back to article Are we in the middle of a patent bubble?

For some time, the only reason the word 'patent' meant anything to the average Joe was if they happened to know that Albert Einstein was a patent clerk before he became a rock star physicist. Nowadays, everyone is well up on the Great Patent Wars of technology firms, in particular the face-off between Apple and Android OS …

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    1. Robert E A Harvey
      Big Brother

      Who told you about my pizza fusion process?

  1. Tchou
    Trollface

    The worm is definetly in the fruit...

  2. Andrew Garrard

    Argh.

    "A lot of people have talked about it being bad for innovation but I think the ability to enforce patents is a core aspect of what drives people to invest the huge sums of money that they do in R&D,"

    Something that's making me seriously consider getting out of the software industry (preferably in the direction of academia) is how much nonsense this is. Patents were invented so that the few people who had enough spare time on their hands to solve problems would share those solutions, furthering society. We now have an industry of getting on for millions of people who are employed solely to solve a limited set of problems. The problem will have needed solving by someone else long before a patent is granted, so the disclosure advantage is no longer outweighed by the exclusivity.

    Patents were meant to allow the better mouse trap to be available to more people. Now everyone is making mouse traps, one person invents the best one, and everyone else spends their time realising that they couldn't do it the right (and often obvious) way and have to invent an inferior workaround instead. This is immensely frustrating if you want to put your heart and soul into making the best possible mouse trap, and if you're building a machine out of thousands of mouse traps, it's immensely frustrating to have to worry about this at every turn - patents rarely cover something that took a long time to invent, and software engineers spend their time building large projects out of lots of these small problems.

    Has anyone worked out how much bandwidth and storage space would have been saved if IBM hadn't had the arithmetic coding patent that meant everyone's JPEG implementation uses Huffman? (Admittedly, only a little per image, but there's a big multiplier there.)

    There was an interesting article on Ars Technica a month or two back discussing a report that had noted the effect of patent disputes on company market values. It put the cost of patents to the software industry over the last twenty years as $500bn. I'm not surprised.

  3. Jon Green
    Pirate

    Couldn't agree more

    For some time now, I've felt that patents have been over-used and over-priced - and heading for a big fall, not just in value.

    They're being used not just to obtain value from invention - as was always the way - but now to stifle innovation, and - worse - also to set out deliberately to destroy companies. See Jobs' recently-published quotes on Android, and Apple's outspoken intentions towards Samsung, if you're in any doubt.

    It feels like we're on the eve of a war. I think we probably are, but it will come from an unexpected direction.

    In China, India and other emerging economies, patents don't hold back progress in the way they do in established economies. Sooner or later, the biggest Western governments will realise the potential consequences. At some point - and it may happen sooner than we expect - there must be moves to weaken patents.

    That could come from a number of directions. The entry barrier to patent enforcement litigation could be raised by having the litigant place a large bond (say, three times the compensation/penalties sought) in court escrow, to be released to the defendant if the case fails.

    Given that a lot of patents are spurious, the defendant could be granted a pre-hearing opportunity to overturn the patent by submision of proof of prior art or lack of inventive step - meaning that any litigant could be faced not only with the potential of financial disaster in failure, the risk of having their patents ruled invalid.

    The actions of the court in enforcing the patent could be limited: an upper limit on claim size; a strictly limited window of opportunity to file claims (in effect, a statute of limitations on patent violations); the restriction of recourse to retrospective establishment of a court-set reasonable licence fee; with the removal of any powers to ban sales of infringing items except where the defendant has failed to pay the retrospective licence fee after a reasonable period.

    One way or the other, the current patents system has to be fixed, and on a worldwide basis - and not just to protect business interests. Otherwise the human race's dying words could well be, "We couldn't shoot down the meteorite, because the patent court grounded the weapon system."

    1. Bronek Kozicki
      Thumb Up

      I think you nailed it

      here : "In China, India and other emerging economies, patents don't hold back progress"

      it's only our western habit of navel gazing which prevents us from seeing the obvious. Few more years of this patent nonsense coupled with weakened retail markets (did anyone say "recession"?) to offset litigation costs, and I can see plethora of less-known (in the West) companies doing some serious export here.

  4. clean_state
    FAIL

    patents worked well until the rules were broken

    Prior to the US and EU patent offices discarding the rules of the patent game, the system was quite stable. They did so on their own, with the help of the "patent community" i.e. patent attorneys who profit from there being more patents. It was done without any legitimacy at all but for some obscure reason, US courts sided with the USPTO and the EU patent office started to ape them. Could it be that courts and patent offices are run by legal experts, the same that profit from there being more patents ?

    To sum up the situation before, a patent had to describe a physical invention, i.e. the embodiment of an idea into a physical machine. And the invention had to be non-obvious for the man of the art. The "physical" part was not there to exclude software, but to exclude theories, mathematical formulas or other pure ideas.

    So for example, you could not patent centrifugal succion by itself (when you rotate a cylinder, the centrifugal force creates a gradient of pressure inside, with low pressure - succion - in the middle). You could however patent a centrifugal pump, or a centrifugal succion cleaning machine.

