Patent flame storm: Reg hack biteback in reader-pack sack attack My piece on patents on Tuesday received a record number of votes of disapproval for a Reg article. I'm not in the least bit surprised. That's because in my analysis I advance an argument you don't hear very often in the tech world. Which is that the patent system gives us a huge social benefit. It's an irreplaceable component …
Cases like Apple vs Samsung are just examples of why such a system needs monitoring and adjusting, not ditching entirely.
Also, good sausages can be appealing before cooking, but they're best on a plate with some bacon and eggs. And maybe some black pudding. God, I'm hungry now. Why did you have to go and mention sausages, Andrew?
I agree very much (as I did in my post to the previous article) that the patent system needs repair, and the key is proper examination of patents. I know a patent (US patent 5,533,051, an analysis is given here) was awarded for a means and method to compress any string of bits without loss of information (even it's own output). Anyone with half a brain can see that this is (ahem) patently false, as repeated application of the method to any finite bit string would result in a zero bit string, which mysteriously should still contain all the information of the original. I remember commenting at the time that the process might be correct for certain types of music, because they contain no discernible information anyway (the precise type of music for which this holds may differ between people).
Had this patent been examined properly, it would never have been awarded. The same holds for quite a few others (though fortunately very few are as stupid as the one abive). Having said that, there are plenty of inventions that thoroughly deserve protection, and the patent system, if properly implemented can provide that.
It would cost a fortune to screen all patents up-front when they are applied for, but perhaps there could be a pre-screening process by relevant experts when someone tries to enforce a patent. In other words, it would be easy to get a patent, but to enforce it, you couldn't go straight to law - there would be a process to decide whether it should have been granted in the first place and, if the application was found to be frivolous, the patent would be cancelled and the assessment costs borne by the applicant.
Possibly a six-month ban on making new applications could also be imposed. Repeat offenders (not necessarily Apple!) could face having all their other patents invalidated.
Where a patent makes sense, this would still deter people from infringing it, but it would also deter frivolous patent applications and legal proceedings.
<blockquote>It would cost a fortune to screen all patents up-front when they are applied for</blockquote>
That's how the patent system is supposed to work.
If someone isn't examining patent applications, then you've just identified what's wrong with the patent system.
Patents require careful expert examination - that makes them, or should make them, expensive to acquire. Once acquired, though, they should require little defending in court because the patent office will have subjected them to a careful examination.
The whole process is wrong - the cost should be stuck into the examination process, not the courts.
Patents were once required to have a demonstration or a working model to accompany the application, which would significantly reduce the cost of checking whether the idea worked. You'd have a conclusive demonstration that it worked. It was eventually dropped as a requirement because of the warehousing costs.
It would cost a fortune to screen all patents up-front when they are applied for, but perhaps there could be a pre-screening process by relevant experts when someone tries to enforce a patent. In other words, it would be easy to get a patent, but to enforce it, you couldn't go straight to law - there would be a process to decide whether it should have been granted in the first place and, if the application was found to be frivolous, the patent would be cancelled and the assessment costs borne by the applicant.
Possibly a six-month ban on making new applications could also be imposed. Repeat offenders (not necessarily Apple!) could face having all their other patents invalidated.
Where a patent makes sense, this would still deter people from infringing it, but it would also deter frivolous patent applications and legal proceedings.
----
When you think of new schemes, you need to always think about ways in which your great ideas can easily be gamed and overcome.
To wit, you can't punish offenders by taking away their old patents. If you do, they'll just incorporate a separate company to own each of their patents, so the "all their other patents" you mention say should be taken away would always be exactly zero.
You also suggest this new examination system that kicks in when a patent owner tries to go the legal route. What if they don't sue, and instead go the backdoor route and talk quietly under NDA to people they think they are violating their patents, as Microsoft did with Android OEMs?
