Patents

The problem with patents

Patent trolls and now tech giants have clearly been exploiting the patent system to stifle competition. if our goal is to protect and encourage innovation, we must demand more from our governments and the companies from which we buy our products.

Some of the biggest and most consistent technology news of the past 18 months has not been a breakthrough mobile device, new operating system, or compelling enterprise technology; rather, it has been the constant patent battles among technology titans. Legal wrangling over the patent system is nothing new, with years past introducing us to the idea of "patent trolls"-organizations that amassed a collection of patents without actually inventing or using any of them, only to sue other companies that actually produced a product, claiming patent infringement. What is relatively new is the barrage of front-page stories of one tech giant suing another, the poster child for this effort being Apple.

Seemingly instants after a compelling device running Google's Android operating system appears on the market, Apple's lawyers have filed injunctions claiming patent infringement and attempted to block the device from being sold, sometimes successfully. Everyone from Oracle to Microsoft has also been in on the action, with some claiming that Microsoft's licensing deals with Google actually produce more revenue than Microsoft's own smartphone operating system.

Aside from the lawyers, everyone, from CIOs to consumers, seems to be on the losing end of this battle. Popular devices are literally pulled from shelves, and device features are modified or removed to comply with legal actions. Wide swaths of cash are burned in the legal wrangling, as is the time and focus of executives and engineers who presumably have better things to do, not to mention the various judicial systems that provide the venue to air each and every complaint. Smaller companies come at a particular disadvantage, with a new market entrant risking being caught in the crossfire of multi-million dollar legal campaigns that could cripple the company, even if it were found to be in the right.

Is the patent an idea that's passé?

One obvious solution to the problem is removing the notion of patents altogether, perhaps even as part of a larger movement to weaken intellectual property protections. In the extreme, some advocates of this notion happily steal music and software, justified with bromides about information "yearning to be free." An obvious problem with this concept is that innovation costs money to produce and, while imitation doesn't guarantee market success, true inventors deserve some form of compensation. This basic notion is what likely drove the notion of the patent and IP protections, but it's a notion that has been overly exploited by companies looking for anything from quick profits to settling a grudge.

Assuming the concept of the patent is still valid, what seems to be needed is a mechanism to protect inventors and also streamline innovation. I am personally a fan of the "less is more" approach, since all the government actions in the world did less to hamper Microsoft than Apple and Google producing more compelling products. One popular idea is a "loser pays" legal system, where an entity bringing a patent challenge to trial must foot the legal bills of the other party if the suit is found to be without merit.

Another interesting idea is that of forced licensing. Apple versus Samsung is one of the most prominent legal battles at the moment, and Apple has stated that it refuses to license allegedly infringing patents, hoping instead to force Samsung to abandon popular devices. Pioneering technologies like multi-touch certainly deserve to bring financial reward to the inventor, but using them to kill competitors' products, especially when they rapidly create a new industry standard, seems against the idea of promoting and protecting innovation. Allowing courts to determine an appropriate licensing fee, and forcing licensing when no other course of action is available, would require a properly equipped and knowledgeable legal system, but could speed innovation while compensating inventors.

While it's easy to blame lawyers for all evils in the world, patent trolls and now tech giants have clearly been exploiting the patent system to stifle competition. It's easy to see the temptation of quickly killing competitive products or wasting a smaller competitor's time and money in the legal system, but if our goal is to protect and encourage innovation, we as citizens must demand more from our governments and the companies from which we buy our products.

About

Patrick Gray works for a global Fortune 500 consulting and IT services company and is the author of Breakthrough IT: Supercharging Organizational Value through Technology as well as the companion e-book The Breakthrough CIO's Companion. He has spent ...

