Author Topic: More ammunition why patents are EVIL (Read 28886 times)

MSchantz · « **Reply #25 on:** July 05, 2011, 07:57 AM »

Thank you for your comment, @zridling, but some of your facts are, well, not facts. They're false.

A patent application trying to cover "Brown-colored desks" would have been invalid in 1789 and all the more today. Everyone would know it, and it would be worthless. That's a straw man argument, worthless as an example for productive discussion.

The US currently has a first-to-invent system, as it has had since its inception. The America Invents Act, which is still pending before Congress (the House and Senate have passed different versions, which are likely to be reconciled and passed, then signed by the President) would, beginning at some future date:

move the US patent law to a first-to-file system. This change might be profitable for some attorneys who work for big companies (who have the cash to pay for a race to the Patent Office but also have the clout to drive down attorney rates), but it won't give any windfall whatsoever to patent attorneys who serve small inventors.
allow the U.S. Patent and Trademark Office to spend/reinvest all of the fees it collects for the first time in many years. That is, Congress has siphoned off money from patent applicants' fees to pay for its other spending projects, allowing that backlog to grow severely. The AIA will probably allow the USPTO to keep/spend applicants' fees.

Most inventors hate the backlog as much as noninventors, as do I. The delay and uncertainty it introduces make patent applications less valuable. In fast-moving markets, the sometimes seven-year wait for an examiner's first substantive evaluation of an application eviscerates the value entirely.

I am a patent attorney, and I serve inventors from the garage to the post-doctoral academic lab to the large company. I would love to have a discussion about patent policy and the US patent system, but I would not love to spend all of my time clearing up misinformation and baseless vitriol. @zridling, do you really prefer the latter?

40hz · « **Reply #26 on:** July 05, 2011, 09:03 AM »

I am a patent attorney, and I serve inventors from the garage to the post-doctoral academic lab to the large company. I would love to have a discussion about patent policy and the US patent system, but I would not love to spend all of my time clearing up misinformation and baseless vitriol. @zridling, do you really prefer the latter?
-MSchantz (July 05, 2011, 07:57 AM)

First up, I'd like to welcome you to DonationCoder. Although we're an occasionally opinionated and feisty group of technical types, I think you'll find this forum is one of the more civil places to have a discussion on the web. So welcome and well met MSchanz! We hope you'll participate in the dialog and come back often.

re: patents, patent law, and misconceptions

I think all of us here would welcome your comments and expertise with open arms (and ears) if you'd care to share.

Please understand, however, that most of us aren't attorneys. So please try to be patient with what may seem to you to be silly questions or attitudes about patents. With input from a professional such as yourself, I'm sure the discussion would benefit greatly - and greatly reduce the number of misconceptions about patent law many of us have.

Perhaps you could start us off with a new discussion thread about how patent law really works so we can move away from the negative tone found in this one?

MSchantz · « **Reply #27 on:** July 05, 2011, 09:54 AM »

Good idea, 40hz, and thanks for the kind greeting. I'll see what I can put together over coffee in the morning.

Renegade · « **Reply #28 on:** July 05, 2011, 10:13 AM »

+1 for 40hz - Well spoken as always.

(Can't say the same about myself~!

)

@MShantz - I think zridling's comment about brown desks was purely sarcastic. i.e. What color is wood?

I am most certainly weak in the law-side of patents, and I'm quite certain you could school me on more than a few things there.

(Not that my inner anarchist actually cares what the law is...

)

So, I'd like to second 40hz's invitation to hop in on the discussion. The whole patent thing comes up quite a bit here. It would be fantastic to have another chime in, and most certainly a more schooled voice on the subject.

zridling · « **Reply #29 on:** July 06, 2011, 01:30 AM »

Thank you for your comment, @zridling, but some of your facts are, well, not facts. They're false. A patent application trying to cover "Brown-colored desks" would have been invalid in 1789 and all the more today. Everyone would know it, and it would be worthless. That's a straw man argument, worthless as an example for productive discussion.... I am a patent attorney, and I serve inventors from the garage to the post-doctoral academic lab to the large company. I would love to have a discussion about patent policy and the US patent system, but I would not love to spend all of my time clearing up misinformation and baseless vitriol. @zridling, do you really prefer the latter?
-MSchantz (July 05, 2011, 07:57 AM)

MSchantz, you missed the <sarcasm> present in 'brown-colored desks'; it was meant as a glaringly silly illustration, not fact. But believing that the Patent system is screwed is not vitriol, it's a fact, and especially so with regard to software patents. It's a system that provides you endless work and income, but unless you're seeking to reform it, you're part of the problem by participating in it.