Instead of that, it has also been suggested by some that after initial approval by the patent office, to-be-issued patents could be published for some time period (30-90 days?) to allow competitors and other interested parties to attempt to provide prior art, show they are obvious, etc. That's fine for say Apple's patents, as there is now a small army of Apple haters who will gleefully commit their time to googling and thinking they are qualified to know what prior art consists of. But what if Apple started patenting under shell companies to avoid having it known which patents are theirs? What if some company no one has ever heard of patents something obvious, but no one cares, until it is approved and they become the next patent troll looking a billion dollar payday over something ridiculous like embedding video in a web page? What if some company that is today's darling becomes tomorrow's evil company du jour?
"Instead of that, it has also been suggested by some that after initial approval by the patent office, to-be-issued patents could be published for some time period (30-90 days?) to allow competitors and other interested parties to attempt to provide prior art, show they are obvious, etc."
Doug S, you wrote the above but I would like to ask how you expect that to work? An invention is always obvious after the fact.
"I can write you a program today to compress any size of input file containing any random sequence into only 16 bits."
Given that such a sequence has only 2^16 unique values, and thus can only represent 2^16 unique decompressed values, and I can think of more than 2^16 unique input files, I suspect that you're not telling the complete truth.
"Given that such a sequence has only 2^16 unique values, and thus can only represent 2^16 unique decompressed values, and I can think of more than 2^16 unique input files, I suspect that you're not telling the complete truth."
To be fair, they didn't say they could also write a program that would decompress them.
It's interesting that the leader in this week's Economist, a paper not known for it's whalesong and subsidy love, drew significantly different conclusions in particular about juries decide on patent cases: Not every innovation deserves a patent. Not every copycat deserves a punishment. I found The Economist both more coherent and convincing.
Of course you support weaker IP. Your hobby is cloning someone else's. MRD therefore applies:
http://www.urbandictionary.com/define.php?term=MRD%20applies
Special pleading apart, The Economist recommends taking justice away from juries (citizen peer review) and giving it to an elite (judges).
To understand patents you need to spend time outside the software world, and look at what other industries think. You'll get a very different picture.
Another strawman - this time about my hobbies, about which I think you know less than you suggest and you further imply that I know little or nothing about anything other than software. Weren't the validated patents about software - the "bounce" feature and the design of icons? Design patents and copyrights are extremely limited as the case of Christoph Laboutin versus Yves Saint Laurent. And, of course, when it comes to industrial patents, Samsung has a quite few more than Apple.
Add to this the disingenuous oversimplification and thus misrepresentation of The Economist's position on juries; or at least the referred to article restricts itself to patent cases and not "justice" in general, though I would contend that trial by jury is not the same as peer review.
Judges are not necessarily elites but they may be specialists. But even within the realm of jury trials, the advice given by judges is crucial as evinced by http://www.economist.com/blogs/babbage/2012/06/oracle-v-google. Were you cheerleading for Oracle on that as well?
You have previously provided an incisive understanding of the Apple business model: the ability not necessarily to be first to market but the one to provide the best user experience. Given this your current polemics seem a surprising volte-face: patents can be used to support the creation and maintenance of monopolies (the very antithesis of why they were introduced).
Court cases like this considerably add to the costs of doing business in the United States of America. Reform of both the patent application and approval system as well as its enforcement may well become essential if America does not want to be shut out, especially as growth shifts to Asia. The whole thing is slightly reminiscent of the high tariffs imposed by America on imported manufactured goods in the 19th century.
Hear, hear!
If software remains either the software must be translated to logic gates and other circuit elements (as all programs can be) or a standard set of terms must be required. The biggest problem of software patents is lack of precise descriptive language for the practice. I say this as someone who has multiple software patents and has seen insane rejections, or confused claims around uncertain meanings. Hardware patents even those with large software components are by comparison very clear even when language is arbitrary the actual objects bring clarity to the description and claims.
No "innovation" deserves a patent unless it is a style patent or copyright. Style patent is a patent for the specific shape, color and styling of an object, a different object doing the same function would not i fringe i.e., Samsung would not infringe Apple. An innovation in fact is a product and cannot be a basic or broad patent by itself.
Many inventions however can be the source of one or more innovations. An innovation is a successful product that brings some perceived new element to its marketplace.
Allowing Apple to patent the shape of the iPhone is a lot like allowing GM to patent having a wheel at each corner of the car, somewhat non-original for a start.