47 comments
bobc4012
bobc4012

Mark A. Lemley is the director of the Stanford University program in Law, Science & Technology.[1] He teaches intellectual property, computer and Internet patent and antitrust law. He is a widely cited expert on the impact of patents on innovation[2] and what the appropriate requirements for granting a patent should be. - http://www.law.stanford.edu/news/closing-the-software-patent-loophole-professor-lemleys-new-proposal From OpenSource - recap of the above with comments from your peers, which you may find of interest. - http://opensource.com/law/12/9/closing-software-patent-loophole-professor-lemleys-new-proposal

przemoli
przemoli

There is no correlation between R&D costs and license fees. In extreme case you need not spend even penny on R&D, just patent fees. There is no correlation between usefulness of patented idea and license fees. In extreme cases you can demand more than cost of actual device, while providing no significant value.

AnsuGisalas
AnsuGisalas

A royalties system would ensure that the inventor gets their investment back with a profit, meanwhile preventing hoarding. It would also make the lone inventor working in the garage able to profit from their work, while at the same time boosting growth in all sectors.

bobc4012
bobc4012

Prior to the 80s, S/W was considered not to be patentable. when the USPTO decided to allow S/W to be patented, it relaxed the rules for S/W patents - it never should have done so. First, if you could do something with pencil and paper (even though it may take quite a while), patenting the S/W process to do the same is not "novel" nor non-obvious - two of the patenting requirements. Likewise, patenting a S/W process to support a piece of H/W is also not "non-obvious" - in some cases, there may be only one way to do it. Prior to the S/W patent process (and, prior to the Copyright process) there was a lot of S/W developed. Even though the earlier S/W was developed for mainframes and earlier computer equipment, it set the groundwork for future S/W failing the requirement of being novel or non-obvious. In addition, many papers were published over the years, both in academia and the business world. Again, those papers laid the groundwork for many "future" S/W developments (even if H/W lacked the ability at that time) - again, making that development "obvious". The best thing the USPTO could do is invalidate all S/W patents and allow only a complete application (and its modules) to be copyrighted, like a book (and its chapters). That two or more people should happen to write the same 2 or 3 lines of code is not sufficient to say a copyright (or even a patent) has been infringed upon. The next best thing the USPTO could do is strengthen the requirements temporarily "invalidate" all S/W patents, put a hold on new patents (could still allow them to be filed - date prevails) and expose the entire set of S/W patents to the world so others may examine and then show proof that they do not meet the requirements or are a variation of earlier "art" that had not been allowed to have been patented. I suggest this because, the USPTO would end up hiring, maybe, 13,000 patent agents (to accompany the 13,000 IRS agents) to try and get a handle on the thousands (millions?) of S/W patents (of course, these agents would have lifetime jobs and retirement benefits at taxpayers' expense). In seriousness, a certain number of agents would be needed to verify the proofs of prior art coming in, but putting a hold on would give some breathing room.

nvantreeck
nvantreeck

This article is so wrong in so many ways I hardly know where to begin. "This basic notion is what likely drove the notion of the patent and IP protections, but it’s a notion that has been overly exploited by companies looking for anything from quick profits to settling a grudge." The basic notion of both patent and copyright protection are found in Article 1, section 8 of the U.S. Constitution which state: "The Congress shall have 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;" The basic notion was born around the birth of the nation; not by corporations, but our founding fathers. So, if you want patents and copyrights to be passe, you will need to change the Constitution. Now for your Civics pop quiz of the day: How can the Constitution of the United States of America be amended? Please leave a detailed answer below. "not to mention the various judicial systems that provide the venue to air each and every complaint." As patents and copyrights are exclusive to the Federal government, the various judicial systems are only Federal Courts. In fact, you might want to look at the Court of Appeals for the Federal Circuit. From http://www.uscourts.gov: "The 94 U.S. judicial districts are organized into 12 regional circuits, each of which has a United States court of appeals. A court of appeals hears appeals from the district courts located within its circuit, as well as appeals from decisions of federal administrative agencies. In addition, the Court of Appeals for the Federal Circuit has nationwide jurisdiction to hear appeals in specialized cases, such as those involving patent laws and cases decided by the Court of International Trade and the Court of Federal Claims." So here are the specialized courts that you wanted to make, which have been around since 1982. "Aside from the lawyers, everyone, from CIOs to consumers, seems to be on the losing end of this battle." Neither lawyers or courts make the law, Congress does. Lawyers are hired, by both individuals and companies, to act on the laws that are passed by both the legislative and executive branches of the government. If everyone from CIOs to consumers want a different system, you will need to change Congress. Good luck with that. "While it’s easy to blame lawyers for all evils in the world, patent trolls and now tech giants have clearly been exploiting the patent system to stifle competition." It is apparent, from reading this article and all the comments, no one here has heard of the America Invents Act, which will be completely implemented in early 2013. This new law basically overhauled the entire patent system, and, in my opinion, not for the better. If you think it was bad and exploitive (or exploitative, depending on your dictionary) before, you have not seen anything yet. Before writing an article, try doing some research on the subject instead of opining and complaining ad nauseum. Take a social studies class. Ask a qualified attorney to review your article about the law. Heck, read the Constitution. You may want to move this article to the OpEd page. Let the flames begin!

