Beta
×

Welcome to the Slashdot Beta site -- learn more here. Use the link in the footer or click here to return to the Classic version of Slashdot.

Thank you!

Before you choose to head back to the Classic look of the site, we'd appreciate it if you share your thoughts on the Beta; your feedback is what drives our ongoing development.

Beta is different and we value you taking the time to try it out. Please take a look at the changes we've made in Beta and  learn more about it. Thanks for reading, and for making the site better!

Patent Office Head Lays Out Reform Strategy

ScuttleMonkey posted more than 7 years ago | from the long-overdue dept.

Patents 253

jeevesbond writes to tell us that Jon Dudas, the Under Secretary of Commerce for Intellectual Property and Director of the US Patent and Trademark Office has laid out a plan for patent reform. "Speaking at the Tech Policy Summit in San Jose, Dudas said that characterizing the patent system as hurting innovation is a 'fundamentally wrong' way to frame the debate. 'I have traveled around the world, and every nation is thinking how it can model [intellectual property governance] after the U.S,' Dudas said. 'It's a proven system, over 200 years old. The Supreme Court, Congress and policy makers are involved [in cases and legal reforms] not because the system is broken. It's not perfect, and we should be having the debate on how to improve.'"

cancel ×

253 comments

Sorry! There are no comments related to the filter you selected.

Just a few things (5, Insightful)

fyngyrz (762201) | more than 7 years ago | (#18186164)

See any serious problems with this story?

Other than the fact that this guy is out of his bloody mind?

Software patents: totally ridiculous, and putting a huge hurt on an area that should be boiling with creativity. Creatively speaking, this time in our history offers more creative ground and lower barriers to entry than ever before in our history. The primary barrier, aside from your own intellectual resources, is the patent system. It is a barrier to creativity, and furthermore, it is a barrier to progress.

Hardware patents: First guy with the money into the patent system and with the wherewithal to defend the patent wins. Nothing to do with the actual inventor; totally centered about money. Anything wrong with that? Only that it suppresses any inventor without corporate backing, which ought to be a crime in and of itself.

And oh yeah, the other inventor(s) who worked on this? A second late to file, and they are well and truly locked out. Is that fair? Is that even slightly fair?

The US patent system is a well of misery, corporate bootlicking, and "let's crush the little guy" methodologies. Sure, everyone else looks to the US system, because it is a system designed to turn over money, not encourage innovation. The fact that it manages to encourage at least corporations to innovate can be considered a side effect. It certainly isn't the main goal of the system, which is to feed the legal profession a regular set of juicy, meaty bones.

I'll tell you what is "fundamentally wrong"; The US patent system is fundamentally wrong. Why? Because it is a system that guarantees that anyone but the 1st to the gate is hammered; because it is a system that guarantees that anyone without deep pockets cannot actually be protected (read, encouraged) by the system; because it discourages innovation. The number of devices/programs you can actually create without running smack into someone's fool patent is very near zero. So much for encouraging innovation. Now lawyers... they are encouraged. Oh yes. Very much so.

The copyright system isn't doing a lot better, but that's a different issue, somewhat.

Re:Just a few things (1)

iplayfast (166447) | more than 7 years ago | (#18186218)

Yes...
But how do you really feel? :)

Re:Just a few things (1)

gardyloo (512791) | more than 7 years ago | (#18186220)

The primary barrier, aside from your own intellectual resources, is the patent system. It is a barrier to creativity, and furthermore, it is a barrier to progress.
So you're saying that it's basically the real world's "-10^9: Redundant" mod?

Re:Just a few things (5, Insightful)

AndersOSU (873247) | more than 7 years ago | (#18186324)

I don't think software patents are a good thing, so I'm not going to argue with you there. But hardware should be patentable - it is a real physical devise, and provided it does something novel and non-obvious, the R&D investment should be protected. In the rare case that individuals independently discover something - tough luck if you didn't think of it first - that is the way it works.

You seem to be mistaken as to how the US patent system works. The US operates under a first-inventor principle, which means that it isn't the guy who makes it to the office with the money first that gets the rights. Not that first-inventor isn't without problems, but the race to the patent office isn't one of them.

The US system is most certainly broken, but clearly not in the ways you think it is. I'm looking forward to reading the article, but it appears slashdotted. IMHO the biggest problem with the current state of the patent office is the rubber stamping of obvious and trivial inventions.

Re:Just a few things (2, Insightful)

CmdrGravy (645153) | more than 7 years ago | (#18186422)

I agree, I think hardware patents seem to work quite well the problem is when you simply try and transfer that model onto something which is inherently different like software.

Re:Just a few things (3, Insightful)

Chandon Seldon (43083) | more than 7 years ago | (#18186554)

I think hardware patents seem to work quite well

Do you have any reason for this belief?

Patent law is an economic tweak that is intended to "promote innovation". It's possible to see if it's really doing that, and if it isn't then it obviously should go away. Even if it does promote innovation, that still doesn't mean it's a good idea - like any economic choice it has a benifit and a cost, and the cost should be looked at closely and frequently for any country-wide economic policy decision.

Re:Just a few things (1, Informative)

spatley (191233) | more than 7 years ago | (#18186844)

Patent law is an economic tweak that is intended to "promote innovation".
Really? I was under the impression that patent law was intended to protect intellectual property. In the same way that real estate law is intended to protect greographical property.

The fact that protecting property makes it more profitable and therefore encourages the creation of it (read: innovation) should really be considered a secondary benefit.

Re:Just a few things (4, Insightful)

Chandon Seldon (43083) | more than 7 years ago | (#18187032)

I was under the impression that patent law was intended to protect intellectual property.

In that case, you are confused.

It doesn't surprise me that there are people confused about this topic, because certain special interest groups have been promoting the inaccurate "intellectual property is like real property" view for a while now - with the specific intention of creating this sort of confusion.

Patent law in the United States has a very clear history, going back to a section of the United States constitution:

In Section 8, Congress is granted the power...
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

Thus, at least in the United States, patents exist for the express purpose of "promoting the progress of Science and the Useful Arts".

Re:Just a few things (1)

spatley (191233) | more than 7 years ago | (#18187070)

Well there you have it. Touche'

Re:Just a few things (1, Insightful)

tambo (310170) | more than 7 years ago | (#18187400)

Thus, at least in the United States, patents exist for the express purpose of "promoting the progress of Science and the Useful Arts".

You're correct that the patent system is intended to promote science and technology. Half of the reason for the patent grant is to compel inventors to release a broad, detailed technical description of the invention to the public.

But the patent system is also intended to protect the rights of inventors and authors, by granting them property rights to inventions and creative works. Hence the use of the term THEIR in that same constitutional passage. This implies possession and ownership. And this is the other half of the reason for the patent system: to reward inventors and artists - as a way of encouraging further invention and authorship.

Throughout its 200+ year history, the U.S. patent system has granted private ownership rights to abstract ideas. Some people don't like that notion. It's understandable - even Thomas Jefferson was opposed to it at first. But he warmed to the idea, and became its proponent, when he realized the boost that science would get from this incentive system.

Look, people - ownership rights = capitalism, which is still the most efficient economic system that history has yet devised. The patent system certainly needs some reform. But if you're opposed to the general notion of ownership rights, then your arguments are 220 years overdue.

- David Stein

Re:Just a few things (1)

NoOneInParticular (221808) | more than 7 years ago | (#18187790)

ownership rights = capitalism

In previous era's the monarch owned the entire country: lands, writings, inventions, whatever you can name. You wouldn't call that capitalism, right? We're now slowly turning into a society where corporations own everything: land, writings, inventions, whatever you can name. And CEO's are their high-priests. Maybe capitalism, but efficient? That has yet to be seen.

Re:Just a few things (1)

CmdrGravy (645153) | more than 7 years ago | (#18187030)

Do you have any reason for this belief?
The amount of new hardware constantly being developed might be some indication that they are working well, you could obviously argue that without a comparison to what would have been developed if patents did not exist it's hard to measure that but equally you'd have to back up your argument that no patents are better for innovation than patents with some evidence.

Re:Just a few things (3, Insightful)

Chandon Seldon (43083) | more than 7 years ago | (#18187108)

My argument would probably start with The Tragedy of the Anti-Commons [wikipedia.org] .

The fact is, I don't know if patents on physical devices are a good idea or not, but I don't think that assuming that it is a good idea because it hasn't completely stopped the production of new devices is a good place to start.

Re:Just a few things (2, Interesting)

AndersOSU (873247) | more than 7 years ago | (#18187638)

I don't know how hardware patents are working, but I think that patents in general are necessary to support R&D overheads.