Patents in general are a two edged sword. While the 'inventor' can get royalties etc (assuming he can afford the law suits - which the one man band in his workshop at home can't) then the protection of the idea can - and often demonstrably does - prevent people building on the idea (standing on the shoulders).
It is arguable whether people invent because they can get money, or invent because they are inventive and want to better the world.
Nail on the head there, Dave. I wish I could upvote your post a dozen times.
The patent system is geared towards Big Business and NOT individual inventors, in much the same way copyright is geared towards Big Media. It costs so much to register, let alone defend, a patent that only multinational corporations can derive any benefits from them.
This makes any argument about "protecting struggling inventors", much like the furphy of the "struggling artist", specious in the extreme. A genuinely struggling independent artist has no more money or hope of defending her music from being plastered all over Pirate Bay, than a garage inventor has the ability to prevent his power-saving electrical circuit from being stolen or copied by the likes of Apple. The initial consultation fees of the lawyers alone are so far out of reach of either as to make the entire intellectual property system nothing more than a source of ammo for corporate warfare - and most importantly, as a tool for locking out the bedroom artist or garage inventor from protecting any innovations of their own.
Until justice, as well as the intellectual property system, are easily accessible by everyone, not just the super-rich and their cronies, that system will continue to only serve to place our culture, and our very way of life, increasingly under the heavy-handed control of organisations whose very existence has nothing at all to do with enriching or bettering humanity and everything to do with filling their shareholders' pockets at the expense of the rest of us.
And I've mentioned this before and had the issue forced now.
We arent a big shop here, theres five of us here, two in Canada. We've had an order for our products for use in the states and to be totally honest, despite doing our research I'm scared shitless of doing so.
Do I walk away from potentially a huge opertunity to get our kit out there because I'm scared that someone, somewhere is gonna find a way to throw a sueball at us, or do I retain legal advise just to make a sale and take the hit that way.
This is in no way, shape or form helping innovation. Its the small people like us, the new ones following the like of Dyson and Bayliss that bring a lot of the real game changers to the table, And its the same people now who are too scared to actually join the party just in case they accidentally step on some megacorp or patent troll's toes.
If I piss off (picking a name at random here) APC, they will throw a case at me, legitamate or not, I cant defend that, I'll just sell the tech in question or fold. There are enough 'sharks' in our area of work to make me uneasy enough to just walk away from a whole market even though I know I've done nothing wrong. Patents were never intended to be a weapon and thats how they are being used now.
What worries me is someone managing to slip 'one under the mat' and discover something we are using that was in the clear now isnt. For the system in question we relay on a lot of prior art wich is currently in the public demand, but if somoene managed to do something nasty ie EIA485, CSMA/CD, or any of the off the shelf stuff we do I'm stuffed. When people on these forums get all upset about people yelling 'prior art' I think they are missing the potential for damage and undermining the whole system, that allowing these patents to go through does. Take an earlier example, somone slips through a variant of CSMA/CD through with another name, its allowed and then we have a problem because everyone using Ethernet and many other media types suddenly owe royalties.
Patents are good, Copyright is good, thats not the argument here. The argument is that through the abuse of big business/laziness/ineptitude of the institutions responsible for implementation and general lack of any coherant plan to 'fix' them, neither Patents or Copyrights are fit for the purpose intended anymore.
No, allowing Apple to patent the shape of the iPhone is a lot like allowing GM to patent the shape of a Chevy model. And funnily enough, that happens all the time. Here's just one example for you, but there are many many more:
http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO2&Sect2=HITOFF&p=1&u=%2Fnetahtml%2FPTO%2Fsearch-adv.htm&r=1&f=G&l=50&d=PALL&S1=D0613645&OS=PN/D0613645&RS=PN/D0613645
I really don't understand why people persist in believing that design patents (and trade dress protections) aren't routinely used in other industries...
