Sunday, January 01, 2006

Premature Patent Expiration for Lack of Usefulness

In earlier days, inventors were required to submit working copies of their invention along with their patent application to the USPTO. The purpose? To prove 'usefulness,' which the patent office defines as:
the condition that the subject matter has a useful purpose and also includes operativeness, that is, a machine which will not operate to perform the intended purpose would not be called useful, and therefore would not be granted a patent.
Submitting working physical instantiations of inventions is largely impractical today, and so "usefulness" has become a subjective criteria, determined by a lone patent examiner on a case-by-case basis. It has been argued that this subjectivity has greatly contributed to the decline of patent quality, with many patents granted each year for 'inventions' that don't yet exist in the real world, filed by 'paper inventors' who have no intention of ever actually creating their "inventions," but rather lie in wait to sue anyone who independently arrives at the same idea and tries to sell some product based on it. Such patents have become the main fuel source for litigation instigated by patent trolls.

Reinstituting the requirement to submit a working instantiation is impractical. But there is a fix for all this: Automatic, premature expiration of patents that don't, within some fixed timeframe, have either 1) a corresponding product in the market place or 2) a licensee.

Under such a reform, the inventor could produce the invention himself, or pitch it to industries that might be interested in manufacturing it themselves. The additional hurdle to the inventor is not great; at worst, he would need to build one working copy of his invention and put it on his own website or eBay (perhaps for a hefty price tag) within the fixed period.

How does this reform increase patent quality and limit abuses by patent trolls? Classic patent trolls file applications with broad claims in anticipation of directions in which an industry might one day move, never working out the details of how exactly their 'invention' could be implemented. They then lay in wait for someone to create an innovation that looks like it might overlap with their claims, and file or threaten lawsuits. By forcing "paper inventors" to either create and market instances of their inventions or licensing them to third parties that will, the incentive to carve out huge land-grabs in the IP-space are greatly reduced. This class of inventors could still be wildly successful, but their success would hinge on the marketplace assigning appropriate value to their inventions.

Making the patented material prove itself in the marketplace removes the patent examiner's subjectivity and replaces it with the objectivity of the free market. Requiring that the inventor demonstrate usefulness in the marketplace gets us back to actually inventing things and rewarding that, instead of rewarding the act of dreaming up ideas and submitting paperwork to the USPTO.

Text from this post is placed in the public domain. Feel free to liberally cut & paste (in whole or in part) to write to your Senators and Congressional Representatives, or for any other purpose that you might deem useful.

12 Comments:

Anonymous Anonymous said...

"Under such a reform, the inventor could produce the invention himself, or pitch it to industries that might be interested in manufacturing it themselves."

Have you ever tried to "pitch" your patented invention to the industry ? Apparently not...

All the big industry does is steal it right away - you are left with your patent and the rest of your life to spend in courts...

Some patently ignorant folks discussing matters they don't have a clue about - this is what this blog is, well, for the most part...

10:34 AM  
Blogger Nelson said...

While I think your other proposal, the "independent invention defense", has some merit, this one seems a bit off... while your other proposal favors patents that involve a great deal of R&D, this proposal actually disfavors them. If the industry prefers to wait until your patent expires, and you do not have the resources to produce it yourself, then you would be screwed under this system.

On the other hand, if you don't have the ability to create a working model yourself, and someone else does, by what right do you prevent them from building it? An idea is just an idea, implementation is hard work. Patents are not supposed to cover ideas, and that is one reason I like your proposal. I'm torn.

10:56 PM  
Blogger Jackson Lenford said...

If you don't have the resources to create a working model yourself and the idea is non-trivial and non-obvious (with non-obviousness a requirement for patentability already), you should be able to describe it to potential manufacturers without giving away the details of how to build it.

If the idea is truly valuable, someone with the resources should be willing to pay for the details you've worked out, much as they are currently willing to pay royalties or R&D costs now.

Of course, some of this relies on free market efficiencies; in a free market, the inventor can always play the "you better buy the idea from me before you competitor does" card. If the inventor is dealing with a monopoly, this leverage is greatly weakened.

This is only a partial answer to your concerns, but hopefully addresses at least part of the potential problem.

7:43 AM  
Anonymous Anonymous said...

Jackson Lenford wrote silly things...

Hey Jackson, I am asking you this question: have you ever tried to pitch your breakthrough idea to the industry at large ?
Apparently not.