This is where some laissez faire guy usually touts the first-mover advantage. Frankly, first-mover advantage is vastly over-rated. Sure it works for the iPod, but if the patent system were about to collapse I'd put my life-saving on the line that big-pharma would close their R&D facilities within a year. Big pharma, for all their massive short-comings, spends tons of money on R&D. Generally speaking I think people agree that having new and better drugs is a good thing.

Now, today pharma tells us what their molecule (and their process) is and the minute it comes off patent a generic is there to supply it for cheap. This is also a good thing, (putting the limited in limited monopoly) but the reason that generics can make the drug cheaper than big pharma is that they don't have to pay for R&D. Even if pharma kept the molecule a secret it would take a chemist specializing in structure elucidation, a process chemist, and a process engineer maybe a year to figure out how to make it. So big pharma spends 7-10 years employing hundreds of people finding developing and testing hundreds of analogs and tens of millions of dollars on animal and clinical trials only to be under-cut in a year by less than a dozen people doing reverse engineering.

I would say that drugs, engine parts, and hardware are similar as far as patents go in that it is far easier to figure out someone else's idea than come up with your own - which would cause R&D departments across the country to shut down if there were no patent protection.

I think patents are a good idea, but also that the patent system is broken.

Re:Just a few things (0)

Anonymous Coward | more than 7 years ago | (#18186724)

the R&D investment should be protected

Why? If I make hamburgers, I don't get protection. Everyone who invests money would like the government to step in and protect their investment, but as a nation we don't agree with that. Patents aren't promoting the arts and sciences, they are promoting lawsuits and lawyers.

Re:Just a few things (1)

AndersOSU (873247) | more than 7 years ago | (#18187794)

Right, because everyone knows about hamburgers. The really critical part of R&D is that it is studying something we don't already know...

The government isn't going to provide financial protection for your burger joint, but if in the course of running your burger joint you invent a novel, nonobvious devise that cooks the best burger in the world you should be rewarded for your ingenuity. The alternatives are either you keep it a secret for as long as possible and are able to charge whatever you want for a burger for as long as you want, or the first person who figures out your trick gets to build his own devise and you have no protection and make no money - neither is a good solution. With patents the world gets better burgers, and you get to profit.

Hardware is't really that different (4, Insightful)

EmbeddedJanitor (597831) | more than 7 years ago | (#18186808)

Why is hardware really different? These days so much hardware is designed in a very similar way to how software is designed.... You get an idea, sit at a work station, pull up part specs etc and draw schematics. You then run suimulations -- pretty much like how you'd test code. Then once you have a design that appears to work, send it off for a trial build. No real stuff "hard stuff" involved so far.

Sure, when you get the hard stuff back, you have something tangible.

Here's the kicker though. If you get a patent, then you're protecting the **idea**, not a physical board. At the stage in the process when the ideas emerged (ie. design), there was no "hard stuff" involved. I don't really think that there is a case to treat sw and hw patents differently.

The biggest problem with software patents is that they are examined badly. Being able to spot really novel software is very difficult, but the same applies to, say, a hardware motor driver circuit.

And, for the record, I design both hardware and software.

Re:Hardware is't really that different (2, Insightful)

AndersOSU (873247) | more than 7 years ago | (#18187382)

I think that hardware patents should be allowed because if I invent the op-amp I want to get paid for it. Without a hardware patent I'm SOL. There is no copyright protecting hardware (which should be the major IP protector for software), and reverse engineering and reproducing my hardware design would be trivial once I sold the first one.

Re:Hardware is't really that different (3, Interesting)

PitaBred (632671) | more than 7 years ago | (#18187452)

But hardware requires much more of an upfront materials investment. They both require time, but only one is infinitely easy to replicate.

Re:Hardware is't really that different (3, Insightful)

ScrewMaster (602015) | more than 7 years ago | (#18187598)

If you get a patent, then you're protecting the **idea**, not a physical board.

Nope. That absolutely is not how the Founders intended the patent system work. You're confusing concept and implementation. Put it this way, there was a damned good reason why the Patent Office used to require a working prototype of any device that for which a patent application had been made.

In the past, you could have an idea, but you could only patent a particular realization of that idea. Others could take the exact same idea, implement it in a sufficiently different or novel way, and receive an equally-valid patent. That worked very well (for a bloody long time) and it encouraged inventors to look beyond the obvious and find other (often better!) ways of realizing the same fundamental ideas.

The key to that, however, is specificity, narrowness. It was never, ever intended that anyone or any company could control every possible realization of a single idea. That, unfortunately, is exactly what the U.S. patence office allows, if it is true that other countries are modelling their IP laws after our present system, well, that's good. They'll be just as screwed up as we are.

Re:Just a few things (3, Interesting)

tambo (310170) | more than 7 years ago | (#18186994)

IMHO the biggest problem with the current state of the patent office is the rubber stamping of obvious and trivial inventions.

Your opinion is well-founded. I wouldn't exactly call it rubber-stamping, though. The problem is that examiners aren't being given enough resources to do their jobs. In particular, examiners are being hugely pressured with productivity metrics: they have to turn around (x) applications per year, or they get reprimanded or even fired. And one of the key proponents of this system is the very same Jon Dudas. The result is that patent examiners are demoralized and overburdened, so examination suffers - which hurts everyone (including the patentee.)

A better patent examination system will help everyone. This requires giving examiners more resources so that they can do their jobs better... and, perhaps, some more respect, so that their morale remains high.

- David Stein

Re:Just a few things (1)

Mr2cents (323101) | more than 7 years ago | (#18187366)

Something I've never quite understood is how it is determined that an invention is "innovative". If it's just an interpretation, then an idiot would consider a tri-state checkbox innovative, while a genius might consider a fusion reactor trivial (slightly exagerated). Is it voted upon? Or is it a single guy, following some guidelines?

Re:Just a few things (4, Informative)

tambo (310170) | more than 7 years ago | (#18187628)

Something I've never quite understood is how it is determined that an invention is "innovative". ... Is it voted upon? Or is it a single guy, following some guidelines?

It's guidelines-based - but those guidelines go back to the first patent act, passed in 1790. (This was a short three years after the adoption of the Constitution, so IP obviously held a very high priority for our first federal government.)

The guidelines are, essentially, three:

  1. The invention has to be one of the statutory classes - according to the first patent act, an "art, manufacture, engine, machine, or device." This summary has stood virtually intact for 217 years: today's version (35 USC 101) reads: "process, machine, manufacture, or composition of matter." If it's not one of those, then it's not useful and not patentable.
  2. The invention has to be new - it has to be novel and non-obvious. If it's just a rehash of known technology, then it's not "useful" enough to warrant a patent.
  3. The invention has to be complete, to the point where the description can teach others how to apply it. The used here is that it must be "described in sufficient detail to permit a person having ordinary skill in the art to which the invention pertains to make and use the invention without undue experimentation." (Long-winded, yes, but it's a good concept.)
So that's a pretty good level of guidance as to what's "useful." The only tweak on all of this is that, according to the Supreme Court (Diamond v. Chakrabarty) [wikipedia.org] , these limitations are to be read expansively; i.e., the patent system should err on the side of breadth. In their (unusually eloquent) rhetoric, the Court held that the system is intended to include "anything under the sun that is made by man" in its scope. So you should be able to get a patent on anything that meets, at least basically, these requirements.

That's the theory. The practice is even more rigorous, because the patent process is onerous: expensive, protracted, somewhat uncertain. The pragmatic answer is that "useful" is partially determined by the inventor's subjective assessment of its value. The inventor makes a value judgment: is the invention sufficiently "useful" to warrant the hassle and cost?

- David Stein

Re:Just a few things (1, Insightful)

Anonymous Coward | more than 7 years ago | (#18186404)

"It is a barrier to creativity, and furthermore, it is a barrier to progress."

Somehow, I don't think Dudas sees his job as promoting creativity nor progress. I think he sees it as promoting "innovation" (Microsoft style) and "economic health" (production-rights-granted-by-royalty style).

From the article:

"Dudas said that examiners need to be given more deference in determining what is obvious."

It sounds like he's a little miffed that the public finds more things obvious than his examiners do.

Re:Just a few things (1, Interesting)

Anonymous Coward | more than 7 years ago | (#18186440)

When something seems illogical to you but someone knowledgable says it, it's often worth thinking from their point of view. In this case, he, and many "IPR" lawyers and other "IP" types earn their money from the patent system. It is their method to tax technological progress and keep some for themselves. Whilst patents may make life worse for most people, they are a net gain for IP lawyers and patent officers. The best thing is that we, or more specifically our politicians, are stupid enough to ask these people for advice about patents.

