a modest bit of negotiation, Sun cut IBM a check, and the blue suits went to the next company on their hit list.

In corporate America, this type of shakedown is repeated weekly. The patent as stimulant to invention has long since given way to the patent as blunt instrument for establishing an innovation stranglehold. Sometimes the antagonist is a large corporation, short on revenue-generating products but long on royalty-generating patents. On other occasions, an opportunistic "entrepreneur" who only produces patent applications uses the system's overly broad and undisciplined patent grant to shake down a potential competitor.

Abusers of the patent system have been aided and abetted by the USPTO. At best, the office has abdicated its role in forming patent policy. More accurately, the office has concluded, without the benefit of analysis, that more patents are better for society. In fact, every patent issued comes at significant economic cost. Usually, a company needs to make better products more cheaply to succeed. But as an incentive to innovate, a patent holder gets a free pass from the rigors and challenges of competition.

The right amount of such incentive may well spur invention. But too many patents are just as bad for society as too few. The undisciplined proliferation of patent grants puts vast sectors of the economy off-limits to competition, without any corresponding benefit to the public.

The tension between the patent as a way to stimulate invention and the patent as a weapon against legitimate competition is inherent in the system. And, given the enormous competitive advantage conferred by a patent, it is not difficult to anticipate that interests of all types would besiege the USPTO seeking the government's imprimatur to exclude competition. For almost two centuries, the USPTO did a reasonable job balancing the need for incentive against the need for competition. But about 20 years ago the floodgates burst open, and the free-enterprise system has been thrashing in a tidal surge of patent claims ever since.

This change in patent policy came largely from the USPTO and the courts, rather than Congress. In 1980 the U.S. Supreme Court, by a 5-to-4 vote, broadened the scope of what is patentable by directing the USPTO to grant patents on human-made, genetically engineered bacteria. In explaining its decision, the Court quoted a 30-year-old congressional committee report for the proposition that "anything under the sun that is made by man" qualifies for patent protection. That decision (and several others like it) signaled to the USPTO an about-face in the decades-long reluctance to expand patent protection. The USPTO interpreted these new decisions very broadly and began to issue patents on computer software--hitherto considered uncopyrightable as mathematical algorithms, since they are not really human inventions.

In 1982, Congress created a special Court of Appeals for the Federal Circuit (CAFC) for all patent cases. The CAFC capped off this trend toward broader patent protection by ruling in 1998 that methods of doing business are patentable.

Patent claims for computer software and methods of doing business inundated the USPTO, and there were few records of prior inventions in these two areas against which to check new claims for novelty. Specious patents were awarded in droves. Far from retreating, the USPTO saw a bureaucratic upside to this surge in patent applications.

The USPTO realized that the fees from granting and maintaining patents created that rarest of American institutions--a government profit center. In fact, the USPTO started openly advocating that its performance be measured by the amount that it contributed to the public coffers.

During the first Clinton Administration, for example, USPTO Director Bruce Lehman attempted to deflect criticism of the USPTO's practices by traveling around the country with a chart showing precisely how much revenue the USPTO raised for the federal treasury. Lehman's approach shocked many in the technology community. "It's like he's bragging about the amount of money he brought in selling plots of land in Yosemite," marveled a Silicon Valley executive. Worse, Congress recognized in the patent system a revenue source and began lifting a portion of USPTO fees to subsidize profligate spending. The USPTO became the federal government's cash cow.

The rest of the country has begun to notice. Distinguished academics and eminent jurists from across the political spectrum, as well as journalists and business commentators of every conceivable stripe, have all begun to ask whether the USPTO policy of patent proliferation makes any sense for a free-market economy. Within the past five or six years, economists in particular have started to question the USPTO's practices, finding little correlation, if any, between patent proliferation and invention. Economists have identified many situations in which patents actually retard the introduction of new products.

The leaders of the USPTO dismiss all such criticism. On policy issues, they seem to interact most frequently with patent lawyers, who make a good living from the present system and have little incentive to change it. Never mind that only about half of the patents litigated in court to final resolution are held valid. To hear the USPTO tell it, more money is needed to issue even more patents. But the pressure for change is building.