So I ask:
We are witnessing a classic patent thicket in the realm of smartphones, with every major tech/telecom company in constant litigation with every other tech/telecom company on the planet? Patent infringement cases in the software industry has tripled in the past ten years Given that you're a patent attorney, what are three bad things you see with the system in this [digital] century?

Take as a recent example Oracle suing Google: "Google, if found to infringe, would owe Oracle between $1.4 to $6.1 billion dollars -- a breathtaking figure that is out of proportion to any meaningful measure of the intellectual property at issue. Even the low end of Cockburn’s range is over 10 times the amount that Sun Microsystems, Inc. made each year for the entirety of its Java licensing program and 20 times what Sun made for Java-based mobile licensing." It's as if Oracle's Larry Ellison is trying to make billions off of patent infringements, not do business. Another recent example this week is Apple being granted a multitouch patent, i.e., if you design a tablet or phone that can use two or more fingers on its display screen, Apple can sue you. Software patents provide too little incentive for too much litigation in the tech industry. Little is gained by granting such intellectual monopolies to such companies like Apple. The [software] patent experiment ha no doubt failed except to employ a lot of lawyers and eat up a lot of court time.

_______________________________
Links:
James Besson: A Generation of Software Patents (wrote a great book in 2009 titled Patent Failure, which is about the US Patent system in general.)
http://papers.ssrn.c...?abstract_id=1868979

rjbull · « **Reply #30 on:** July 06, 2011, 08:23 AM »

With the proviso that my experience was related to the ink industry, and people here may be thinking too much of US practice/malpractice, and of software patents:

#1: "Open source" the patent review process. Anyone can submit a patent and once submitted they have first chance at being granted one, but like any patent their application must be reviewed for prior art, uniqueness of the invention, etc. This should be judged by the population at large, not by a relatively few patent evaluators who couldn't possibly individually have the education necessary to properly evaluate evey patent.
-JavaJones (July 11, 2010, 04:04 PM)

It already is, at least in Europe/UK. That is, as soon as an application is made, anyone can inspect the details. When I was at work, we used to take Derwent patent bulletins which listed both applications and granted patents in most countries of the world. I've been to libraries to read the originals, though nowadays you'd just download and read a PDF. The Japanese Patent Office even has a quite good (if slow) on-the-fly translation system.

90% of patents would probably be thrown out within a week, either because there is significant prior art out there (nothing is better at finding prior art than "the crowd"), or because the invention is obvious and can be demonstrated to be so.

The usual phrase is "obvious to those skilled in the art", i.e. it doesn't have to be obvious to the man in the street as long as it's obvious to people in the industry.

#2: Incentivize the *application* of patented ideas. Or, to look at it another way, discourage or penalize those who patent something and don't actually implement it in a product or service.

I believe that UK law expects the holder to "work the patent."

#4: Patent term reform. [...]I think anything more than 2 or 3 years of market *exclusivity* is unnecessary. If you figure the development of very complex technology may take 3 or 4 years to bring to market, and then add on 2-3 years for sales exclusivity, then perhaps 6-8 years makes more sense. I'd be OK seeing 10.

Big Pharma would be very unhappy with that. They would contend that the cost of developing and fully testing a new drug is so enormous that they absolutely must have a long term to recover their investment.