(jeeli nie wiadomo o co chodzi, to chodzi o pienidze) - if you don't know what it's about; it's about money. Wise old Polish saying. If a bit cynical.

Re:Just a few things (1)

physicsboy500 (645835) | more than 7 years ago | (#18186490)

But then one must consider what the world would be like without patents altogether. Large cooperations (still with nearly bottomless pockets) would see a new innovation coming and quickly jump on the bandwagon and... *gasp* push the little guy out.

I agree that in the field of software patents, the system may be damaged a bit as things progress much more quickly than most other fields and I feel that protection should be for a smaller period of time due to this fact. If an inventor is responsible though and keeps his idea to himself till the time of file and keeps decent records of his work it is highly likely that he will not only be the first to file, but if larger cooperations backs someone who attempts to swear behind his date of invention it will not hold in court regardless of how deep the company's pockets are unless they really did invent it first.

Yes there are problems (numerous problems at that) but the system is far from broken.

P.S. there is no (-1 I dissagree) mod option.

Re:Just a few things (0)

Anonymous Coward | more than 7 years ago | (#18186620)

Nothing to do with the actual inventor...And oh yeah, the other inventor(s) who worked on this? A second late to file, and they are well and truly locked out.

Out of curiosity, when you've created a system where no one makes any money off invention, how exactly does that help the mysterious "actual inventor" and the slow guy? Being as how you're such a whirlwind of innovation, presumably you have a plan for that?

Re:Just a few things (1)

fyngyrz (762201) | more than 7 years ago | (#18187152)

Out of curiosity, when you've created a system where no one makes any money off invention, how exactly does that help the mysterious "actual inventor" and the slow guy? Being as how you're such a whirlwind of innovation, presumably you have a plan for that?

I don't need a plan for it; just as there is room in the marketplace for many hamburger vendors, many shampoo vendors, many auto parts manufacturers, there is room for more than one vendor of image compression formats, encryption tools, clever little hammers, drills and saws, IC fabricators, drugs to alleviate this or that disease or symptom, and so on.

I disagree with the presumption that first should equal only, or control. First should just be... first. You want differentiation? Fine. There are as many ways to differentiate as you like. Do it on manufacturing quality. Reliability. Warranty. Customer service. Features. Longevity. Multiple use. Asthetics. Storability. Weather resistance. Efficiency. Portability. Price. Financing. Even delivery. You know - things that separate products from one another, rather than producers.

Also, I didn't postulate (much less create) a system where "no one makes any money off invention", I implied a system where lawyers don't, and inventors and producers do. If you want to challenge me, challenge me on where I stand, not under some strawman you cooked up. It was your contention that no one would make any money; so if that position needs defending, you are the one who needs to defend it.

Re:Just a few things (1)

acidrain (35064) | more than 7 years ago | (#18186684)

The US patent system is fundamentally wrong.

I think everyone here feels your pain.

Here is the thing I can't quite figure out. Software patents, and your particularly atrocious "business method" patents clearly don't help innovation. Hardware patents are too easily a form of software patent and protect things that aren't innovation. But it isn't clear to me that all classes of patents are flawed. For example, pharmaceutical patents, as odious as a concept as they are, seem to be the thing that pays the bills for the research, and without them there would be a lot less medicine being developed. And I'm sorry, but I think thats a pretty serious concern for our society.

So here is my question. How do you discern? What clear standard would you suggest they apply to the system to weed out the good from the bad?

I like the idea of the thing being patented *actually being a physical thing* instead of just information, a process, or a way of processing information, but that doesn't seem to go far enough to prevent silly hardware patents.

Re:Just a few things (5, Interesting)

dgatwood (11270) | more than 7 years ago | (#18187296)

What clear standard would you suggest they apply to the system to weed out the good from the bad?

I've said it before, and I'll say it again. It's really simple. You test for obviousness in a way that avoids false "non-obvious" rulings due to obscurity of the problem. To test for good patents, you send out a description of the patent to a dozen people in the field. If any of them comes up with a solution that is basically comparable to your solution within a reasonable period of time, the patent should be rejected with no possibility for appeal.

In the case of software patents, outside certain complex algorithmic areas like digital signal processing, almost everything is inherently obvious if the problem is stated clearly. The only thing non-obvious is usually the problem itself. A patent should never be granted based solely on spotting the problem first. It should be granted based on finding a unique solution to the problem that isn't obvious. More to the point, there should be at least one other way to solve the problem. If none of the examiners come up with another way to solve the problem, then they are not sufficiently skilled in the subject area to have solved the problem, and thus are not qualified to evaluate the patent. If there truly is only one way to solve a problem, then it should not be patentable.

For example, it's a hundred years ago. The problem is that you don't have an eraser around when you have a pencil. Two possible solutions might come to mind: a pencil box with an eraser area and a pencil with an eraser built in. Your typical person skilled in woodworking and making pencils probably won't think of the second one even if you present them with the problem because the alternative solutions are more obvious, though less desirable. There's a third way. Make the outside of the pencil out of rubber. This avoids the eraser-on-the-end patent. So there is provably another solution. As such, the pencil with eraser on the end should be patentable.

As for patents on algorithmic stuff like DSP, that's really all applied mathematics, and should not be patentable. The law says that algorithms cannot be patented, but these corporations skirt around the law by claiming that it is a "process" for implementing the algorithm rather than an algorithm. Since there is usually only one way to implement the algorithm, however, it becomes effectively a patent on the algorithm. As far as I'm concerned, such blatant abuse of this poorly written law should be abolished outright. The only way to do that is to abolish software patents.

The biggest problem with the patent system, though, is duration. If you do not abolish software patents, the patent should have a very short expiration date because the field of software is a rapidly growing field which is quite clearly being stifled by patents. A two or three year duration is the absolute maximum reasonable time for a software patent. Twenty years is laughable. Outside of obscure specialty software like banking systems, twenty years from now, no piece of software that is currently in use will still be in use in any identifiable way. Twenty years ago, we had Windows 2.0, MS-DOS, Mac OS System 2, the Apple IIgs was popular, Atari made computers, the Commodore 128D, and the Amiga 2000. Out of all of those, only two are in some small way the ancient ancestors of something we still use, and even those share no real code in common and show only the barest hint of UI similarity to their successors.

Even in computer hardware, there may be some advantage to shorter patent durations because of the speed at which the industry is changing. However, at the same time, there is little opportunity for new companies or individuals in fields like microprocessor design anyway due to the huge startup costs. In software, where the cost of development is strictly the time consumed, the constant influx of new blood is what keeps the industry innovating, and when you have people saying, "I'd wrote a free app that does [blah], but [company] threatened to sue me for patent violation if I don't take it down," there is no question at all about the chilling effect this has on their ability to drive the industry in new directions. And that is why software patents are fundamentally wrong. It is the only industry in which there is any significant innovation taking place in which the initial investment required is within easy reach of individuals, and as such, the ability of individuals to create new software should not be encroached upon by laws that make it harder for them to innovate. Software patents do just that.

Re:Just a few things (0)

Anonymous Coward | more than 7 years ago | (#18187592)

I know this is completely, totally off topic, but would you by any chance be David Gatwood of MkLinux fame?

Re:Just a few things (1)

fyngyrz (762201) | more than 7 years ago | (#18187374)

For example, pharmaceutical patents, as odious as a concept as they are, seem to be the thing that pays the bills for the research, and without them there would be a lot less medicine being developed.

Well, you need to look at why it is so expensive to develop pharmaceuticals. Where are the costs? First, there are the government hoops to jump through, the approvals that need to be gotten. The presumption there is that the pharma companies can't operate without big brother watching over them. I disagree. I think we can do away with that and make them cover their own asses; costs for problems caused, rather than hoops and delays made of paper and bureaucrats. Let them find the most efficient way to make good drugs. Government isn't it.

Second, lawyers. Pharma is subject to lawsuits at a rate one can only boggle at. They try to help, supply drugs that really do work very well, someone is not your average patient, and bang, there goes a hundred million bucks. They have to have huge slush to cover this stuff. I don't see that this is reasonable.

Should people who, through no fault of their own, get hosed by taking some drug that says it is for what they apparently have, be left to flounder? No. Should they make huge legal messes? Also no. Society should just take them under its wing, help 'em out, and move along. Life is full of risks. We should ameliorate them, but we should not indemnify against them, or worse, reward running into them.