gevander
gevander

1. Make it part of any patent or copyright trial that if the owner or their assignee sues for infringement [b]and loses[/b], the patent/copyright passes instantly into public domain. (If they appeal, this happens after appeals are exhausted. If the judgement goes against them, they appeal to get more time, [b]and then settle[/b] they can keep their patent/copyright.) 2. Make it part of the patent/copyright system that any person or corporation that is found to have submitted a claim based on prior art or on nature (either by the patent/copyright office or at trial) is barred from further submission until all their existing patents/copyrights have entered the public domain.

GrizzledGeezer
GrizzledGeezer

Among other things, an invention can't be obvious or trivial. Unfortunately, patent examiners (and judges) don't understand this. The result is that probably 90% of all patents are "prima faciae" invalid. If patents were granted solely for devices and processes that were //genuinely// innovative, we wouldn't have anywhere nearly as much legal wrangling.

bellgeorge
bellgeorge

How about licensing at inventors discretion for first 12 months after starting sales and then obligatory licensing @ 2.5% royalty on sales of user.

carlabw
carlabw

How do we bring the action to congress? Is there an organization that would or should sponsor this?

Deadly Ernest
Deadly Ernest

you could provide a fully working model of it. Then when you went to court for infringement you also had to show you had a working product that was either in production or in the process of going into production. Another aspect was you could NOT patent something that had been patented by someone else in another country unless you could prove you'd bought the rights to do so. Thus only the original inventor could patent it in his own country and then in others, or sell the rights to another. Another thing that could stop a patent was for someone else to show prior art by them or others. The original intent was to protect the inventiveness of people who actually created something. Just the baseline thought was no good without putting it into practical use. Yet the patents coming up in the patent trolling seem to violate these original basic concepts behind the laws. If the legislators made laws to include the original concepts and the courts applied them that way, then the majority of these cases would never get to court. What frightens me at the moment is the US patents office appears to have no problems with issuing patents for natural products and acts of nature. Just look at some of the stuff concerning gene patents etc. Patents, like copyright, are needed, but they do need to be legislated, implemented, and managed in an intelligent manner - something that is NOT happening in the US at the moment.

barts185
barts185

Mark Cuban had a great article on his blog back in April talking about how patent trolls are going to cost any business so much money. The things that people are granted a patent for are ridiculous. So far, the lawyers are going after the low hanging fruit of the big companies. Once they get through with those, you think lawyers will stop when there's a pile of money sitting there to be taken? It's going to be a horror show for small and mid-size businesses.

srponamgi
srponamgi

Re. comment by Richard233: Richard, it is "passe" as Patrick Gray had it!

richard233
richard233

Patents are still a good thing, but the process of granting and licensing need review. Certainly no member of a standards group should be able to push a concept of something as a standard without revealing that they have a patent for it. Patents need more examiners that are expert in the field related to the patent. Having a lawyer decide that something created/implemented by an expert in a different fields (software/hardware/biological) makes little sense. There is no way a decent web programmer would have ever granted Amazon the one-click patent for what is basically a simple link to a cookie to a database. It's both obvious and preexisting in different forms. Patents that are not implemented within a reasonable time frame, say the half-life of the patent, should expire. Patent holders should have a duty on a level of trademark holders to inform a user of potential infringement. Patent holders holders who are not actively using the technology should be required to license them at reasonable and non-discriminatory rates set based on the nature of the concept and within proportion of the value it adds to any product.