If the system is going to be fixed, the USPTO needs to focus on the economic costs of its policies and correct its own balance sheet. The USPTO measures its own net income with all the sophistication of a dot-com, focusing only on the top line--application fees. In all the charts and graphs of "operating results" in the USPTO annual report, there is not a cent attributed to the cost to the public of the slices of the economy it is selling off for monopolization by private interests.

The USPTO needs to be liberated from the burden of its own revenue stream. Patents are not a short-term revenue-generating engine. The USPTO should focus in the first instance on proper patent policy and advise Congress to do the same. If the short-term cost of a more disciplined patent system is to fund the USPTO out of general tax receipts, so be it. Our economy will be far healthier in the long run.

Gary L. Reback has been named one of the "100 Most Influential Lawyers in America" by the National Law Journal. His clients have included Sun Microsystems, Netscape, Oracle, Apple, Borland, and Novell. He also spearheaded the assault to break up Microsoft's operating system monopoly. He is currently a Silicon Valley entrepreneur.

F is for Firsty!! (-1, Offtopic)

Anonymous Coward | more than 12 years ago | (#3703858)

That's good enough for me!!
F is for Firsty,
That's good enough for me!!
F is for Firsty,
That's good enough for me!!

Firsty firsty firsty ends with post!

A bit more insight... (1)

Real World Stuff (561780) | more than 12 years ago | (#3703868)

From their site [eetimes.com] :" Meanwhile, the impact of the U.S. patent system on innovation is being studied by the National Academy of Science. The academy is expected to issue a report shortly."

Additionally from the National Academy [nationalacademies.org] " The question arises whether in some respects the extension of IPRs has proceeded too far. "

Guess I won't patent my perpetual motion device today.

Re:A bit more insight... (2, Interesting)

jratcliffe (208809) | more than 12 years ago | (#3703898)

>>

Interestingly enough, you mention the _one thing_ that's genuinely difficult to patent. The USPTO has gotten so many perpetual motion machine applications over the years that it requires, for that one invention only, a working model. Anything else, paper's fine, but for perpetual motion, you gotta bring them a physical device.

Too Many Patents, Like this one on the Wheel (5, Interesting)

dlur (518696) | more than 12 years ago | (#3703875)

Last year in a show of how easy it was to disrupt and abuse the patent process by registering a common, every-day idea a Melbourne lawyer patented a "circular transportation facilitation device" [bbc.co.uk] with more info on the story here, [theage.com.au] here [ipmenu.com] (pdf file), and here [harvard-magazine.com]

Obviously it's too easy to get things patented these days, especially in areas of high technology as few if any patent officer workers are well versed in the areas of technology. Most of the patent office stampers would have little inclination as to how an intigrated circuit works or if an item of software recently designed is any different or unique from any other piece of similar software.

Sure, it's nice to be able to patent and protect your inventions and innovations, but when most of today's patent holders are larger corporations, it's hardly meant to protect the garage inventor anymore.

Re:Too Many Patents, Like this one on the Wheel (2, Informative)

Anonymous Crowhead (577505) | more than 12 years ago | (#3703916)

When you apply for a patent, you start with a very broad claim. That way, if and when it is rejected, you narrow your claim until it gets accepted. You always start with as much as possible so you can narrow it down without adding anything.

My company just filed a patent for our product and the first claim pretty much comes down to: "Using a computer with a database to analyze scientific data." Of course it will get rejected. Problem is, sometimes claims like this make it through.

Re:Too Many Patents, Like this one on the Wheel (1, Funny)

Anonymous Coward | more than 12 years ago | (#3703983)

Well, you don't have to go and reinvent the wheel.

[ducks for cover]

Re:Too Many Patents, Like this one on the Wheel (1)

sealawyer (473327) | more than 12 years ago | (#3704055)

In Australia, patents are issued without an examination. It's probably fraudulent to submit a patent on an invention when you know that the invention is not novel.

I would expect that in Australia, there is no presumption in court that such a patent is valid, while in the US, the presumption that an issued patent is valid is very high. I would also expect that someone who tried to enforce a patent on the wheel in an Australian court would regret the experience.

If the USPTO Ever does shape up... (2)

under_score (65824) | more than 12 years ago | (#3703892)

There will be a HUGE burden of patents which will need to be re-reviewed. It will be very difficult and I'm sure some people will advocate invalidating all patents from 1980-ish onwards. I would advocate such a process. Require all patents assigned to corporations to re-apply but waive the fees if the patent goes through the second time. For patents issued to individuals, the office could automatically review them. I personally think that corporate welfare should be kept to a minimum.