Assuming the patent office wasn't up and running when cars were first being created, there were may iterations of the car, with three or four wheels in different iterations, with the pedals existing (or not) in different configurations, steering wheel or levers, and lights, horns etc all over the place, rather than a standardised placing that has become what we expect. As I udnerstand it, and am ready and mentally prepared to be proved wrong by shouting fandroids, Apple's rounded corners was not on it's own the entirity of the case, and the entire look and feel of the device was what was being reviewed, rather than the whole case being pinned on the curvature of the intersection of external edges...
Therefore four wheels at each corner of teh chassis could be compared to a microphone-near-your-mouth-speaker-near-your-ear design that all phones need, and the design of that and the look and feel is the Chevvy aspect that distinguishes the phone...
The patent system is as broken as the copyright system - and for the same reasons.
Both started out in an innocent, idealistic world: let people who make things profit from them and be protected from nasty, naughty people who copy them and don't acknowledge (and by acknowledge, I mean "pay") the original creator, for the work they put in.
However both systems have been hijacked by "Big IP" companies, that don't innovate, themselves but simply deal in commodities and harvest the profits. The original creators don't profit from developing their ideas and directly receiving profits, at best they sold the patent and suing rights - at worst they were simply employees and are regarded as "assets", themselves.
By evolving a life of their own, outside of the world of innovation, both patents and copyrights have become the biggest obstacle that most individuals and companies face when trying to do something new. Whether that's because even the dumbest, most trivial (software) idea can, and is, patented - thus closing off vast avenues of innovation to all the other people who are in the same line of work. Imagine if an early music company had "patented" a popular chord progression and sued anyone else who tried to use it? Where would Orlowski's "huge social benefit" be there (apart from maybe putting Status Quo out of business)?
Patents and copyright are useful when there is a direct link between the inventor/creator and their use. Provided those rights are strictly limited, tightly defined and don't hamper the original work others (for instance by being continually extended, while there's still money to be made). Both systems should get back to basics and work on a "use it or lose it" basis, to stop patent warehousing making any innovation impossible.
> Patents and copyright are useful when there is a direct link between the inventor/creator and their use.
You mean like the link between the means of production and the consumption of the surplus value derived therefrom? As outlined in Marx, Das Kapital, volume 1, which alleges it to be the fundamental problem (nay, contradiction) in capitalism?
While your article was reasoned and so is your response it omits to consider the valid grounds from which the dissenters arise - they were dissenters before you published your piece.
Apple's patent battle failure in Tokyo, Germany and UK is noticed and isn't without implication; and Apple's strategy is widely considered an abuse recognized on publications more notable than this one.
It is likely that the more vocal opponents of what is wrong are the more extreme, but the position that proponents of patents mean and that nice people benefit as well hardly answers the objections.
Your piece merely attracted the attention of a well established artillery.
This post has been deleted by its author
I certainly know from all the patents I filed that writing them was HARD work and the UK patent office in particular would be VERY picky about potentially related prior patents.
(Although all this Apple/Samsung stuff isn't really about what most people would call inventions anyway)
Actually, it was the legislature, not the judiciary that was first compared with sausage manufacture:
Je weniger die Leute darüber wissen, wie Würste und Gesetze gemacht werden, desto besser schlafen sie nachts. (The less that people know about how sausages and laws are made, the better they sleep at night.) - Prince Otto Eduard Leopold von Bismarck, Duke of Lauenburg (1815-1898)
The question is how to fix it though. When I started studying the patent system many years ago, I thought that this was an exceedingly hard but achievable goal, but I'm no longer so sure about the achievable part. During this time, the relevant point of influence seems to have drifted from the WIPO to the WTO and onward to multilateral trade agreements where outside influence seems very hard to achieve. I am about to give up on the whole idea of patent reform. Amusingly enough, it seems that big moneyed outfits such as Google are one of the few new actors to have a chance of making an impact, and even they are struggling.
Saying that the patent system is sound in theory, but bad in practice is not necessarily an argument for it conferring more good than bad currently. It is rather an expression of either wishful thinking or ideology.
I would not say the patent system is broken per se. I would say the way the system works to benefit large corporate interests is. When you are super rich you can afford to hire a team to sit there all day scouring for things that are not patented. Create your own patent on ideas that have not yet come to fruition. Or. Although has prior art nobody actually patented yet and pay what is a relatively small fee (to the corporation but not the average guy) and sit on it if not yet invented in the hope you can extract royalties later. Or. Use it right now (as in the Apple vs Samsung cases) to sue those who did not patent it first.