Deadly Ernest
Deadly Ernest

have warped the intent and operation of the system in the USA. Under the old rules you couldn't even lodge for a patent unless you had a working model, full set of plans, and detailed write up of exactly how and where it would be used. All that did require R&D expenditure, but the current USA system makes a mockery of all that and they even allow people to patent acts of nature. Patents as a concept are not a problem, they warped way the USA patent laws and patent office operate are the problem. Hell, I doubt a single one of the IT patents involved in the patent trolling or recent court cases would be allowed as a patent application in most other countries.

Deadly Ernest
Deadly Ernest

Patent The first patent laws go back to 500 BC, that' a little before the US constitution. The first proper written UK patent on a technical item is from 1449 and relates to making coloured glass. the first patent issued in North America was in 1641 in Massachusetts to Samuel Winslow. As part of the clean up of the US War of Independence ALL the British laws were tossed out and the US had to create new ones to do what was in the old British laws. Some of the concepts were enshrined in the US Constitution and some more were enshrined in the US Bill of Rights, the rest were made part of new federal and state legislation. The first USA federal patent law was passed in 1790. Copyright - raised as it's sort of related earliest copyright laws are from England 1710, although there are older laws and regulations that covered many related aspects. ...... So all this does show it existed prior to the US constitution. The problem is that what was intended under the original laws has been severely warped in the last 20 years in the US legislative and judicial system as part of a concerted effort to change what they mean and how they apply. In the last decade we've seen a lot of matters go before the US courts on patent infringements in the IT industry, the interesting thing is the majority of them would never have gotten near a court anywhere outside the US as they relate to patents on aspects that should never have had a patent issued for them.

przemoli
przemoli

1. Do not address patent trolls problem since they opt for making license fees cheaper than litigation. So there still is pressure for small/startup companies to stroke a deal. Even when they know and can proof that patent is invalid. 2. That would make patents really expensive thus only big corporations would be able to get them. Instead of curing, that proposition would make it worse.

przemoli
przemoli

They cover ideas. Look at software. Patents covers ideas. Copyright implementation. Those are different things. While tying to real product, would help, your solution would not solve problem. It is EXPENSIVE to check if something is novel enough.

Deadly Ernest
Deadly Ernest

and not shotgun odd usage possibilities, thus anyone coming up with an truly innovative way of applying your patent in another field you'd not addressed was not in violation of your patent.

sarai1313
sarai1313

problem with the system as it stands today .back in the day they were called napkin patents drawn up over cocktails . with no real engeniering in most of them till you had to put them into the patent office. but not now.

Deadly Ernest
Deadly Ernest

what they want and promise to vote for someone else if they don't do it.

SKDTech
SKDTech

The entire patent and copyright system needs a review and overhaul. The system is obviously not functioning the way it was originally intended.

przemoli
przemoli

If cost of litigation is higher than settlement which CEO will choose more expensive option. (especially if there is possibility of banning their product from even entering market) And do not put labels on layers. They just do their jobs. Its ppl with money and a bit of cleverness who do damage.

przemoli
przemoli

When anyone proved them right? When did anybody measured their influence onto R&D and innovation in general? When anyone measured influence of various protection polices, granting requirements, times of protection? In other words I call CHECK. Can you show anything beyond your _believe_ ?

bobc4012
bobc4012

Hey D.E., does the "acts" also include "calls of nature" - maybe I can patent a 5 seater outhouse with a bench-wide, head-high partition between each hole. Never seen one that elaborate before - so it would be new, novel and non-obvious. LOL!