Renegade · « **Reply #31 on:** July 06, 2011, 03:02 PM »

#4: Patent term reform. [...]I think anything more than 2 or 3 years of market *exclusivity* is unnecessary. If you figure the development of very complex technology may take 3 or 4 years to bring to market, and then add on 2-3 years for sales exclusivity, then perhaps 6-8 years makes more sense. I'd be OK seeing 10.
Big Pharma would be very unhappy with that. They would contend that the cost of developing and fully testing a new drug is so enormous that they absolutely must have a long term to recover their investment.
-rjbull (July 06, 2011, 08:23 AM)

Then again Big Pharma are notoriously evil. Their own records demonstrate that they are disgusting liers.

e.g.

http://www.techdirt....-big-pharma-rd.shtml

A few months ago, the pharmaceutical industry was throwing around careless numbers to justify the exorbitant price of its products. The "industry standard" of $800 million to develop a new drug had inflated to $1.3 billion (presumably thanks to non-existent inflation), but some digging around in the very same dataset produced a completely different number: $35 million. Sure, that's not exactly "walking around" money, but it's a lot easier to recoup your investment if you don't overstate it by $1.26 billion.

That's a lie of overstating costs by about 37x.

There needs to be some good-faith, and Big Pharma doesn't have any of it. If you read on the topic, it only gets worse... Much worse... The above is merely the tip of the iceberg.

How can anyone have faith in a system that is so blatantly abused? It is little different than Animal Farm^w.

When it comes to medicine, one has to wonder just how genuine the "we want to help people" thing is. I simply can't stomach it. e.g. http://burzynskimovie.com/ - A very scary thing there... One has to wonder what kind of motivations are behind the FDA's attempts to stamp out a single doctor. Big Pharma with patent concerns? It's hard to see much in the way of other motivations.

But that's an extension from patents to the market, and how things can go horribly wrong in the process there.

tomos · « **Reply #32 on:** July 06, 2011, 04:47 PM »

Pretty off-topic but just a quick comment on the above -
The other side of the coin is that you get a lot of pretty crazy conspiracy theories.
Which is why I avoid the term "Big Pharma"...
Of course,
I wouldnt trust any big corporation with anything else, so I especially wouldnt trust them with my health.

40hz · « **Reply #33 on:** July 06, 2011, 05:36 PM »

Pretty off-topic but just a quick comment on the above -
The other side of the coin is that you get a lot of pretty crazy conspiracy theories.
Which is why I avoid the term "Big Pharma"...
Of course,
I wouldnt trust any big corporation with anything else, so I especially wouldnt trust them with my health.

-tomos (July 06, 2011, 04:47 PM)

Which works great until you need a brand name "new medicine" prescription .

-/------

+1 w/tomos on dissing the "everything is a conspiracy" argument. I'm tired of conspiracy theories about everything from the gospels to the NASA moon landing. I'm not saying there has never been a conspiracy or that some aren't operating as we speak. But to hear some people argue (with the laughable "proofs" they product) about how virtually every bad outcome on this planet is the direct result of a well orchestrated conspiracy...well...I just have to shake my head in amazement at the levels to which the human imagination can soar.

rjbull · « **Reply #34 on:** July 07, 2011, 03:44 PM »

Then again Big Pharma are notoriously evil. Their own records demonstrate that they are disgusting liers.
-Renegade (July 06, 2011, 03:02 PM)

I have heard this before, and have no reason to plead their case.

How can anyone have faith in a system that is so blatantly abused?

By ensuring the system isn't abused? Isn't that part of what governments are supposed to be for? That is, I don't think the fundamental problem is having a patent system, it's lackadaisical enforcement and any abuse.

When it comes to medicine, one has to wonder just how genuine the "we want to help people" thing is. [...] But that's an extension from patents to the market, and how things can go horribly wrong in the process there.