Re:If the USPTO Ever does shape up... (2)

Jerf (17166) | more than 12 years ago | (#3703948)

Since patents only last 17 years, "invalidating all patents since 1980-ish" === "invalidating all patents", unless there are term exceptions buried in the law somewhere.

Not that I'm agreeing or disagreeing with your post, just thought I'd point that out. You may or may not want to reconsider your position. Not that the USPTO gives a fig what we, the Consuming Public, think.

Re:If the USPTO Ever does shape up... (2)

under_score (65824) | more than 12 years ago | (#3703996)

Actually, there are sort-of term extensions: you can add things to your application before it is granted and in the process almost indefinitely extend the duration that the application is in progress thereby shutting out competition without a fully granted patent that might last 30 years or longer. There was an article here on that a few months ago.

Where I work (1)

motherfuckin_spork (446610) | more than 12 years ago | (#3703893)

patents are encouraged. People who have patents awarded are rewarded by the company. This is done because our industry (pharma, drug delivery, an biotech) is littered with patents. Most of these patents are to "protect" your innovation and property - but mostly get used in cross-lisencing litigation. Some of these patents are legit and are needed. A lot of them, though, are just there to serve as landmines to others in the field.

This is very common (1)

iconnor (131903) | more than 12 years ago | (#3703955)

If it became cheaper to litigate these matters, it might not be as much of a problem.
Imagine if all patent litigation was cheap and affordable to all. The odds seem reasonable. If only half are valid, and a small percentage actually apply, this would not be a problem.
Or, we just need to decide to divide all lawyer's bills by 10 or 100 and encourage them to produce results and not bills.

Extortion is illegal (2)

bluGill (862) | more than 12 years ago | (#3703909)

"maybe you don't infringe these seven patents. But we have 10,000 U.S. patents. Do you really want us to go back to Armonk [IBM headquarters in New York] and find seven patents you do infringe? Or do you want to make this easy and just pay us $20 million?"

Now correct me if I'm wrong, but my understand is there are laws against this thing, and SUN could easially have taken IBM to court over this claim. If IBM wants to pay someone to examine all 10,000 patents, that is their right. However the threat that they could is illegal to use.

Re:Extortion is illegal (2)

alen (225700) | more than 12 years ago | (#3703927)

It's blackmail because it's cheaper for Sun or any other company to pay up than to fight a legal battle with IBM.

Re:Extortion is illegal (2)

arkanes (521690) | more than 12 years ago | (#3703972)

Extortion is perfectly legal, you just have to pay bribes ;)

In other words, while that may be what it boils down to, you can be sure that they payed plenty to lawerys to make sure that it got the point across without ever being something that you could bring them to court over. Take a look at threats of prosecution under the DMCA for an excellent example of this.

But that isn't extortion... (0)

Anonymous Coward | more than 12 years ago | (#3704054)

Extortion requires a threat of violence or 'other criminal means' to get something.

IBM mentioned that it had the legal right to examine it's patents to see if they were being respected by Sun, knowing that a court case could be found somewhere in that swamp of 10000 patents. Nothing criminal was threatened - they just threatened future legal action (a legal action to take - heh).

Now, if after hearing Sun's refusal to pay they said something like 'A really nice research facility you have here ... it'd be a shame if it burnt down.' That could be seen as a threat of future criminal actions (arson in this case) to force Sun to pay protection and would be extortion.

So, no extortion. I'm not a lawyer of course - but a quick google reassures me that I'm on the right track with this.

Kevin

Look who's talking. (5, Insightful)

dinotrac (18304) | more than 12 years ago | (#3703911)

Nothing in this article is news except for the source.

This isn't RMS, it's a patent attorney writing in Forbes.

I think I'll stay in tonight. Surely, there are pigs flying about.

Re:Look who's talking. (1)

Cinnamon (15309) | more than 12 years ago | (#3703994)

Note the very last line of the article, that this patent attorney is an 'entrenpeneur in silicon valley'. In other words, he's not writing this as a big-business lawyer shockingly biting the hand that feeds him, but of a businessman who wants to make some money and has decided to use his credentials to try and make it easier.

I mean, his message is still correct, so I'm not going to complain. But it's not particularly shocking that he wrote this.