Third; like everyone else, they have to allow for patent fights. Get rid of that. Want to make a drug? Go ahead and make it. Design the system so that there is more of a percentage in sharing the idea than hiding it. There are several ways to go about that I can think of (pooling risk, pooling R&D and results, pooling or staging manufacturing capabilities), I'm sure others, far more clever than I am, could do better.

Once you pull the costs inherent in the way pharma is forced to do business, you've got an entirely new business model. That's what I'd like to see happen. Patents are part of those costs; they only benefit one of the players at a time, and perhaps not even then if they have to defend. Redesign the system so that new ideas and inventions benefit the players in a broad sense. Knowledge is a poor choice for "gimme-gimme" behaviors, it seems to me.

ike the idea of the thing being patented *actually being a physical thing* instead of just information, a process, or a way of processing information, but that doesn't seem to go far enough to prevent silly hardware patents.

Nothing can prevent silly patents, because there is no metric that can be used to decide what is obvious. Here we are, 200 years into the system, and "obvious" and silly patents abound. The system does not work. Not on that level, and not on many others. Lawyers excepted.

Re:Just a few things (0)

Anonymous Coward | more than 7 years ago | (#18186778)

The number of devices/programs you can actually create without running smack into someone's fool patent is very near zero. So much for encouraging innovation.

And tell me this feeling isn't just as stifling? When you assume as a matter of fact that you cannot innovate, where does that leave you regardless of the patent system?

Re:Just a few things (3, Interesting)

tambo (310170) | more than 7 years ago | (#18186862)

Other than the fact that this guy is out of his bloody mind?

This guy does have some issues. Some of his reform ideas are universally and vociferously panned. For instance, he wants applicants to "designate" a few patent claims that will be examined - and the rest of the claims aren't, so that the patent issues with completely unexamined claims. Very bad idea.

Then there's this comment: "It's a proven system, over 200 years old..." - Anyone even tangentially involved in the patent system should know, off the top of their head, that the current system really goes back only to either 1836, which re-introduced the idea of patent examination, and that the modern system of peripheral patent claiming (probably the defining element of patent prosecution) only dates to somewhere between the patent acts of 1870 and 1952. What we had before 1836 was patent registration, which was a hideous mess. No one involved in the patent system should be making such mistaken characterizations... let alone the head of the USPTO.

But the rest of your comments are spurious. For instance: Software patents: totally ridiculous, and putting a huge hurt on an area that should be boiling with creativity.

Are you seriously suggesting that software isn't boiling with creativity? Look at everything Google is doing, and all of the Linux distros, and all of the stuff on SourceForge. Look at the rapid development of Web 2.0 apps in the last two years. Look at the rate of deployment of software across a huge range of devices, from 64-bit super-pipelined machines to UMPCs to dinky cellphone processors. What part of this is "crippled?" Software development is limited only by the rate of our collective imagination. Patents aren't hampering anything.

First guy with the money into the patent system and with the wherewithal to defend the patent wins. Nothing to do with the actual inventor; totally centered about money. Anything wrong with that? Only that it suppresses any inventor without corporate backing, which ought to be a crime in and of itself.

You are misinformed.

Sole inventors have the power to defend their inventions - all they have to do is to publish them. If they were truly the first inventors, their publications will trump any second inventor's attempt to patent it! Any such patents will be invalidated by their publication - see 35 USC 102(a). True, they will not have the benefit of a patent monopoly - but they didn't pay for that privilege.

And oh yeah, the other inventor(s) who worked on this? A second late to file, and they are well and truly locked out. Is that fair? Is that even slightly fair?

Thomas Jefferson certainly thought so. In fact, he thought it was important enough to include in the U.S. Constitution. You are welcome to take it up with him in the afterlife.

The US patent system is a well of misery, corporate bootlicking, and "let's crush the little guy" methodologies.

Again, you are misinformed. Patents are too expensive to assert against "little guys." Patents are almost solely used by large corporations against other large corporations. In practice, the "little guys" - sole inventors - are almost never accused with patent infringement. Why bother? It's too expensive, and there's no benefit for the corporation.

The copyright system, on the other hand, is deeply diseased and deeply in need of reform. The RIAA's antics are proof positive of that.

- David Stein

Re:Just a few things (3, Insightful)

dgatwood (11270) | more than 7 years ago | (#18187560)

Are you seriously suggesting that software isn't boiling with creativity? Look at everything Google is doing, and all of the Linux distros, and all of the stuff on SourceForge. Look at the rapid development of Web 2.0 apps in the last two years. Look at the rate of deployment of software across a huge range of devices, from 64-bit super-pipelined machines to UMPCs to dinky cellphone processors. What part of this is "crippled?" Software development is limited only by the rate of our collective imagination. Patents aren't hampering anything.

So by your logic, because innovation still occurs, innovation is not being stifled. By that same logic, because I and all of my coworkers successfully drove to work this morning, I can conclude that there were no traffic accidents in the Bay Area, and that driving is completely safe. Am I understanding correctly? I'm sure there's a name for this logical fallacy. Ah. Here it is.argumentum ad ignorantiam [wikipedia.org] . So I'll attack that logical fallacy by simply providing the needed proof.

Google is a corporation. They are inherently somewhat shielded from patents by virtue of their own portfolio and their ability to defend themselves. Web 2.0 apps are only happening because nobody has started suing in that area. If another Amazon one-click patent bit users of AJAX, we'd see a major chilling effect outside of the corporate space.

Linux distros? IBM defending themselves from SCO. Microsoft claiming that Linux infringes on their patents. Though they haven't sued, that doesn't mean people aren't getting uncomfortable.

And then, there are the lawsuits over MP3. Bets on whether either of those impact Ogg Vorbis, anyone? They're pretty broad.... And how many extra years did Vorbis take because they were trying to dodge the patent minefield? How much other software that you use every day either costs more because the company had to license some BS patent or defend against it? How much other software that you use every day took longer to release because they had to spend extra effort to avoid some BS patent?

In practice, the "little guys" - sole inventors - are almost never accused with patent infringement. Why bother? It's too expensive, and there's no benefit for the corporation.

While that is true, that doesn't mean that the little guys don't worry about it. And if the little guys are worrying about it, they are avoiding doing things out of fear of getting sued, and that is stifling innovation even if those fears are not justified.

Re:Just a few things (1)

Eccles (932) | more than 7 years ago | (#18187600)

Thomas Jefferson certainly thought so. In fact, he thought it was important enough to include in the U.S. Constitution.

I doubt that, since Jefferson did not attend the Constitutional Convention (he was minister to France at the time) and was not involved in writing it.

Re:Just a few things (1)

Talahaski (711819) | more than 7 years ago | (#18187114)

Dudas said that the average examiner salary is in six figures, and that the agency can offer competitive salaries for college graduates. The USPTO, headquartered in Alexandria, Va., is also flexible on workplace location-85 percent of trademark examiners work from home and currently 10 percent of patent examiners are working remotely.
Its pretty clear why they suck. They pay their employees way too much, likely because they expect their employees to have extensive legal knowledge. They allow their employees to work from home, thus reducing the cooperation. I suspect their is a lot of corruption and bribery. I'm honestly not sure how they are structured, but I think they could do better splitting up into departments based on the type of product being patent. Then hiring lower paid researchers ($30-$60k range) who have knowledge in those products and who can easily identify a product that people in the field would consider a unique invention or as something that might be commonly knowledge or otherwise unpatentable. Then each department would have a group of supporting legal experts to further review the patent if it make it to them.

Re:Just a few things (1)

OakLEE (91103) | more than 7 years ago | (#18187166)

I'll tell you what is "fundamentally wrong"; The US patent system is fundamentally wrong.

I am in total agreement that the patent system needs to be reformed, and issues such as obviousness, and the term length for subject matter like software and business method patents needs to be addressed. However, advocating for the abolishment of the patent system (as I suspect you are) would lead to a fundamentally worse situation then the current one.

First, the patent system, regardless of its flaws, does encourage disclosure of inventions and eventually makes them public domain. In 20 years, regardless of how the owner has used, not used, or abused the patent, the invention claimed in that patent will be public domain, and usable by all with no royalties or restrictions. And even during those 20 years, society can still use that knowledge for further experimentation, or improve on the original invention.