    The system stood on good legs: ideas were assimilated to science where publication is the norm. Patent protection was deemed necessary only when a specific implementation of an idea was considered because it required setting a manufacturing operation into motion which requires time. The protection provided the time.

    Benefit for investors: possibility to implement and productize.

    Benefit for society: inventions are described publically and become public after a period of exclusivity

    The USPTO first abolished the first rule by allowing patents on pure ideas which created a flood of over broad patents since no specific implementation was required. The "one-click" patent was born and patent trolls followed. Under the volume, it was forced to abolish the second principle too because it did not have the resources to asses non-obviousness anymore.

    Again, the goal was plain and simple: more patents of lesser quality results in more patent litigation and counseling hence more money for the "patent community", which is why the "patent community" did it.

    Such is the sad story of the biggest "robbery of the 20th century".

    It also shows us the way back to normal: reinstate the old rules.

    1. stuff and nonesense

      "The "physical" part was not there to exclude software, but to exclude theories, mathematical formulas or other pure ideas."

      Software was covered by copyright.

      There are many ways to solve a problem, take the routine :

      proc make_curry(ingredients)

      begin

      follow family recipe(ingredients);

      end

      There are many recipies, many ideas, just as there are many ways to write a sort routine. Software is a mental act in the same way as a mathematical proof. That is why it was not patentable (until last month in the UK)

  5. Charles Smith

    Prior Art

    Its already been invented so it is Prior Art. Wanna see my man cannon mister?

  6. Asgard
    Boffin

    As technological change accelerates, the patents are going to become an ever increasing problem. For example, a patent 200 years ago would most likely have been very useful for decades more after that patent ran out. But now a 20 year patent could very easily out last more than a dozen generations of mobile phones!

    Technological change is accelerating, (All information technology is a perfect example of that, as collectively its all helping to accelerate research into new technology, which in turn will help accelerate technological change even faster than now).

    The problem is, the faster technological change accelerates the more patents become an increasingly big drag factor on increasingly fast technological change, which shows patents slow change (even though the lying two faced patent holders wish us all to wrongly believe patents help speed up change).

    So that's one more major problem we face with patents, without even looking in detail at all the other problems patents cause us (which we have discussed before). In summary e.g. patents being only useful to billionaires and billionaire corporations (to use as a protection racket) and only other billionaire corporations can fight such a massive and expensive system. A lone inventor would get swamped with hundreds, even thousands of patents so unable to afford such a huge and lengthy patent battle so they would go out of business.

    The patent system has fundamentally failed and that problem is getting progressively worse as technological change accelerates. The patent system doesn't work as originally intended, but patent holders (and ever richer lawyers) will never admit it, therefore its going to take someone else to go up against the system and no one can, because it would cost billions to fight the patent system and they would most likely still loose as its now “the law” bought and paid for with countless billions of lobbying money over centuries. The law serves only the rich because they can afford to lobby it until its what they want. Therefore we are all trapped now in a billionaires increasing tyranny all backed up by a legal system bought and paid for that allows the billionaire corporations to run protection rackets against everyone else.

    Wonderful world that's been created isn't it. :( ... but don't worry, the endless two faced supporters of the corrupt system will try to lie to us that its needed and if that fails, they will do what they usually do, which is to use straw man augments (and arrogant/nonchalant indifference such as tl;dr) against anyone who tries to talk against the corrupt tyranny that has been bought and paid for. But then they don't want people to argue against the way society has become increasingly corrupted to serve only the will of the rich. Same pattern throughout history and patent law is just the latest example of laws biased to serve a few against the many. :(

  7. Naughtyhorse

    anyone but the experts are bound to be hoodwinked

    Are these the same experts that took all risk out of the mortgage market (right up until it disappeared up it's own arse)?

    Or the experts that brought us the derivatives market?

    Yeah i thought so....

    Long winded way of saying hubris.

    All you experts will never admit that the big changes in tech are always unforeseen, ergo the value of their expertise is moot. The speculators will hoodwink the investors that it is otherwise, trade, take their percentage - while the going is good, and when it all goes tits up the investors lose and the traders hitch a ride on the next bubble.

    just a little bit boring

  8. AdamWill

    "Eckardt, whose company designs and executes transactions involving IP assets"

    Prime candidate for the B ark, anyone?

  9. Jim Bobble
    WTF?

    "A lot of people have talked about it being bad for innovation but I think the ability to enforce patents is a core aspect of what drives people to invest the huge sums of money that they do in R&D,"

    Surely this is just another way of increasing the barrier to market entry for small businesses and innovators?

    In any case, I can hardly understand how things like rounded corners can be considered particularly unique designs (even as part of a design identity) or innovations.

  10. Andy 97
    FAIL

    This place gets more like the D**ly Ma** every day.

    Nice work El Reg, scaremongering; whatever next?

    I expect to see an exclusive on 'dirty' foreigners coming over here, taking our jobs and ... zzzzzz

  11. patent litigation

    The new disjoinder rules in the recently-passed patent reform legislation may help to reduce the scourge of patent trolls. At least Congress is doing something to address the issue.

    http://www.aminn.org/

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