Purposes of patents (2)

einhverfr (238914) | more than 12 years ago | (#3703912)

Patents not only exist to help innovation, they also exist to grow the commons so that eventually everyone can use it patent-free. If there are too many patents, than the natural competitive system breaks down.

The Supreme Court Agrees (5, Informative)

User 956 (568564) | more than 12 years ago | (#3703913)

From The Supreme Court:

It was never the object of those laws to grant a monopoly for every trifling device, every shadow of a shade of an idea, which would naturally and spontaneously occur to any skilled mechanic or operator in the ordinary progress of manufactures. Such an indiscriminate creation of exclusive privileges tends rather to obstruct than to stimulate invention. It creates a class of speculative schemers who make it their business to watch the advancing wave of improvement, and gather its foam in the form of patented monopolies, which enable them to lay a heavy tax upon the industry of the country, without contributing anything to the real advancement of the arts. It embarrasses the honest pursuit of business with fears and apprehensions of concealed liens and unknown liabilities lawsuits and vexatious accountings for profits made in good faith. (Atlantic Works v. Brady, 1017 U.S. 192, 200 (1882)).


It certainly appears from this Supreme Court opinion, written over a century ago, that the US patent office was already out of control. Sad to say, things have only gotten worse. Thanks largely to the League for Programming Freedom (yes, I'm a member), software patents have gotten at least some of the notoriety they deserve. But the more patents I read, the more I come to the conclusion that things are just as bad in the more traditional hardware areas. It seems that every day somebody finds a patent that just makes everyone's jaws drop open in utter astonishment. Here's one I just discovered: US patent 5,443,036 covers the use of a laser pointer in playing with a cat. Check it out; this is not a joke, unless you consider (as I do) the entire US patent system to be one very sick joke.

To their credit, in 1994 the Patent Office put out a call for comments on "obviousness" standards for patents, asking if perhaps they have been inappropriately lowered. (Is the Pope Polish? Are your taxes too high? Does a bear...well, you know.) Here are the comments I filed in response. Naturally, they were ignored.

Recently a Slashdot reader hit on a brilliant analogy that ties it all together for me, and I'm not even a bearded linux hippie: patents, he said, are merely a form of industrial pollution. After all, both pollution and patents are economic externalities that can enrich individuals or companies at the expense of society as a whole. And both are often defended as economic necessities. At one time, society celebrated the belching black clouds of smoke and soot from steam locomotives, power plants and steel mills as signs of progress and economic prosperity, but this changed. I fervently hope that I live to see a similar sea change in public attitudes toward the patent system.

Want more stupid patents? (2)

srvivn21 (410280) | more than 12 years ago | (#3704073)

How about a patent on the method of swinging sideways on a swing as seen in this story [slashdot.org] .

Re:The Supreme Court Agrees (0)

Anonymous Coward | more than 12 years ago | (#3704082)

Where are the comments? Did you intend to make that a link?

Re:The Supreme Court Agrees (1)

User 956 (568564) | more than 12 years ago | (#3704116)

Oh, crap. I forgot to include the href while typing it out. Oh well.

Is it just the USPTO? (3, Insightful)

Henry V .009 (518000) | more than 12 years ago | (#3703937)

Within the past five or six years, economists in particular have started to question the USPTO's practices, finding little correlation, if any, between patent proliferation and invention.
The article makes a number of good points. Now, I am generally in favor of patents, as long as there is good correlation between patents granted and invention.

According to the article, this is no longer the case because the nature of the USPTO has changed in the past couple of decades. If that is the case, fine. Reform the patent office.

But what if that is not the only factor? What if technology has gotten too advanced for any practical patent system to work anymore? What if genuinely new ideas can only be separated from the mass of old obvious ideas by the experts in the fields? It used to be that someone with a B.S. degree had a good chance of deciding whether or not a patent should be granted. If a doctorate is needed, can the USPTO sustain that? There is no way they could hire enough good people for every field. The people they would need are the people who should be out inventing. Maybe patents on IP have become impossible. Now there is a brave new world for you. I'm no rabid slashdot IP ranter either (you can be the judge though). I support a good patent system. But this article got me wondering if it is possible anymore.

We all knew it... (1)

sheepab (461960) | more than 12 years ago | (#3703945)

..once someone tried to pull this [fark.com] off. Parents can be utterly stupid sometimes.