Take it from me, a small garage-type inventor...

The big guys will never play fair.
They will either try to steal your invention and to run you into the ground, that is financially.

It happens in 99 % of all cases.
(I am not saying 100%, but some exceptions only confirm the rule)

You, as a small inventor, are completely OUT OF LUCK when dealing with large companies.

Take it from somebody who's been there and stop posting foolish suggestions.

8:43 AM  
Blogger Jackson Lenford said...

anonymous, please explain how pitching your idea allows 'big guys' to steal it.

Perhaps I'm missing something, but it appears to me that the only way that would be possible is if your "breakthrough idea" is extremely obvious -- which means it doesn't deserve patent protection anyway.

If it is non-obvious, 'big guy' would have to spend lots of R&D dollars duplicating what you've already figured out, not to mention that they'd lose lots of time to you or a competitor.

How's this -- I'll give you an example illustrating my point, then you give me one illustrating yours.

I'll pick RSA encryption. Suppose I'm Ron Rivest and the year is 1977. Under premature patent expiration, I have two choices: either produce a single working copy of RSA encryption (which Ron had already done), or sell the idea to some big company.

Now, we all know which way Rivest went, forming RSA Security and making millions. But let's suppose I have no interest in that -- I just want to peddle the idea. Okay, easy. I just go into IBM, MS, HP, etc. and tell them - "hey guys, I've got this assymetric encryption idea that will enable all sorts of neat things. It requires two keys, one that is held secretly (the private key) and one that is widely known (the public key). I can encrypt content with my private key that can only be decrypted with the public key, enabling things like digital signatures. And I can also receive communications from anyone that only I can read. And also this enables a certificate thing that could be terribly useful for electronic commerce. Etc. I know how to do this. I've got a working example. But it isn't trivial, and no yehoo off the street will be able to figure it out unless I tell them."

This is because (and this part I don't reveal to the potential buyer) you have to know about the computational difficulty of factoring large primes, how to use this knowledge to produce key pairs that are appropriately entangled, etc. It's some tricky math that I just discovered, and no one else knows how to do it.

I continue my pitch, "You might be able to figure out how I did it if you devote a couple of PhDs for a couple of years, but if you wait that long, I will have already sold it to your competitor, and they'll have a 20-year monopoly on the process because I have a patent. And, if none of your competitors want it, then I'll simply market it myself, and every time you use it for the next two decades, you'll owe me licensing fees, because this is going to be big. Now, let's talk money. How much are you going to give me to let you use it up front?"

10:23 AM  
Anonymous Anonymous said...

Jackson,

What you wrote is just a childish crap.

This real world is a jungle, it's dog eat dog by corporate design...
I have tried pretty much everything in attempt to pitch my patent-pending inventions to big guys only to find out that they are absolutely not interested in licensing or buying even very cheap anything from a small guy.
What they do is band together to fight your patent, try to outspend you when you sue them, do every thing they can to kill you financially and, last but not least, to bribe US politicians down in Washington DC to make it impossible for small independent inventors to play these games...
(all this "patent troll" talk...)

I am not making this up - this is reality small inventors have to face all the time.
Just read about those cases:
for example, the recent case
Carlos Amado vs. MicroSoft
Carlos invented some neat trick and tried to pitch it to Ms. Ms refused to license or buy it, but started using it immediately,
to be sued 10 years later for 500 mil (they eventually paid out 9 mil)

Requiring small inventors to build a working prototype would literally eliminate many of the brightest independent inventors with truly breakthrough inventions (e.g. Gordon Gould with his laser description written on a piece of paper he notarized at the nearest corner shop)

11:36 AM  
Anonymous Anonymous said...

The only "childish crap" I see here is written by the above poster. Name-calling doesn't provide a convincing argument. Next time, think before you post. It looks like you are going to burst a blood vessel.

7:40 AM  
Anonymous k3nni said...

Carlos Amado? This is the guy who "invented" moving data between Excel and Access via a spreadsheet? That's your example of invention that the patent system doesn't sufficiently protect?

Look, I'm no fan of MS (having been a big time Linux proponent for almost a decade now, and of the Mac long before that). MS is dirty, underhanded, and cheating. They lie to their customers and the market, and they leverage their monopoly power against competition at every chance they get. But in the Amado case, I can't help but think of the guy as anything but your classic patent troll.

