Tuesday, January 03, 2006

The Patent Epidemic

The mainstream press is paying more and more attention to patent system abuse, as is evidenced by a BusinessWeek editorial dated January 9.
How to determine when an invention is "obvious" is one of the most critical and contentious issues in patent circles. Over the past two decades, critics say, the hurdle for passing the obviousness test has been steadily lowered, and the U.S. is now awash in a sea of junk patents.
There are several appealing solutions that address the 'obviousness' problem, among them the independent invention defense and premature expiration for lack of usefulness.

The article continues:
A coalition of businesses...and...two dozen intellectual-property law professors have made a similar filing. Massive overpatenting, the professors say, "creates an unnecessary drag on innovation," forcing companies to redesign their products, pony up license fees for technology that should be free, and even deter some research altogether. [links added]
And concludes:
The bottom line: Rulings rejecting patents on the basis of obviousness are rare, and massive overpatenting continues to be a thriving business.
Well said.

Take action on this issue: write to your Senators and Congressional Representatives (feel free to cut and paste any text from this or any article at Right To Create -- you may find the text on the independent invention defense or premature expiration particularly easy to use as the body of a letter to your elected officials).


Blogger A. B. Dada said...

Good thoughts -- we should chat offblog to share some stats and information.

I firmly believe that any law used to protect content (copyright, patent, IP, etc) will always end up in the hands of the abusers, not the content creators. Your push to get voters to change this will likely do nothing.

I push to get content creators to dump copyright, GPL and other coercive "rights" and just release their information freely. The few who have listened have found themselves more popular and earning a better income, especially in the music and writing areas.

Voting won't make things better, it will only let those in power have even more power over what we create.

10:23 AM  
Blogger logicnazi said...

The problem with the independent invention defense is that in some cases it is the fact that there is something to invent which is the big step. If everyone else believes you are crazy to try and transmit information through invisible waves in the air and you take years on your own to develop this technology you genueinly deserve patent protection.

However, if once you have shown a usefull invention in this area is possible the big companies can come around and reinvent the item and avoid your patent there is a lot less incentive for research. Once you know what types of research will produce a usefull invention it is easy just to throw researchers at them.

However, if you mean that in those cases where a company can prove they invented the item without even knowing about the patent they are claimed to infringe then I agree this would be a good reform. The problem becomes how would this end up working in the real world. How could a patent holder ever show that some guy on the project glanced at their product? Conversly doesn't this provide a strong incentive for companies to purposefully ignore what patents are out there to avoid being thrust back into the position of being unable to make a technology because some obvious component is patented.

10:59 AM  
Blogger Jackson Lenford said...

a.b. dada said: "I firmly believe that any law used to protect content (copyright, patent, IP, etc) will always end up in the hands of the abusers, not the content creators. Your push to get voters to change this will likely do nothing."

The key to good power structures is balance. Letting our elected officials know that we care about their decisions can be more effective than spending millions on lobbyists if enough of us participate -- that's the key to introducing balance back into the system, and it really is one of our only options.

While I'd love to mire myself in hopeless skepticism about our political system, throw my hands up in the air, and wait for a revolution (and then start the cycle over again) -- I think it is infinitely more prudent to exhaust our options and work towards fixing what is broken. A few well-placed letters can go a long way towards this goal.

11:08 AM  
Anonymous k3nni said...

logicnazi said: "The problem with the independent invention defense is that in some cases it is the fact that there is something to invent which is the big step."

Arguably, those items shouldn't be patentable either. Can you think of an example where it should be patentable? The "usefulness clause" already excludes these.

For example, suppose my big idea is assymetric encryption -- but I don't know how to make it work. So should I file a patent that claims "an encryption method using two keys, one secret, one public, wherein either key can encrypt but only its pair can decrypt" without ever figuring out how to do it? Without figuring out that either the factoring of large primes or elliptical curve functions could be used to implement it? So I should just file my application before Rivest, Shamir, and Adelman figure out the large-prime thing and actually make it work, then collect money from them?

Or maybe my big invention is the atom bomb? I read somewhere that an incredible force would be released if you could split atoms (known for many years before anyone showed it could be done), so I file a patent that claims "making 'splosions by breaking apart atoms", but have no idea how to actually do it? Then, once again. wait for someone to figure out how to split atoms, and BINGO! PROFIT FOR ME!

I'm not saying you aren't right -- I just can't think of an example in your favor. Maybe you can give us one?

11:25 AM  
Blogger bigpicture said...

Exactly, everything is obvious to someone, somewhere. It is the non-obvious ideas that had to be demonstrated as workable through investing time and money that are even worthy of patentability. So in this regard it is not just an idea, but only an actual discovery that should be patentable. Radio is possible through modulation of carrier with information, and there are different modulation types. Now if I use the modulation of carrier principle in other applications, using other types of carrier media, such as light waves instead of radio waves, and fiber strands instead of open space. Should this modulation carry a different patent?

11:28 AM  
Anonymous John_A said...

Like everything else in law, making rules creates winners, losers and criminals.

As a patent holder myself, I regard it as very important that patent protection is upheld. However the problem comes not with tangible things like a better mousetrap which everybody agrees should be patentable in some form, but patents whose sole purpose is to claim total rights to any form of mechanical rodent capture by whatever means.

That's the abuse. Once software patents became allowed, then there was nothing tangible, not even code, to be applied to a patent. So it became the concept of what the software is supposed to do, that is unique.

Imagine if Karl Benz had patented the concept of multi-wheeled vehicles powered by combustion engines.

Such patenting of ideas is not possible in Europe (thank God) because it would clearly setup roadblocks to the normal functioning of a market economy.