Capitalism is very successful in making rich people richer, but almost completely blind to the needs of the sick, most especially if they're poor.

tomos · « **Reply #35 on:** July 07, 2011, 04:28 PM »

When it comes to medicine, one has to wonder just how genuine the "we want to help people" thing is. I simply can't stomach it. e.g. http://burzynskimovie.com/ - A very scary thing there... One has to wonder what kind of motivations are behind the FDA's attempts to stamp out a single doctor. Big Pharma with patent concerns?
-Renegade (July 06, 2011, 03:02 PM)

a very impressive film.
Burzynski already had a patent for his findings, yet 11 further patents for the same compounds were given to the National Cancer Institute in the 90's. While that was happening, the FDA were basically trying to bankrupt him with 99.99% groundless court cases and grand jurys. (Theory being: in the hope that he wouldnt be able to afford to fight his patent claim.)
Since then, FDA trials have taken place, and have been approved to proceed to phase III (final phase), dont know how long that takes, but sounds like it's going in the right direction.
Wow, a possible cure for cancer (well worth stealing

)

When it comes to medicine, one has to wonder just how genuine the "we want to help people" thing is. [...] But that's an extension from patents to the market, and how things can go horribly wrong in the process there.
Capitalism is very successful in making rich people richer, but almost completely blind to the needs of the sick, most especially if they're poor.
-rjbull (July 07, 2011, 03:44 PM)

seems to be the way

Renegade · « **Reply #36 on:** July 07, 2011, 04:56 PM »

Yeah... I must sound a bit kooky sometimes... But I'm not the only one...

From the "sanity check" department (or maybe the conspiracy department), Don Ho over at Notepad++ agrees with some of my kookiness, though he puts things forward without all the profanity.

http://notepad-plus-...han-japan-earthquake

Some things may seem kooky, but that doesn't make them any less real. e.g. 5 Grand Juries for the same thing. Bizarre.

As for the term "Big Pharma", yeah, I don't much like it either, but it was already brought up. It does sound a tad nutty.

Stoic Joker · « **Reply #37 on:** July 07, 2011, 07:56 PM »

As for the term "Big Pharma", yeah, I don't much like it either, but it was already brought up. It does sound a tad nutty.
-Renegade (July 07, 2011, 04:56 PM)

*Shrug* If the shoe fits...

zridling · « **Reply #38 on:** July 08, 2011, 12:42 AM »

Yeah... I must sound a bit kooky sometimes... But I'm not the only one.
-Renegade (July 07, 2011, 04:56 PM)

George Carlin (and I) agree with you, which is particularly apt today!

__________________
PS: DC's toolbar doesn't recognize YouTube's new link format.

iphigenie · « **Reply #39 on:** July 08, 2011, 02:18 AM »

To me the problem isn't really the length of the patents - if they are used and licensed reasonably, they can last a while without harm

As has been said before the two big weaknesses:

- patents granted that are too vague, too generic or too obvious. Let's assume patent offices no longer employ Einsteins and outsource a lot, and it shows... I mean, 1 click checkout? Blatant in computer related fields but increasingly happening, it seems, in biotechnology where patents have appeared for things like crossing two broccoli varieties by cross pollination... you know, the traditional way?
Companies have been quick to take advantage of that, with pragmatic reasons (i mean, most dont set out to be evil, just doing everything they can within the system to defend their business, which everyone would expect them to do) - after all if you dont do it,

- patents that the owner does not work or license, or at prohibitive rates. How the system should cope with this without overly infringing on the rights of business owners and inventors too much, and without turning punitive for the small operation (it can take a lone/small business inventor a while to get an idea ready for market) *is* a challenge
aside: a very damaging example of this are patents that are there to prevent competition that might be based on new, emerging techniques. Companies in health watch the publications and apply for vague patents on "the use of new technique X to the treatment of condition Y" - where they didnt invent or pioneer X and might not be researching its applications to Y, just defending a product they have that tackles Y's symptoms.

iphigenie · « **Reply #40 on:** July 08, 2011, 02:34 AM »

When it comes to medicine, one has to wonder just how genuine the "we want to help people" thing is. [...] But that's an extension from patents to the market, and how things can go horribly wrong in the process there.
Capitalism is very successful in making rich people richer, but almost completely blind to the needs of the sick, most especially if they're poor.
-rjbull (July 07, 2011, 03:44 PM)

Hang on here... Whereas there might be concerns certainly on the health research and treatment front capitalism can be said to have delivered a lot. It seems to me we live a long longer, and healthier, and don't have to put up with a lot of aches and pains that previous generations just had to put up with, and don't die anywhere near except from things that stem from our own lifestyle (eating crap, smoking, not moving) or the really tricky problems. From a patent perspective I think the system did work and deliver a lot until slowly the market evolved.