Second, and on a related note, abolishing the patent system will encourage the hoarding of knowledge. Currently the patent system gives the inventor two economic choices, (1) disclose the invention and get a 20 year monopoly on it, OR (2) keep the invention secret and try to make money off of it until its rediscovered or secrecy is lost (this is enforced by 35 USC 102(b) statutory bar, which prevents anyone who commercially uses an invention for more then a year from obtaining a patent on that invention). Abolishing the patent system leaves the inventor with these two economic choices, (1) disclose invention and have everybody copy it, OR (2) keep the invention secret and try to make money off of it until its rediscovered or secrecy is lost. Clearly in the no-patent world, choice (2) is the better choice for the inventor. For society though, I think it is probably the worst choice, since everyone is effectively deprived of the knowledge behind the invention for as long as the inventor can keep it hidden. That definitely does not encourage innovation.

As for your specific concerns:

Why? Because it is a system that guarantees that anyone but the 1st to the gate is hammered;

You are wrong here, the US Patent system is the only major system in the world that gives priority for a patent to the first to invent. The EU and Japan both give priority to the first to file. There has been debate over moving to a first to file system in the US, and IMO it has merit, because one of the most expensive parts of patent litigation is determining the date of invention. Also setting the invention date at the date of the filing would encourage faster disclosure of inventions since there would be an incentive to filing earlier, and not try to keep an invention secret.

because it is a system that guarantees that anyone without deep pockets cannot actually be protected (read, encouraged) by the system;

I agree here, patent litigation is inherently expensive and does favor those with deep pockets, but unless you want to do away with the patent system entirely, I see no way around this.

because it discourages innovation.

I would like to see some proof here. Patent applications over time have been continuously increasing. Source [wipo.int] . The USPTO had a record number of applications last year. Source [uspto.gov] . One would figure that if innovation was negatively affected, we would not have seen over a two fold increase in applications over the last 20 years. I would also refer back to my earlier concerns over a no-patent world.

The number of devices/programs you can actually create without running smack into someone's fool patent is very near zero. So much for encouraging innovation.

I would argue that if someone is creating something and keeps running into blocking patents, then they are not doing much creatively at all. In fact, what you are saying reminds me of the line, "Everything that can be invented - has already been invented" [blogspot.com] . Charles Duell, then USPO Commissioner said that to Congress in 1899 when he advocated the disbandment of the patent service because he claimed it was doing little to spur innovation. We know how right he was.

Re:Just a few things (1)

burnin1965 (535071) | more than 7 years ago | (#18187290)

The number of devices/programs you can actually create without running smack into someone's fool patent is very near zero.

And part of the reason for that are the large number of errors the USPTO makes. I believe 3.5% was quoted as the error rate when the USPTO performs internal reviews, however, the clown seems to dismiss the real world where "third-party requests for re-examination"..."are successful at having the subject patent either narrowed or completely revoked roughly 70 percent of the time. About 12 percent of patents are ruled invalid, while 58 percent are narrowed, and 30 percent upheld, according to USPTO statistics."

http://news.com.com/Microsoft+file+patent+faces+ex am/2100-7344_3-5232203.html [com.com]

The current error rate based on the USPTO rules is 70%!!! The system is borked.

burnin

Explain Please (0)

Anonymous Coward | more than 7 years ago | (#18187486)

Can someone explain to me the real issue with software patents?? Why can they or can't they be patented? As far as I know everyone goes back to the "You can't patent Math" reason. The fact that software is just a collection of math algorithms that are laid out for you to run seems a bit of a stretch. That is like saying that everything I "see" is just an electrical impulse. Or that because the Second Amendment gives me the right to bear arms, I should be able to have my own nuke or rocket launcher. Or that a car is just a fancy mechanical horse.

As far as the money "issue" goes, everything is done for money, otherwise it wouldn't get done. And please spare me the "doing it for mankind", there is always money in the equation.

Great! But... (1, Funny)

gardyloo (512791) | more than 7 years ago | (#18186172)

...I'm afraid I have prior art claims to that plan.

FP!

Re:Great! But... (1)

spun (1352) | more than 7 years ago | (#18186318)

I wonder, was there ever a leading official of a monastic order who was named Arthur? Seems likely, right? I wonder what Prior Art would have to say about all this...

Yes the key debate is like that over here in Europ (4, Insightful)

MemoryDragon (544441) | more than 7 years ago | (#18186200)

But only because US companies push a lot of money into the political chains to push the broken patent system of gentech and software upon the rest of the world. It is a shame what is going on here in Europe, the affected polticians dont even try to hide on who's paylist they indirectly are.

Try recent evidence maybe? (5, Interesting)

saskboy (600063) | more than 7 years ago | (#18186230)

"It's a proven system, over 200 years old."

Using that logic, we should all be using horses as our primary mode of transportation. Just look how proven and older that locomotion model is!

Why don't we use evidence from the world since the Internet was invented, and base our new system upon the modern world?

Re:Try recent evidence maybe? (1)

JM78 (1042206) | more than 7 years ago | (#18186432)

100% in agreement. Such a comment is quite transparent in its bias that it's geared towards justifying rather than addressing the issues. I wonder how many kick-backs he's getting for looking the other way...

Re:Try recent evidence maybe? (5, Insightful)

pavon (30274) | more than 7 years ago | (#18186466)

In addition, I am very sceptical of the claim that countries are modeling their laws after ours because it is a proven system. I'd wager that it has more to do with being required to have IP laws which are simular to the US and Old Europe in order to participate in various trade groups and treaties.

Re:Try recent evidence maybe? (2, Insightful)

Red Flayer (890720) | more than 7 years ago | (#18186632)

I'd wager that it has more to do with being required to have IP laws which are simular to the US and Old Europe in order to participate in various trade groups and treaties.
You hit the nail on the head with that one.

I'd just add that it also has to do with getting corporations with major capital to invest in your country. Who is going to offshore research to a country where the fruits of the research might not pay off as well as if the research were done in the US?

Draconian, big-capital-friendly IP laws encourage companies to spend research funds in your country. Without them, the US would see even more offshoring of research jobs.

Re:Try recent evidence maybe? (1)

Belial6 (794905) | more than 7 years ago | (#18186670)

Moving research off shore to keep others from doing similar work is a delay tactic at best. The reason is that most of these products will be sold in the US, so they must enter the country eventually. Now, that argument might work for a small country that might never see the product anyway, but not the US.

Re:Try recent evidence maybe? (1)

Red Flayer (890720) | more than 7 years ago | (#18186748)

Moving research off shore to keep others from doing similar work is a delay tactic at best.
It's not to keep others from doing similar work, it's to keep costs down.

If the company you're offshoring to has weak IP laws (and lack of an IP treaty with the US) then you don't want to offshore there. Countries want their IP laws to be similar to US law so that US firms (or multinationals with a big US presence) will consider them for product development/manufacturing, as well as a product market.

Loose IP laws == lack of foreign investment.

Perhaps... (1)

Belial6 (794905) | more than 7 years ago | (#18186948)

Perhaps I misunderstood your post: "Without them, the US would see even more off shoring of research jobs." How would a lack of IP laws in the US create even more off shoring?

Re:Perhaps... (1)

Red Flayer (890720) | more than 7 years ago | (#18187146)

Less of an incentive to keep your research in the US, where, due to IP laws, you have a greater assurance of being able to monetize your inventions.

This is from the perspective of a huge company (the ones who write the laws), not a small one.

Re:Try recent evidence maybe? (2, Insightful)

skoaldipper (752281) | more than 7 years ago | (#18186702)

> Why don't we use evidence from the world since the Internet was invented, and base our new system upon the modern world?

What about our current Constitution? It's over 200 years old and a proven system. Would you replace it and start from scratch as well?

I think Dudas' claim here is a valid one. Just like our own 200+ year old governing documents, the patent system has undergone changes over time as well as our own government. It adapts to the times.

I think the problem is they have been severely swamped in recent decades - 400,000 last year alone. With 5500 PEs, that's about 70 patents per PE/year (or 1 patent review every business week). Plus, they are backlogged 700,000 more. Hire more officers and they'll meet people's expectations here. They have a 3.5% error rate, and he's striving for zero (though by own admission will never occur). More personnel will help in that end. The USPTO works. If not, what's your alternative? Seems time proven and quite adaptable to me.

Re:Try recent evidence maybe? (3, Interesting)

Red Flayer (890720) | more than 7 years ago | (#18186864)

What about our current Constitution? It's over 200 years old and a proven system. Would you replace it and start from scratch as well?
Yes, yes I would. The Constitution is no longer a living document, and it doesn't reflect the current (in)capacity of Americans to govern ourselves. It is designed for less than 30,000:1 federal governance ratio -- it's the lack of accountability due to massive accretion of power in a few hands that has destroyed any semblance of non-corporate control.