Deadly Ernest
Deadly Ernest

copyright is for thoughts and ideas and stories. An artist can get a copyright on their drawing, but not a patent. A scientist can get a copyright on a ground breaking idea concerning physics, while an engineer can get a patent on how he turns the idea behind a scientific theory into a patent via a mechanical device. The design of a nuclear bomb is a patentable item, while the theory behind it is copyrightable.

przemoli
przemoli

people from using overly broad language when describing usage.

sarai1313
sarai1313

i finaly find some one who knows what i have been yelling about for years.nice to see not every one that come to cnet is a drone bee.but can think for them selves.peace dude

NickNielsen
NickNielsen

All of the following would be in the would be public domain: - every movie made before 1987 (including all the classic cartoons from Disney, Warner Brothers, and MGM). - every record recorded before 1987. - every book published before 1987. Who wouldn't want this? Answer the question and you'll know why it changed and why it won't change back in the current America.

Deadly Ernest
Deadly Ernest

politicians to change the laws to favour the company coffers - which is why they bought them in the first place.

Deadly Ernest
Deadly Ernest

robotic arm to wipe the posterior after use as the arm bit would be seen as new tech. What I was referring to was a number of recently issued US patents on naturally occurring genes and the like. Hell, the USPTO allows people to patent inventions by other people made overseas but not yet patented in the USA, despite the patent lodger having nothing to do with the development of the item being patented.

Deadly Ernest
Deadly Ernest

explicit usage examples and of how they intend to implement that usage into daily usage and production. That's how it used to be, and how it should be. As some one else said, there should be a limit on how long you have to get the patent into production, since a patent is supposed to be on a physical item almost ready to go into factory production. Not just an idea that may work out.

Deadly Ernest
Deadly Ernest

one set of changes started driving me batty. Over the years I've worked in many areas and learned many things. I also have the advantage of living in Australia so our laws, for the most part, are a fair bit saner that some of the US laws, except when the US govt has pressured our govt to cave in and change the laws to match the US laws - such as the extension of the copyright period. I believe in people being responsible for themselves and what they do, and such old fashioned things like honour and truth, so the politicians don't like me.

Deadly Ernest
Deadly Ernest

doesn't detract from the sensibility and correctness of the original concept and implementation.

przemoli
przemoli

Copyright covers IMPLEMENTATION. Paten cover IDEA. Notion that patent "protect" any real product is FALSE.

Deadly Ernest
Deadly Ernest

was NOT enforceable in any legal jurisdiction when I heavily looked into that a few years back, not even in the USA.

bobc4012
bobc4012

However, when to comes to S/W, it is a process - not a machine. Those processes are needed to automate something that could be done manually, therefore failing the "novel" and "non-obvious" requirement of the patent process. S/W is more akin to writing a novel and a Copyright is more appropriate. Also, some of the carpola in the EULAs should be scrapped. I can buy a book and when done, sell it, trade it or whatever. I can go to a used bookstore and buy someone else's book and not violate the Copyright. Try that with a lot of S/W and you will find out you can be prosecuted per the EULA.

NickNielsen
NickNielsen

allowed for a 14-year copyright and a 14-year renewal.

NickNielsen
NickNielsen

The original copyright period was finite. Under current American law, it might as well be infinite.

NickNielsen
NickNielsen

But the concept that the originator of an idea or the inventor of a device is entitled to some financial protection for a [u]finite[/u] period after the creation is the same.

sarai1313
sarai1313

Moderator . i know the diffrence.

sarai1313
sarai1313

copy right laws were good befor all this crap came about with the patent office.

Deadly Ernest
Deadly Ernest

and the Berne convention on copyright was for 50 years after the creator's death. Now, due to US law makers and US economic pressure on countries with smaller economies it's a lot longer so the companies can get the copyrights and make money for a longer period.

sarai1313
sarai1313

not the same thing . if you think this then you are wrong

SKDTech
SKDTech

I don't have much of a problem with original artists being able to hold the copyright until death, after all they created the work and hould be able to reap the reward or give it all away if they choose.Unfortunately copyright is more often held by the publishers and I believe companies should have a finite limit placed upon the length of their copyrights. As well, copyrights should not be able to have their durations extendedafter issuance. If the length of copyright is 10 years at the time the copyright is issued then it should not matter if new laws were passed which lengthen copyrights to 20 years. If the copyright was issued with a ten year lifespan then that is all it should get.