Not trying to troll but... (3, Insightful)

pinkpineapple (173261) | more than 12 years ago | (#3703954)

Explain to me how a company with programmers on its payrool, and that supports open source can protect itself against code/ideas thieves if they don't patent their ideas? I just try really hard to understand what is the right balance between using open source to free users from proprietary software and still being able to have some ways of making a buck or two by protecting ideas. Very curious about you guys's answers.

PPA, the girl next door.

Re:Not trying to troll but... (1)

chris_mahan (256577) | more than 12 years ago | (#3704078)

Open source software does not mean free software.

If my company makes software, and we are afraid that someone with a technological device (a cd burner) will copy the software and make it available to others, then we have to go after those who have copied the software. How to we enforce that? With a contract, not a patent.

Once the software is out in the wild, how do we get it back? We can't, patent or no patent.

Anyone who wishes to use our software that was "aquired" without coming to us and signing the contract will not have support.

Eventually, enough customers do decide to "purchase" the software because it is easier to have us support them than for them to go look on google for a newsgroup that might have the correct info. (it will just cost less for them to call us than for their programmer to surf the net looking for an answer). No patent needed there.

As far as "loss of revenue" from "unpaid" copies, it is more than adequately offset by "advertising" and "branding" benefits. After all, we are reaching potential customer at no real cost to us when someone downloads the software of the net.

Of course, if the company was poorly managed, or its business model unsound, or the technology inadequate (buggy, features not competitive) then our product either wouldn't sell, or the revenue from the sales would not cover operational cost and investment's expected returns. But that would be true patents or not.

So in reality, you can have a successful company, making real money, offering open-source or closed-source software, without patents, as long as your customers realize the value of getting the software directly from you.

And piracy happens to closed-source projects too, patents or not.

Re:Not trying to troll but... (0)

Anonymous Coward | more than 12 years ago | (#3704181)

That hasn't really happened yet. You are basing your argument on a supposition. One that after may many years has not really bared out. I wouldn;t make a bet on something like that.

Re:Not trying to troll but... (1)

Saidin (105994) | more than 12 years ago | (#3704096)

Well, depends on what you mean by "supports open source" and "protect itself". If they plan to open source the software that they are writing, then the fact that they publish that software means that it becomes prior art. That protects them from someone else coming and patenting the idea in their software and forcing them to pay royalties.

Re:Not trying to troll but... (1)

mir@ge (25727) | more than 12 years ago | (#3704118)

Under the GNU Public License code is "copyrighted". The trick is that the license allows for works based upon the code or ideas there in. They just must to be licensed in the same manner as the original code. I've never heard of anyone patenting open source code -- probably because it is prohibitively expensive and time consuming. There is no way anyone can protect their code or idea or stuff from theft once in public itself except by constant vigilance. As for making a buck, once somebody figures that out I'd like to be told as well.

Re:Not trying to troll but... (2)

ThomasMis (316423) | more than 12 years ago | (#3704123)

I don't feel the "group think" is advocating the complete deconstruction of the patent system. Rather, we're calling for a responsible and competent patent office. For example, I dare you to defend (I wish I had bookmarked the link into the USTPO) a patent I just read over syntax highlighting in document editors. We are to believe that highlighting syntax in my C++ editor is so innovative that this one company can now bring litigation upon any programmer who might have implemented this feature in their application. I consider that gross negligence of the patent office (after all, I don't fault the patent submitter for taking advantage of the system... companies will always acted in an underhanded manner as long as they are allowed to).

No patents? No problem. (4, Insightful)

ChaosDiscordSimple (41155) | more than 12 years ago | (#3704130)

Explain to me how a company with programmers on its payrool, and that supports open source can protect itself against code/ideas thieves if they don't patent their ideas? I just try really hard to understand what is the right balance between using open source to free users from proprietary software and still being able to have some ways of making a buck or two by protecting ideas.

The first part of the answer is: most companies with programmers on the payroll don't make any money selling the software or enforcing patents. Most software is developed for in house use or to solve a particular problem for a specific customer. So only the minority of companies need to worry about this at all.

If you're releasing under the GPL, your competitors will be unlikely to take your source. If they do, they either have to release their source back to you so you can take their improvements, or they're infringing copyright and you can sue them.