What we need to do is rebuild the system from scratch, forcing the huge government bureaucracy and the corporate masters it serves to re-entrench itself whilst under REAL citizen oversight*.

*I know, if wishes were horses, beggars would ride. But I still think that a ratio of 6.*10^5 people to 1 representative is phenomenally oversized. Let alone an average of 3*10^6 : 1 for the Senate.

Re:Try recent evidence maybe? (1)

skoaldipper (752281) | more than 7 years ago | (#18187398)

> But I still think that a ratio of 6.*10^5 people to 1 representative is phenomenally oversized. Let alone an average of 3*10^6 : 1 for the Senate.

Interesting. I never really looked at our own representation (or lack thereof) with that perspective. Then, are you suggesting we need more reps? I would tend to agree. If so, then Duda is merely requesting the very same here with more PEs.

Re:Try recent evidence maybe? (1)

rubycodez (864176) | more than 7 years ago | (#18187182)

oh, so a slave is worth three-fifths a normal human being? the constitution has undergone HUGE changes since it was first written. where is the corresponding self-improvement mechanism for the patent system? Admitting there are now new things that the patent system improperly addresses (like this newfangled computer software thang) is a first step to such an improvement.

Re:Try recent evidence maybe? (1)

skoaldipper (752281) | more than 7 years ago | (#18187674)

> the constitution has undergone HUGE changes since it was first written. where is the corresponding self-improvement mechanism for the patent system?

I do agree there has been an explosion of technology since 1990. Self improvement mechanism? The USPTO has shown remarkable resilience over it's 200 year history.

Pasteur - pasteurization
Edison - phonograph, light bulb, and (literally) thousands of other revolutionary concepts in his period.
Alexanderson - radio
Faggin - CPU
Evans - steam engine
Hollerith - every CS student should know him.

etc.

By these examples, wouldn't you agree "self improvement" is self implied here?

> this newfangled computer software thang

There's nothing particularly unique about software patents, nanotechnology, or whatever else you could throw against the USPTO that it hasn't handled with distinction in the past since it's inception. How are modern day revolutionary technologies any different than those I already cited above? The Patent Examiners (PE) _are_ comprised of scientists, artists, and every other profession imaginable. As Duda cites, he just needs more of them.

On a historical note, the USPTO had a fire in 1836 and some 10000 papers, books, and models were all destroyed. Talk about a back log. It survived that. Surely, it can survive far worse. Both Thomas Jefferson and Madison _insisted_ from the very beginning that IP rights be safe guarded by the Constitution. Hey, I'm no Jefferson, but I fully respect and defer to his better judgement over mine (now and in the future) - whether we apply IP patents to Software, spaceships, or even fembots.

Re:Try recent evidence maybe? (1)

rubycodez (864176) | more than 7 years ago | (#18187718)

but software patents are nothing like the other IP, we're talking about mathematical algorithms, basically. nonsense to call that patentable IP. And the Patent Office has made a disaster of that, software can and should be copyrighted but that's it. anything else is as absurd as the patent of scientific principles

Re:Try recent evidence maybe? (1)

saskboy (600063) | more than 7 years ago | (#18187304)

"What about our current Constitution? It's over 200 years old and a proven system. Would you replace it and start from scratch as well?"

Perhaps, it does have a lot of ammendments. Plus, things Bush has done, and legislated into existence, violate the spirit and wording of the Constitution. Yet most Americans support Bush, right ;-)

Seriously though, the Constitution is the supreme law in the land, and is a philosophy for all laws under it. The patent system is based on a philosophy that may not apply in a world with digital copies, and global instantaneous communication, and off-shore manufacturing.

Re:Try recent evidence maybe? (1)

Maxo-Texas (864189) | more than 7 years ago | (#18187356)

Our current constitution really serves a very tiny power elite.

You are allowed to pick one from column A or column B.

Your choice of column A or B was chosen from a pool of people who sold out to corporations for money and agreed to work with the existing power structure.

We haven't had a real democracy since the 1960's.

But at least they don't torture to many of us even tho they do incarcerate us at a higher rate than any other country in the world.

Re:Try recent evidence maybe? (0)

Anonymous Coward | more than 7 years ago | (#18187386)

>"It's a proven system, over 200 years old."
>
>Using that logic, we should all be using horses as our primary mode of transportation. Just >look how proven and older that locomotion model is!

Not only that - it's plain wrong. The patent system as invented in Europe had the goal to encourage sharing the ideas behind inventions, so they won't remain a secret of the inventor and may get lost once he dies or his factory burns down. Nowadays nearly unthinkable, given the present possibilities to examine products (and copy them as fast as possible somewhere in Asia).

The idea someone would have the exclusive right on an idea (be it because he had it putatively first or claimed so first) is entirely stupid, wrong and wasn't the original intention behind patents.

Copyright (and a quality product) is all you need to shield yourself from dishonest concurrents - unless you're dishonest yourself.

Re:Try recent evidence maybe? (1)

lennier (44736) | more than 7 years ago | (#18187566)

"Using that logic, we should all be using horses as our primary mode of transportation. Just look how proven and older that locomotion model is!"

And when the oil runs out, we'll find out just how durable our 100 year love affair with wheeled internal-combustion transport was, and just how dumb our plodding old ancestors were with their renewable bio-technologies.

It would be nice if us IT types learned to have maybe a slightly more long-term view of the world than the next Patch Tuesday.

Gamasutra and per-patent fees (5, Interesting)

PIPBoy3000 (619296) | more than 7 years ago | (#18186276)

Gamasutra [gamasutra.com] had a good article on this recently. The thing that caught my eye was that the patent office is supported by fees collected for each patent application. They had a signed framed that read Our Patent Mission: To Help Our Customers Get Patents.

To me, that speaks volumes. Any system with an incentive to do crazy things, tends to do crazy things over time. In this case, the goal is to get as many patents issued as possible, so that more people patent odd things and more money flows into the patent office. Break that incentive and people might start behaving rationally again.

Re:Gamasutra and per-patent fees (3, Insightful)

AndersOSU (873247) | more than 7 years ago | (#18186382)

Not a chance. The patent game is being played by major corporations firing volleys of offensive and defensive patents at each other. They are certainly not swayed by the fee structure of the patent office, they spend far far more money on their corporate lawyers. The way to break the cycle is to stop granting stupid patents.

Re:Gamasutra and per-patent fees (1)

styrotech (136124) | more than 7 years ago | (#18186770)

You missed his point.

The way to break the cycle is to stop granting stupid patents.

Yeah, but his point was that will never happen while the patent office is funded by the granting of patents. There is an incentive to grant stupid patents.

Re:Gamasutra and per-patent fees (4, Interesting)

Floritard (1058660) | more than 7 years ago | (#18186438)

This was mentioned in a computers in modern society course I splept through in college. Something about the government shutting off funding to the patent office and telling it to fund itself. I believe this happened fairly recently, as in almost coincident with the widespread practice of patenting software. What timing...

Broken systems (1)

PIPBoy3000 (619296) | more than 7 years ago | (#18186586)

Lots of systems "break" when the incentive for folks is to behave a certain way. In many cases, it's unexpected and unpleasant.

For example, one could argue that lawyers have an incentive to not settle and to draw out a case as long as possible, assuming their client has the means to pay. Since they're paid by the hour, they want to "milk" their client as long as possible. Going to court is the way to do that.

Another is doctors, who get paid per procedure they do, regardless of how necessary it is. There was a movement years ago with HMOs trying to manage this excess, but patients kept clamoring for the latest treatments and newest drugs, even if the evidence of effectiveness was minimal. Now I have my dentist wanting to fill every tiny groove in my teeth, even though I've had perfect teeth my entire life (my dad was a dentist).

On the other hand, there's typically counters to that incentive. Going to court is unpleasant, which is why my mom would always try to settle (she made her money with high-volume, low-cost council). Once my last dentist started going bonkers with procedures, I quit and switched to someone else. I'm not sure what it is for the patent system, though. It's pretty bad these days.

Let me tell you what I know... (5, Interesting)

Kadin2048 (468275) | more than 7 years ago | (#18186940)

I know a guy who worked as an examiner at the patent office. It's basically like working on a factory assembling line. Everything is based off of how many applications you can process. I think that new examiners are expected to do 2 or 3 patents a week, if you want to stay ahead and get promoted. Don't do your quota, you don't get promoted, and maybe eventually you get fired (but it's a government operation so let's not get too ridiculous here).

