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More ammunition why patents are EVIL

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MSchantz:
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:

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)
--- End quote ---

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

Renegade:
+1 for 40hz - Well spoken as always. :) (Can't say the same about myself~! :P )

@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... :P )

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:
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)
--- End quote ---

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.com/sol3/papers.cfm?abstract_id=1868979

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