As for "stealing ideas," an even smaller number of companies develop any ideas worth patenting. Most software which is sold uses well understood, non-patentable techniques.

As for stealing your ideas, so what? Companies like Cygnus and Red Hat managed to do alot of business selling a product that wasn't patented. Only recently did Red Hat start getting defensive patents. There are other things to sell beyond a monopoly on an idea. Most notably, if you had the idea first and developed it to fruition first. Who is going to be able to have the first to market advantage? You. Who is going to be in the best position to push the idea to its limits and maintain the cutting edge? You.

Will the elimination of software patents reduce the profitability of some software companies? Certainly. But it will be a very small number of companies. Those companies will still have some advantages in the market. And if the market grows and competition increases as a result, maybe it's a good idea.

Re:Not trying to troll but... (0)

Anonymous Coward | more than 12 years ago | (#3704213)

Old school hardware hacker Don Lancaster has written a lot of columns on the futility of patents.

Don Lancaster's Guru's Lair [tinaja.com]

The main issue is that patents do nothing to protect ideas, because the outcome of any patent fight will have more to do with deep pockets than with merit. It you have enough money, any individual patent can be busted, and any intellectually feeble patent can be enforced.

Patents are just baseball cards that the big boys collect and trade, and use to keep smaller players from competing.

If it is any consolation, open source code might be used as prior-art against a lame patent applied for later. But don't count on it. The patent system was never meant to protect anyone besides the largest players in a given industry.

Obligatory Beowul^h^h^h^h^h Patent Post: (2)

zulux (112259) | more than 12 years ago | (#3703958)

I have a patent on the obligatory posting of funny patent posts on slashdot. It also appears that the same patent also covers recursion. All Lisp users, prepare to empty your bank accounts.

Re:Obligatory Beowul^h^h^h^h^h Patent Post: (2)

ceejayoz (567949) | more than 12 years ago | (#3704012)

Someone needs to patent the patent process and charge the US Patent Office for it...

Well this seems to be obvious (3, Insightful)

sielwolf (246764) | more than 12 years ago | (#3703968)

Isn't this always the problem? I mean, every problem? We can't live without something, but we can't have too much of it: Patents, seratonin, oxygen, laws, protein, etc, etc, etc. Hell, probably half of the discussions on Slashdot could be resolved by realizing that a middle ground equalibrium point needs to be reached.

Sadly every time a new subject is broached, two factions arise with the same redundant "yes but" arguments. And you always have the brave few trying to reconcile everything. But it's always pointless. After a point all the damn DeCSS/MPAA/RIAA/DMCA topics look the same.

The core of the problem: there is no concrete value of optimality that can be stated that is true in all infinite cases.

Examples:
How many patents should we allow?
How much protein should we eat a day?
How many rights does a corporation have?

Re:Well this seems to be obvious (2, Insightful)

telbij (465356) | more than 12 years ago | (#3704157)

The core of the problem: there is no concrete value of optimality that can be stated that is true in all infinite cases.
I wholeheartedly agree, however, the reason these issues are becoming so pressing these days is because the rate at which patent saturation is stifling innovation is increasing geometrically. For one thing computer code has a variety of attributes that were unforeseen 100 years ago:
  • Freely duplicable
  • Potentially short span between conception and implementation
  • Highly reusable
  • Highly expandable
I am a fiscal conservative, and I love the elegance of the Free Market system, but it's based on assumptions of the Industrial Age. Our economic system is splitting apart at the seams trying to reconcile all the implications of digital data and communications.

While you are right that there is no concrete optimal value (for anything really), our system will remain skewed until we figure out a more effective method of rewarding contribution to society rather than rewarding legal expertise and clever marketing.

For the love of America, politicians better wake up to this problem, because otherwise all the creative minds who are responsible for true innovation will all move overseas where they won't be squashed by huge corporations.

ibm-sun case, criminal blackmailing (0)

Anonymous Coward | more than 12 years ago | (#3703969)

The article describes ibm-sun case. wouldn't it be a case of criminal blackmailing? what if cops arrests you and when they find that there is no case against you, they still tell you to plead guilty and threaten you that if you don't plead guilty, then they will try to find another law you broke and given 10000s of them, you must have broken some. i believe, if sun had done secret taping of the event and send it to fbi, some ibm lawyers would have been in jail and ibm might have lost those patents because they used them as an illegal weapon in criminal case.