But basically, 2 or 3 patents need to cross your desk a week, and either be accepted or sent back. That means you can give each one maybe two days. That's two days to do all the research, and look for all the prior art, and make a judgment call. That's nothing on some of these patents, which can be hugely technical, particularly when the people filing them can take all the time they want to obfuscate their intentions and tweak the language to make them as broad as possible.

And here's the best part: if an examiner rejects a patent and sends it back to the applicant, and then the applicant sends it back in with updates, that updated application doesn't count towards the examiner's quota. So there's an obvious advantage towards accepting applications, because that's the absolutely sure way of getting it off your desk and making sure that it's not going to come back to haunt you later.

Anyone see anything wrong here?

Re:Let me tell you what I know... (1)

PatrickMMoore (984350) | more than 7 years ago | (#18187710)

I left the patent office in November of 2006. This is accurate. A newbie examiner must complete a count in 22.55 hours, which means roughly 4 counts must be turned in per biweek (80 hours in the real world). A count is collected when one of the following happens:
1. First Action (pick up a case and send applicant a non-final rejection)
2. Allowing the application (to become a patent)
3. Make them pay more money by filing a Request for Continued Examination (RCE)

This includes searching, arguing and verifying correct structure/content/layout.

"How's your production?" is the question to gauge the quality of someone's biweek and ending weekend will be.

Tiny correction... (4, Insightful)

muecksteiner (102093) | more than 7 years ago | (#18186280)

I have traveled around the world, and every nation is thinking how it can model [intellectual property governance] after the U.S.

should probably read

every nation that we can strong-arm into accepting our rules is modelling its IP governance after the U.S.

If he were honest, that is.

But not being a particularly honest person was probably a job requirement for his position, though.

A.

Re:Tiny correction... (1)

kocsonya (141716) | more than 7 years ago | (#18187020)

Not necessary, it is just a question with whom he was talking. Big company reps and the politicians in their pockets will want to follow a system that has been evolved for 200 years to specifically serve the abovementioned subset of people.

Re:Tiny correction... (1)

MadAhab (40080) | more than 7 years ago | (#18187572)

Correct. And to the extent it's not about who we can strong-arm - I don't think we should be bragging that corrupt economies envy our patent system for its ability to restrain competition and provide opportunities to extort deep pockets.

It's broken. Fucking stupid broke. 1-click shopping. QED.

This guy is a dipshit. IP law has run amok, to the point that even the leaders of industry know it (major media companies excepted). To name just one example of hundreds, the vast majority of the pre-1936 movies are such well-protected intellectual property that absolutely no one will ever see them again, while the last copies rot in studio vaults. IP law is supposed to be a quid pro quo - companies get an unnatural right, an artificial monopoly, and in return they *give* their fruits of their labors back to the common good after a time. The second half of that bargain has not been lived up to in the US. Software patents amount to getting something for nothing; the endless extension of copyright is an explicit poke in the public's eye (Eldred was a shameful decision that says "forever minus a day" is not infinite).

Yah, right (5, Insightful)

pembo13 (770295) | more than 7 years ago | (#18186282)

'I have traveled around the world, and every nation is thinking how it can model [intellectual property governance] after the U.S,' Dudas said.

Nice spin. I think he means nations are afraid of not modeling their system after the US since the US has proven time and time again that whatever needs to be done to have their way will be done.

Re:Yah, right (3, Funny)

Anonymous Coward | more than 7 years ago | (#18186322)

Have you ever considered the US may be right every single time. Its for the best. Wait till we get you off the metric system.

Well... (4, Insightful)

C_Kode (102755) | more than 7 years ago | (#18186290)

'I have traveled around the world, and every nation is thinking how it can model [intellectual property governance] after the U.S,' Dudas said. 'It's a proven system, over 200 years old.

Just because it's a proven system over 200 years old, doesn't mean it still functions today the way it was intended 200 years ago. Hell, I don't bank the way I did five years ago. Times change and a huge part of why it doesn't work is that almost everything has changed along with it.

Life's parameters change. When that happens the algorithm that governs it sometimes must change too.

It's a proven system, over 200 years old (1)

chiasmus1 (654565) | more than 7 years ago | (#18187504)

It's a proven system, over 200 years old

So was slavery, but finally we began to see the light. We have overcome [wikipedia.org] our narrow mindedness. Many of us still have a dream where inventors and developers can invent and develop together without fear of litigation.

Jon Dudas = Don Judas. (2, Funny)

pruneau (208454) | more than 7 years ago | (#18186332)

Anybody else spotted this ?

Bullshit! (3, Insightful)

judd (3212) | more than 7 years ago | (#18186368)

"every nation is thinking how it can model [intellectual property governance] after the U.S"

Other nations are thinking about it because of heavy pressure from the US to comply with the US model. That pressure comes in turn from lobbying of US govt by US businesses. In no way are other countries spontaneously saying "Hey, what a neat model!" Absent US pressure for trade agreements etc we would keep the status quo, or even free up current regimes.

World = Where exactly ? (3, Insightful)

CmdrGravy (645153) | more than 7 years ago | (#18186378)

I have traveled around the world, and every nation is thinking how it can model [intellectual property governance] after the U.S
Aparently he hasn't visited the UK or the EU lately then who, as read on ./ earlier this week, are moving to specifically prevent software patents.

If I were a betting man, and I bet you I'm not, I'd say he's spoken to people throughout the world who already agree that much tighter intellectual property laws are required who may coincidentally talk a lot to large corporations, many of which may be US based, who would like to protect their profits and don't have any reason to consider the social side of intellectual property legislation.

Also to say that the rest of the world is currently so awestruck with the benefits brought by US intellectual property legislation as it currently is wouldn't appear to be a good reason for suggesting changes to that legislation.

Correction (3, Insightful)

organgtool (966989) | more than 7 years ago | (#18186508)

'I have traveled around the world, and [every corporation in] every nation is thinking how it can model [intellectual property governance] after the U.S,' Dudas said. 'It's a proven system, over 200 years old.'
There, I "truthified" what Dudas was trying to say. Regarding the part about the patent system being proven for the past 200 years, software has only been involved in that system for a few decades and it has hardly been "proven." Maybe by "proven" he meant flooding the courts with frivolous lawsuits over patents that should never have been granted in the first place.

200 years? It's closer to twenty. (5, Insightful)

Jaywalk (94910) | more than 7 years ago | (#18186542)

It's a proven system, over 200 years old.
You might want to check up on your history [bitlaw.com] . Parts of the patent system may be a couple of centuries old, but software patents aren't in that class. Until 1980 the Patent Office didn't allow software patents at all until it was forced to do so by the Supreme Court. Even that wasn't really a "software patent" in the sense that Amazon's one-click patent [cnn.com] is; it was just a computer program that was part of a larger invention. Unfortunately this bone-headed decision has blurred the long-established principle that ideas can't be patented. Since computer code is basically just the instantiation of an idea, software patents make ideas patentable. That has led to further deterioration by allowing things like business methods to be patented. So now you even have these clowns [plotpatents.com] claiming that story plot lines can be patented.

The "200 year old" system he's bragging about worked fine. It's the recent introduction of changes to that system which have caused the problems.

Re:200 years? It's closer to twenty. (1)

autophile (640621) | more than 7 years ago | (#18186732)

Since computer code is basically just the instantiation of an idea, software patents make ideas patentable.

Whoops, you just handed the IP gnomes a weapon. The proper statement is, computer code is just one of many descriptions of an idea. Descriptions are trademarkable. Instantiations are patentable.

--Rob

Re:200 years? It's closer to twenty. (1)

Brandybuck (704397) | more than 7 years ago | (#18187068)

"The "200 year old" system he's bragging about worked fine. It's the recent introduction of changes to that system which have caused the problems."

That's essentially what he's saying. Parts of the system are imperfect, but as a whole it's working fine, so let's not throw it all away just because you have a problem with software patents.

Where was the part about reform? (1)

Peter Trepan (572016) | more than 7 years ago | (#18186660)

Was it the part about doubling their staff?

Was it the part about "more and better information"...

"We have to get more and better information and make sure the examiners have the right tools and information to make the best decisions."

...where the "more and better information" consists of assertions by applicants?

Favorite Quote FTA (5, Informative)

paladinwannabe2 (889776) | more than 7 years ago | (#18186664)

With the more open environment, companies and individuals could more easily game system, loading up examiners with more and more information from friendly or unfriendly parties. "We certainly can't allow having more information come in and harrassing the applicant, and we can't hold up the timing of application processing," Dudas said.