When I applied for my patent, I had to be specific and non-obvious. I had to make a step or steps in the design that nobody had thought of before. I had to prove that my patent was tangible.

The US Patent system is a mess, and the only people benefitting are lawyers, not companies and not entrepreneurs. That's why you'll expect the strongest objections to changing the rules from law firms.

11:54 AM  
Anonymous Anonymous said...

OMG!!! I just used a Nail file and Nail Clippers together to get a cleaner nail!!!! I'm going to patent it and sue the pants off anyone who uses my idea without paying me $1000 dollars!!! MUAHAHAHA!!!

-It's time to start a petition to reform patent laws, Right to Create, becuase if I hear one more stupid American trying to screw my Liberties with their dumb patent, I'm moving to Canadia.

11:54 AM  
Anonymous Anonymous said...

As someone who makes a living off patents, I say you can take these ideas and punt.

If you don't like it, you come up with the idea first and then you can give it away to everyone you want.

12:14 PM  
Anonymous Anonymous said...

By the way, your premise is a little misrepresentative: For most of world history, an individual could invent at will, using any idea that they encounterd or that occurred independently to them.

No one is stopping you from inventing and creating anything you want. You just can't go out and SELL it to OTHERS and PROFIT from that sale.

So unless you're the same money grubbing weasel as the one who filed the patent, it shouldn't present a problem to you.

12:19 PM  
Blogger Russell said...

US Patent law prohibits even experimenters from infringing patents. You can't build even one patented device without permission. As a practical matter, nobody bothers to go after backyard infringers, but it's still illegal.

1:11 PM  
Anonymous José said...

Congratulations. I believe this is very important work you are doing. Advocating freedom to create is the only principled and coherent stance in the intellectual property debate. On more utilitarian grounds, freedom to create may be what allows the human race to continue to increase its well-being through more efficient division of labor and higher productivity of labor.

The abolition of the "peculiar institution" that is the patent system and intellectual property rights in general will no doubt threaten the livelihoods and economic interests of many individuals so resistance--even violent resistance--is a given. But no matter what the "pragmatists" may say, I believe that we can "get there from here".

1:15 PM  
Anonymous Keong said...

I think that property rights are important enough that you can't simply do away with them, but it's just as important to structure those rights correctly, e.g. to avoid the anti-commons problem, which is similar to what you describe as 'chilling effects', so that society as a whole can still make good progress.

See also this Google search for some good references to this problem.

7:32 PM  
Anonymous Anonymous said...

how about some ways we can help

9:00 PM  
Anonymous Anonymous said...

anonymous said: "how about some ways we can help?"

See the last paragraph of the article -- write to your representatives.

7:44 AM  
Blogger Jackson Lenford said...

For some additional activities you can do to help the cause, see the suggestions at the end of this post, or this one.

7:48 AM  
Anonymous Anonymous said...

so what exactly is "right to create"?

Some of the posts indicate a patent abolitionist stance. The official mission states that a goal of fighting abuses in the patent system.

No one in their right mind can deny that abuses exist and should be eliminated.

On the other hand the abolitionist stance seems a bit extreme in a post-industrial society. China and Russia are strengthening their IP rights in order to allow for their technological infrastructure to develop.

They are coming out of the morass that IP abolitionists preach toward.

So what exactly gives here?

A coherent mission or a sophmoric rant against anything that other people own that I can't have?

8:12 AM  
Blogger Jackson Lenford said...

Right to Create's mission is exactly what is written in the byline of the site and in the explanation in the right hand column: to strengthen individuals' rights of invention, creation, and expression, and to expose and fight against patent system and copyright abuse that restrict those fundamental rights.

We don't take the position that we should abolish the patent system, mainly because that position is impractical and unworkable today. We are, however, very interested in discussing such a scenario, its potential benefits and negative consequences. I find the work of folks like D.K. Levine and Stephen Kinsella to be very persuasive in this regard. You could say I am sympathetic to their positions.

But as for trying to establish some patent-free utopia? No. Right to Create was established to promote meaningful debate on the subject, hopefully leading to meaningful reform of our intellectual monopoly systems in order to weed out as much abuse as possible. In order to persuade people to move a bit from a very commonly held IP-maximalism and more towards a middle ground where individual rights are balanced with societal good, we do like to expose our readers to arguments held by IP-minimalists, and even to 'dangerous' ideas like getting rid of patents altogether.

We are very interested in disabusing people of the notion that patents are the only means of encouraging invention, which is a rather naive position when you look at either the historical record or at present-day innovation.

I certainly hope that all this doesn't sound sophomoric or incoherent, but I certainly appreciate any feedback. If you can point out instances where the "Right to Create" message is incoherent, please do so -- I'd like to clean these up and speak with 'one voice' as much as possible.

10:47 AM  
Anonymous k3nni said...

quoting Anonymous: "China and Russia are strengthening their IP rights in order to allow for their technological infrastructure to develop."

Other parts of the developing world are more astute as to what instituting an oppressive intellectual property regime does. Look at Brazil and India, for example. They are on to our game of convincing countries to adopt our own copyright/patent laws, which helps us much more than it helps them. It puts them at a decided disadvantage, in fact.

Clinton just set up an HIV treatment program in China. The drugs will come from India at about 1/1000th the price that they are available here in the US. The irony? Most users of these medications in the US can't afford them, and many insurance companies won't pay for them either. So who pays? Medicare/medicaid. This amounts to a massive government subsidy to very rich pharmaceauticals who, in many instances, didn't develop the drugs in the first place.

10:58 AM  

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