Now "the system" for applying and delivering these is starting to fail, but that is because we had a situation where all the actors in the chain benefited from costs rising. Drug and product makers? check. Insurance companies? you bet, their profit is typically in % of cost volume. Hospitals and practitioners? Regulators/government departments? yup, them too, size of industry increases their weight, importance and budgets. And, for the longest time, the consumer too - after all you pay enough for the insurance (or taxes, if paid by government) so you are going to make sure you get your money's worth and go for more consumption of services... People have been warning of this since the 70s, and we just carried on...

deleted but left in here to not undo history, but let's not hijack this thread

Renegade · « **Reply #41 on:** July 08, 2011, 05:50 AM »

As for the term "Big Pharma", yeah, I don't much like it either, but it was already brought up. It does sound a tad nutty.
-Renegade (July 07, 2011, 04:56 PM)

*Shrug* If the shoe fits...
-Stoic Joker (July 07, 2011, 07:56 PM)

It fits all right.

Yeah... I must sound a bit kooky sometimes... But I'm not the only one.
-Renegade (July 07, 2011, 04:56 PM)

George Carlin (and I) agree with you, which is particularly apt today!

__________________
PS: DC's toolbar doesn't recognize YouTube's new link format.
-zridling (July 08, 2011, 12:42 AM)

I love that guy! He's over the top hysterically funny, and twice as smart.

Stoic Joker · « **Reply #42 on:** July 08, 2011, 06:36 AM »

George Carlin (and I) agree with you, which is particularly apt today!
-zridling (July 08, 2011, 12:42 AM)

Amen to that! I have long maintained that George Carlin was the only true sage of the 20th century. He forced us to look at things (and ourselves) for what they really are...and not what we believed, or wanted them to be.

zridling · « **Reply #43 on:** July 08, 2011, 06:59 AM »

More ammo from James Firth on why software patents have to go:
http://www.slightlyr...s-way-more-than.html
"Patent holders are in a monopolistic position, and the limits to what they can charge for licensing relatively small components are not governed by normal market forces. It's a pay up or else scenario...."

Kirby Ferguson
Everything Is A Remix: The Invention Edition
http://www.techdirt....ention-edition.shtml
"The key point, which critics will undoubtedly skip or gloss over, is that he's not just saying that copying is good. He's saying that copying is one part of the very important process of innovation. Copying is a component, but the important part is then taking that copy and doing more with it."
----> (Yea, Apple, Microsoft, and Linus never copied anything, don't ya know?)

via Mike Masnick:
We Need To Let Go Of The Idea That Our Creations Are Utterly Ours
http://www.techdirt....e-utterly-ours.shtml

40hz · « **Reply #44 on:** July 08, 2011, 07:11 AM »

I have long maintained that George Carlin was the only true sage of the 20th century. He forced us to look at things (and ourselves) for what they really are...and not what we believed, or wanted them to be.
-Stoic Joker (July 08, 2011, 06:36 AM)

I'd add the comedian 'Gallagher' (Leo Anthony Gallagher Jr.) and writers George Ade, James Thurber, and Jean Shepherd to the list of 20th century sages as well.

(Note: Members of the Little Orphan Annie Inner Circle can hear some of Shepherd's best over at the Flick Lives! website. No secret decoder required.

)

Stoic Joker · « **Reply #45 on:** July 08, 2011, 09:00 AM »

Ah yes! My favorite Gallagher line was:
There is a brightness knob on the TV ... But it don't work!

Renegade · « **Reply #46 on:** July 08, 2011, 10:32 AM »

Ah yes! My favorite Gallagher line was:
There is a brightness knob on the TV ... But it don't work!
-Stoic Joker (July 08, 2011, 09:00 AM)

Because "brightness" doesn't make it any more intelligent?