Because when you're trying to get a patent approved, the last thing you need is people pointing out the prior art, or people double checking your 'facts'- those things are harrassment and hold up the timing of application processing!

Re:Favorite Quote FTA (1)

physicsboy500 (645835) | more than 7 years ago | (#18186944)

This is a reference to the quality of the work the examiners are able to do. If things are done right by the examiners the first time they don't have to cite prior art after prior art in several office actions that take longer to litigate. What is meant is if the examiner gets proper information from the entity filing right off the bat, then it is much less likely that the applicant has to spend more money answering to his lawyer to respond to office action after office action. This truly is a push for the little guy as the process is made less expensive and faster

The problem arises when the unfriendlies arrive and try to get a known bad patent issued by giving the examiner either way too much information to process or no information at all so everything has to be looked at. Sure it will cost the applicant more, but they run the risk of getting something that shouldn't be patented, a patent and they know it.

Dudas is simply pushing for a way to increase applicant liability for including prior art, thus increasing the quality and efficiency of the work coming out of the PTO.

Interesting, but... (1)

paladinwannabe2 (889776) | more than 7 years ago | (#18187680)

Examiners obviously aren't getting proper information right off the bat.
Increasing applicant liability for prior art doesn't help the little guy- he's too busy to read through existing patents, and can't afford a lawyer to do it for him.
I'm confused about how unfriendlies can help get a known bad patent issued. Does 'too much information' hurt an examiner? Are you referring to patents that are poorly written? Those should just be rejected. If you are referring to other people providing information outside the patent, I fail to see how those can help push a patent through. What are you going to do, gush on about how it's the best thing ever written? It's alot easier to point out prior art than it is to show there is no prior art.

Well, it's consistent anyway (2, Funny)

NewToNix (668737) | more than 7 years ago | (#18186742)

On July 31, 1790 Samuel Hopkins was issued the first patent for a process of making potash, an ingredient used in fertilizer.

It was all about bullshit then, and it still is.

Drug Patents (3, Interesting)

TheWoozle (984500) | more than 7 years ago | (#18186750)

While we're at it, maybe we can also deal with one area where patents work *too* well: drug patents.

The problem with drug patents isn't that they stifle innovation: it's that they encourage the *wrong sort* of innovation. After the patent on a useful and effective drug expires, it is quickly manufactured as a generic and profitability drops (which is exactly what the point of a patent is in the first place). Great.

The problem comes in when drug companies spend their R&D on creating new drugs that treat the exact same conditions as already existing drugs - just because they'll have another patent and therefore another (however short-lived) monopoly on the drug, which equals large profits.

Mafia lays out reform strategy (1)

Rogerborg (306625) | more than 7 years ago | (#18186812)

The fact that the Triad and Yakuza are modelling themselves on our proven practices shows that we just need to be having a debate about how we can better... "protect"... our "customers".

Misleading Summary (2, Interesting)

servognome (738846) | more than 7 years ago | (#18186892)

The summary implies maintaining status quo, when really what is being stated is maintaining the framework, with tweaks to improve the process. Patents are not broken, the system for issuing them is.
From reading the article there are many benificial changes that are being looked at. The most important IMHO is more open review:

Allowing third-party information to be contributed to patent cases is another of the area of improvement at the front end. "We want to give third parties the opportunity to give information to the USPTO," Dudas said, "so the examiner has information from their own research, the applicant and from third parties. When examiners have all information, they almost always make the right choice."

Re:Misleading Summary (1)

QuantumG (50515) | more than 7 years ago | (#18187360)

Patents are government issued monopolies... that's more than "broken", that's wrong.

This dude just doesn't get it. (2, Interesting)

Anonymous Coward | more than 7 years ago | (#18186918)

What is it about the word "broken" that the head of the Patent Office doesn't understand?

The patent system is broken. Consequently, the numbers that he's using to justify the existing system are totally bogus. You can't measure the stifling of innovation by using a broken system. You need a completely different approach.

Software used to be a highly innovative field back in the 1980s. Anybody could develop a new software system out of their house and become millionares. In fact, many people did, and we have those companies around today (let's see, Microsoft is one).

How many are happening now? Darned near 0. That's because anybody who comes up with a successful product is guaranteed to be sued as soon as they get some money in their pocket. Or if they look like they are remotely a threat to an existing big company. Unless, maybe, you get Venture Capital; but even if you do, you're going to have to spend a good chunk of that money on lawyers, and not developers.

This is not how to encourage innovation. This is how to discourage it. Heck, I doubt you could even build the Internet again today, because instead of the open RFC process you'd have to worry about some clowns promoting things based upon submarine patents (ala Rambus).

The head of the Patent Office just doesn't understand reality. He's completely out of touch with what's going on. We need help if we're ever going to restore innovation to the marketplace, and because this dude thinks things are OK, we're just not going to see innovation restored to the software field any time soon. And probably not even in our lifetimes.

What's in a name? (0)

Anonymous Coward | more than 7 years ago | (#18187000)

jeevesbond writes to tell us that Jon Dudas, of Camptown Races fame, is planning to re-invent himself as an R&B song.

look who's talking (1)

DriveDog (822962) | more than 7 years ago | (#18187086)

Dudas's past might have suggested he would come up with such an obviously ridiculous claim (looks like he was involved in DMCA, for example).

Fixing it differently... (1)

Infinityis (807294) | more than 7 years ago | (#18187186)

Instead of trying to fix it in the patent office (which would be near impossible, although it would certainly help) I think the system would be better fixed in the courts. Just pass legislation that says "If a patent holder sues an alleged infringer for $X and loses, the winner is entitled to an award of $X from the loser."

This would automatically place a reality check on the award amounts, and even reduce the number of patent cases brought into court in the first place. It'd be like betting on your odds of success in the courtroom, balancing out the risk/reward ratio for patent trolls.

"I know what you're thinking. 'Did he file six patents or only five?' Well, to tell you the truth, in all this excitement I kind of lost track myself. But being as this is a high profile patent case, with the most powerful legal team in the world, and would blow your business into bankruptcy, you've got to ask yourself a question: Do I feel lucky? Well, do ya, punk?"

And his point is ... ? (1)

overshoot (39700) | more than 7 years ago | (#18187258)

I have traveled around the world, and every nation is thinking how it can model [intellectual property governance] after the U.S,
Well, yes. One might take into consideration, though, that the USA has promised to hurt them badly if they don't.

IP Law Imperialism (1)

J'raxis (248192) | more than 7 years ago | (#18187448)

I have traveled around the world, and every nation is thinking how it can model [intellectual property governance] after the U.S.
Yeah, that's because as with most free trade agreement treaties put out by the West, countries are forced to "harmonize" their intellectual property laws with Western standards lest they not be allowed to participate. One large example [wikipedia.org] of one of these treaties; there've been other bilateral ones the U.S. has all but forced on developing countries.

Is XY? (0)

Anonymous Coward | more than 7 years ago | (#18187538)

The test I'd like is this:

X) How long would it take to make a profit from this invention.
Y) How long would it take to copy this invention.

The concept of whether something is patentable is only for X>Y inventions.

So software, trade secrets protect the inner workings, Y is large, low production & duplication costs, X is small. Software fails this test.

New complex drug, the chemistry can be analyzed easily Y is small, the approval time is long, X is big. Allow patents.

it's not 200 years old (1)

markhahn (122033) | more than 7 years ago | (#18187588)

the US IP system you see today is certainly not 200 years of success - in fact, the founding fathers wouldn't recognize it. they also wouldn't, IMO, consider it at all successful. it's not even clear whether we could have gotten to where we are today (western sci/tech success) if today's system _had_ been in place since
the 1700's. dramatically many fundamentals of today's world would never have happened, or at least not happened in any recognizably similar way. (Unix, internet, X, browsers, ICs, transistors, computers, software, compilers, etc.)

200 years old isn't that long of time span (0)

Anonymous Coward | more than 7 years ago | (#18187744)

The patent system as hurting innovation is a the right way to frame the debate. ideas frequently don't make it to market, and others can have the same idea and not be allowed to use it. Clearly the patent office is high on drugs.
Load More Comments
Slashdot Login

Need an Account?

Forgot your password?

Submission Text Formatting Tips

We support a small subset of HTML, namely these tags:

  • b
  • i
  • p
  • br
  • a
  • ol
  • ul
  • li
  • dl
  • dt
  • dd
  • em
  • strong
  • tt
  • blockquote
  • div
  • quote
  • ecode

"ecode" can be used for code snippets, for example:

<ecode>    while(1) { do_something(); } </ecode>