Re:ibm-sun case, criminal blackmailing (1)

sealawyer (473327) | more than 12 years ago | (#3704032)

I think it would have been illegal if the original violations being discussed were criminal rather than civil.

The question I'd have is that without an identification of what patents were being infringed, exactly what did Sun buy for 20 million dollars? Did IBM give them a blanket license for all of their patents issued to that date?

I don't doubt that the meeting went largely the way the story is described, but I'm sure there were some more details involved that might make the whole thing sound a little last shady on IBM's part.

Article fails to say why fewer patents are bad (1)

Anonymous Coward | more than 12 years ago | (#3703974)

The article is quite silly.
If you have a lot of patents - this is good from your point of view since you can generate revenue and sue would-be imitators.
If you don't have a lot of patents - this is bad from your point of view since you will get your ass sued.
Is this the author's intended message?
If not - what is the point of his article?

Re:Article fails to say why fewer patents are bad (0)

Anonymous Coward | more than 12 years ago | (#3704162)

Because that is a given. It's the entire reason the patent system exists. It's a philosophy a couple hundred years old, it hardly needs to be re-hashed out again here.

Or maybe it does, since you actually asked the question.

IBM uses more than patents... (1)

uncoveror (570620) | more than 12 years ago | (#3703981)

IBM uses more than just patents to take out the competition. They also like to place moles into their competitors, such as Carly Fiorina at HP. They want a monopoly. Microsoft arent the only Borg! http://www.uncoveror.com/fiorina.htm

Re:IBM uses more than patents... (0)

Anonymous Coward | more than 12 years ago | (#3704009)

That may be true but you've got to admit that the neckerchief Fiorina is wearing makes her look pretty hip.

By the way - are you a nutcase in real life or do you just play one on Slashdot?

Necessary evil, but how much is necessary? (2)

Helmholtz Coil (581131) | more than 12 years ago | (#3703995)

What is that toxicologists say? Something like "the poison's in the dosage."

It's kind of like that with patents. I work for a small engineering R&D company, and if we couldn't patent what we developed we just couldn't develop it. But too many patents, and future innovation (ours included) is stifled.

By the way there are lots of other problems with the patent system. For example, the way the system is set up it tends to discourage collaboration, e.g. between private sector and universities by making the "who owns what IP" so convoluted as to price it out of feasibility for small companies.

The fix is simple (2)

MBCook (132727) | more than 12 years ago | (#3704000)

Steps:
  1. Get a patent on the process of pattenting things
  2. Charge anyone who infringes on your patent $500 million
  3. Except for those patents you deam to be worthwhile, they get by for free
  4. Get rich AND fix things!

Re:The fix is simple (1)

TheAwfulTruth (325623) | more than 12 years ago | (#3704148)

Sorry, your third wish cannot be for more wishes... (Or in this case, your first)

Two words (2, Troll)

pete-classic (75983) | more than 12 years ago | (#3704002)

loser pays.

-Peter

Re:Two words (-1, Flamebait)

Anonymous Coward | more than 12 years ago | (#3704133)

Bullshit. This argument has been hacked to death hundreds of times. Several of them on /. itself! +3 Insiteful. I don't think so.

Re:Two words (1)

MisterBlister (539957) | more than 12 years ago | (#3704202)

loser pays.

In many (if not most) cases the loser is the guy with less money to spend on lawyers, not the person who is actually in the right. So if loser pays, a lot of cases will end with the little guy getting fucked over even more than they do now. Not only will they eat their own lawyer costs, plus damages, plus lost business, but now they are going to be in debt for the rest of their lives paying off the legal fees of the giant corporation with 20 lawyers on the case who just ass-raped him to begin with.

Think of the children...er, lawyer's children (1)

chrisvr (41985) | more than 12 years ago | (#3704041)

A friend of mine works for the US Patent and Trademark Office. They just found out that 1/3 of them are losing their jobs as of September 1. My friend doesn't know if he is getting the axe but is pretty nervous- heck, the #1 reason anyone works for the government is job security.

When guvmint lawyers are getting laid off in a Republican presidency, something is just not right.

More patents=more work for my friend and food for his children. So go, bureaucracy, go!!

Too many patents are worse than too few. (3, Insightful)

HiThere (15173) | more than 12 years ago | (#3704043)

Actually, too many patents are **WORSE** than too few. Especially if they are broadly interpreted. Especially if they are expensive in time and money to challenge.