And the fact that he settled for $9 million instead of the $500 million he claimed in damages says it all. $9 million is just under that magic $10 million figure, the estimated cost of fighting an extended court battle against a troll. MS paid Amado because it was cheaper than paying their own lawyers to fight him.

9:08 AM  
Anonymous Anonymous said...

Hey , k3nni...
Better read about Amado's case first.

The 8.9 mil is the jury award after the trial, not the settlement offered by MS before the trial.

The insignificance of this amount probably reflects the guatemalan citizenship of the patent holder or his lack of patience.

Any self-respecting US citizen would try to fuck MS for all it's worth or even more...

Also, back in mid 90's Excel and Access were NOT linked, that is until this "classic patent troll" showed those dirty bags in MS how to do it properly.

9:54 AM  
Blogger Tim Mensch said...

k3nni is right. Excel has had export-to-database-readable formats since it was released, and Microsoft has been moving toward connecting applications forever. It was, quite blatantly, the obvious direction for them to go. And frequently there are only a few ways to transfer data between applications. This clearly doesn't pass the non-obvious test. That makes Amado a patent troll, in my eyes.

Maybe some of your own inventions are less obvious. But an idea scribbled on the back of an envelope that doesn't require an advanced degree in a hard science to understand isn't likely to pass the non-obviousness test.

I think the number of brilliant people around in the world today, many with advanced degrees, are making the patent system more of a hinderance to creation than supporting it. Any new idea is likely to occur to a half dozen people at once, if not hundreds--and many may try to implement it. A race to see who can register each idea first is not valuable to society--it becomes a drain on the person who does bring an idea to market. And guess who will be hurt more by a patent troll--a big company, or an independent inventor who spent his or her life savings on trying to sell it?

I'm the first to slam corporations for "stealing ideas" from people, but be realistic: How likely is it that you're the only person who's thought of this idea, whatever it is? It's far more likely that a half dozen people in the company know of the idea already, and are just having a hard time convincing someone in upper management that it's marketable.

It's the dirty details that make most ideas valuable. If you haven't implemented, then you're trying to get credit (and paid!) for the easy part. The hard part is in the nuts and bolts for most ideas. If you can't provide enough dirty details to make your idea work, then I would suggest that, by definition, it doesn't pass the non-obvious rule.

Jackson's example of RSA encryption above is a good counter-example to this rule. Odds are good that 99% of the patents in the US are not such good examples. The most prolific US patent holder currently has 1000+ patents on ways to arrange flowers and other items you'd find at a florist, after all.

5:53 PM  
Anonymous Anonymous said...

Well making sure they have actually built it is one protection, but in the world of software patents, they usually have built it, but it doesn't stop someone else from making it independently.

The thing I don't quite understand is the following paradox:

Computers use digital storage. It is therefore possible to randomly select every possible combination of zero's and ones. You can randomly generate any software method, any mp3 file, any movie, and any description - the old million monkeys typing shakespear scenario.

If you randomly generate an mp3 song, and it happens to sound like someone elses song (and there will be gazillion-billions of close-to's - including all possible "better" remixes), then it is against the law to sell it as someone else got to it first and has protected that.

Wouldn't it then be possible to systematically work through and patent every possible combination of bits and bytes first to therefore stop everyone in the world for every producing anything new in a digital format that was copyrighted?

2:10 PM  
Anonymous George said...

quote: "You can randomly generate any software method, any mp3 file, any movie, and any description - the old million monkeys typing shakespear scenario."

The only problem is that this is computationally infeasible. Take the simple mp3 example. I have an mp3 that is 1748680 bytes long, which is 13989440 bits. If I wanted to generate every combination of bits of that length, I would have to generate 2^13989440 files, which is about 10^4211241. When you consider that physicists estimate that the total number of particles in the universe is somewhere between 10^72 to 10^87 and that the age of the universe is estimated at somewhere around 10^18 years, the largeness of that mp3 number comes into scope. And that's just for all the mp3s with this one length -- most of my mp3s vary in length by quite a range, making the number even larger.

In other words, even if you could spit out billions of these mp3s every second with your computer, you'd still need an amount of time *much* longer than the age of the universe to produce them all, and once you'd produced them, you'd need literally gazillions and gazillions of universes to store them on when you submit them to the patent office.

7:37 PM  

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