It's actually relatively expensive and time consuming for the small guy to patent stuff. Even looking up whether something has already been patented is a bit of a chore and cost. But for large corporations it's their bread and butter. Apple have found a unique corner of the market in this respect.
Apple is abusing the system (like many other large corporations do). There should be a law in place to prevent this type of behaviour.
"The system needs to be fixed. Where do we start?"
It would probably have made your original article a lot more balanced had you acknowledged this to start with, rather than presenting the issue as a set of binary options (either "Patents are inherently brilliant and never abused" or "I HATE PATENTS AND ALL ABILITY TO EVER MAKE ANY MONEY EVER BECAUSE OF REASONS"). But anyway.
I would venture that a generally acceptable starting point on fixing the problem with the the patent system as embodied in the USPTO (which is where most accusations about failures in the patent system are aimed) would be:
* stop offering incentives based on number of patents approved
* implement a better prior-art examination system (you could possibly include some public-facing "submit prior art you think is relevant to this application" mechanism)
* enforce sharing of infrastructure-level technology with FRAND-type licensing
* for technology in particular, ensure that the effective lifespan of patent-related licensing rights is commesurate with the expected lifespan of the technology
Things I'd like to see would be a "use it, licence it or lose it" option for patents whereby someone sitting on a patent and insisting on ridiculous licence fees (ie substantially greater than their costs of development) while doing nothing to bring a product to market can have the patent appealed and, ideally, put into the public domain if they lose the case. That in itself would, I think, help cut down the amount of vexatious patent-related litigation.
I would suggest the only real fix the patent system needs is to make patents non-transferable.
Change their status from being a "good" that can be bought and sold, or otherwise having a value to being a recognition: something that confers a right directly on the patenter, but not on any subsequent parties.
So when the patent-holder (be that a person or organisation) ceases to be: either through death, bankruptcy or acquisition, or after a set period of time (long enough to be an incentive, short enough to not stifle innovation) the patent simply goes away. After that anyone and everyone becomes free to make, use, develop or sell the subject of the patent, without any fear of litigation.
Hmm.
The problem there is that if a patent can't be transferred, but becomes public domain upon the collapse of a company or death of an individual, what you do is create a system whereby there is an incentive for individuals and/or organisations who wish to use a patented idea without paying for it to commit murder and/or play Hostile Capitalist Silly Buggers in order to force the patent into the public domain. Whereas when transferability exists, they play a slightly less murderous version of the game whereby the patent holder is convinced to sell it to them - and this is preferable (to those who might other be murderously inclined) because the idea remains exclusively theirs rather than in the public domain.
I do agree that trading in patents is problematic, and in general as with copyright the duration should generally be shorter unless evidence can be provided that suggests a generally long lifespan for the tech itself.
Unfortunately, making them non-transferable would result in a lot more smaller inventors dying penniless than already happens.
Patents (and copyrights) are very necessary. The problem is the system is being gamed by abusers and needs an overhaul to get rid of the huge amount of prior art which is getting through in the USA as well as the flat-out unfair legislation which has been passed to extend patent and copyright periods well beyond "reasonable".
There's also a lot of confusion because the US also calls "patents" what the rest of the world calls "registered designs".
Many years ago the USPTO faced a lot of litigation because it was "too strict" in issuing patents and it's swung to the other extreme. Hopefully things will stabilise in a reasonable time.
I have an ever increasing mental list of companies that I do not want to do business with.
Apple have joined that list because they appear, rightly or wrongly, to be big bullies.
My problem is that, at this rate, I *will* have to live in a cave because *all* the globalized corporations seem to be becoming evil bastards. Not caring for their customers and not wanting to pay tax for example. In some cases (banks?) not caring for their shareholders either.
<------- Troll icon because I might have to live under a bridge after someone patents cave dwelling.
The Register 
Biting the hand that feeds IT
Copyright. All rights reserved © 1998–2024