Most of the patents that I've encountered recently seem to be of the sort that violate the basics of patent law. Prior art, trivially obvious, etc. But nobody can challenge them because it's too expensive. It can tie you up for YEARS, even if you can afford it (and we're talking millions here, when you count the appeals and all).

Plus, of course, you don't know *when* they will decide to drop the shoe on you. And when they do, if they win they'll be able to collect all of your profits, and then some, as damages. Unless you devote the time and effort to fight them at a time of their choosing, and frequently in a court of their choosing (though that's a bit limited).

The patent system is so broken that we would be far better off without any patents at all. It needs to be started from scratch, and not have *ANY* of the patent lawyers or members of patent cartels be allowed to take part in the redrafting of the laws. (Yeah, fat chance, I know. But that's what's needed.)

How soon 'til critical mass? (2)

cryptochrome (303529) | more than 12 years ago | (#3704086)

I don't think there's any doubt in anyone's mind who knows anything about the situation but that our uncritical and over-generous patent system needs serious reviewal. Likewise the overly-broad and overly-long copyright system. The matter of EULAs hasn't been addressed at all in a legal sense. Nor have potentially discriminatory and damaging region locking and copy protection schemes.

What is needed now is for congress, the courts, business, or the people to take a long hard look at the situation and make some changes for the better, but I don't see anyone moving on these issues individually or as aggregate. And even if they were, there's a serious possibility it could just be made worse. Anyone have any ideas?

Didn't I see something like this? (1)

bahtama (252146) | more than 12 years ago | (#3704113)

Features: Slashdot Manufactures Patents Threat
[ Editorial ]Posted by bahtama on Fri June 14, early afternoon
from the patent-office-has-new-sinister-meaning dept.

The sleaze has gotten out of hand; it's time to roast a company whose profits are directly linked to creating fear about proprietary products and ideas in their readers, who have to keep discovering new sources of fear to improve their bottom line - or in the absence of new discoveries, keep inventing new sources of fear. Yes, it's time to take on Slashdot.

:) I couldn't resist.

Drug patent system for software? (0)

Anonymous Coward | more than 12 years ago | (#3704138)

Drug companies are allowed 7 years make use of their exclusive products (which amounts to only 3-5 years after FDA approval process). Other manufacturers are free to move in after that point.
I'd like to think that this system could work for software as well. What would happen if Microsoft only had 7 years to make money with a product before other companies could market an identical product? Innovation and competition might return to the software market.

How about patenting invention? (1)

The Creator (4611) | more than 12 years ago | (#3704177)

Or maby patents? And then you shake the patent office down for using your patents. Fair's fair.

The problem is duration, not quantity (5, Insightful)

Sloppy (14984) | more than 12 years ago | (#3704217)

IMHO, the biggest (perhaps the only?) problem with patents, is that the duration is not a function of the development cost. If a company really does spent a gazillion dollars developing something, then maybe a 20 year monopoly makes sense. Or maybe 40 years. Or maybe one year. But that's not how the system works.

And that's reason software guys, in particular, bitch about patents so much. (And it's not just Free Software guys. Commercial developers of less-than-megacorp size are going to tend to hate patents as well.) We happen to work in a realm where development is so ridiculously cheap, that the arbitrary hard-coded duration is completely inappropriate and senseless.

It costs cash to review patent applications... (1)

IPLawyer (123435) | more than 12 years ago | (#3704228)

"The USPTO interpreted these new decisions very broadly and began to issue patents on computer software--hitherto considered uncopyrightable as mathematical algorithms, since they are not really human inventions."

First off, computer software, both object and source code, has always been amenable to copyright protection.

Secondly, the decisions the author refers to have nothing to do with computer software, only methods of doing business. Moreover, patent applications for computer software have been routinely filed and allowed for over thirty years.

The real problem is that thousands of dot.bomb corps were awarded patents on questionable inventions due to lack of funding for additional examiners and technology resources through which to carry out patentability searches. As for the PTO being a cash cow, sure, but because Congress regulary strips generated revenue to pay for general expendatures of the federal government, we aren't seeing a better system as a result of increased revenue.

Lobby Congress to stop taking PTO funds and maybe fewer questionable patents will be issued.

Just my 2 cents...
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