I am always disappointed to see the usual attacks on the patent system. We have underfunded the Patent office, ignored the system and its requirements for so long it developed warts.

From both a societal and an investing perspective, it is important to protect Intellectual Property rights. We want to encourage entrepreneurs and innovators to create and invent, and protect them from those who would simply steal their inventions.

Regardless, here is a healthy critique of what is wrong with the patent system — in particular, I am concerned about the patent warehouses:

click for complete graphic

Full size infographic after the jump

~~~

patents infographic

Source: http://frugaldad.com

Category: Digital Media, Intellectual Property

Please use the comments to demonstrate your own ignorance, unfamiliarity with empirical data and lack of respect for scientific knowledge. Be sure to create straw men and argue against things I have neither said nor implied. If you could repeat previously discredited memes or steer the conversation into irrelevant, off topic discussions, it would be appreciated. Lastly, kindly forgo all civility in your discourse . . . you are, after all, anonymous.

16 Responses to “The Problem With Patents”

  1. Greg0658 says:

    if we lived in a different environment .. that patent on life in the pursuit of cash, bread, AIR .. this issue would be much resolved into peer reviews of the item .. and Not the grasping/gasps for AIR

    the ‘isms struggle for our species

    ~~
    I’ve read the picts later .. to stay in the system of today .. for the fun of it

  2. mathman says:

    Add this to the list of all the monumentally wrong stuff consuming our country and returning us to a feudal state:

    http://jonathanturley.org/2012/01/07/americas-transcendent-issue/#more-43681
    (from the link, there’s more before and between the quotes)
    “The collapse and bailout of our banking industry has cost us trillions and appears to have been brought about by fraudulent practices on the part of the industry, yet no one has been indicted. In fact the remuneration of top executives in this duplicitous industry has actually increased. Efforts to impose stiff controls ensuring that these artificial crises don’t happen again and that these huge financial entities do business ethically, have failed to pass the Congress. We see that the fallout from the American banking crisis has undercut the world’s economy and that economic crises in other industrialized nations appear regularly. Please notice I’m only referring to the economic problems we face and only producing a partial list of those economic problems.

    My conclusion is that with so many problems to deal with in our country our efforts to bring significant reform must “follow the money”. If we can’t limit the destructive effect of wealth upon our political system, our efforts at dealing with the many other issues destroying our Constitutional government will fail. I believe we must start here. What do you think? Below are links to organizations that have been formed to fight the influence of wealth and to overturn Citizens United. If you agree with me you might check some of them out to see if they are worthy of your support.”

  3. Orange14 says:

    BR, one correction to your post. Patent office is funded by user fees paid by applicants and not the US Govt so “we” are really not underfunding it. The bigger issue is the scope of patents which have gotten out of control in the digital age and unfortunately these are left to the courts to sort out.

  4. V says:

    I don’t know if profiteering is the word, morelike rent seeking.
    Essentially extracting rents from IP you didn’t invent.

  5. ToNYC says:

    “I don’t know if profiteering is the word, morelike rent seeking.
    Essentially extracting rents from IP you didn’t invent.”

    Like all the misguided people who want music for free; you can bet that
    they never wrote their own song. Wholesale serial copying and profiting without 90% author’s royalty single-digit pennies of payment is the continuing theme of patent-basher nihilists.
    It’s the masters of the universe that complain they must pay the price. Without the carrot, the stick is no longer useful, except to beat that dead horse that was a magnet to the free world in the US.

    Pay more attention to reforming the banks that control the extraction schemes than the patent system that relentlessly brings us in to the US, the world’s brains.

  6. constantnormal says:

    Perhaps the best solution would be to change patent law and make it impossible for the originators to sell or assign their patents to anyone else, only to sell licenses, exclusive or non-exclusive, for terms not to exceed ten years.

    THAT would shake up the industry a bit, and would eliminate patent trolls completely (I think).

    Think of this as one of those destabilizing changes that drives progress forward …

  7. leeward says:

    as a non-tech person what I need to know is this: are we giving protected status to coding inventions that would be realized by others in a few years or less? Is the time scale for coding inventions fundamentally different than say pharmacology research? Who is deciding this now for us? The shovel was a cool invention but are we patenting 1000 (or more) different kinds of coded shovels ? And are the existing patents on these “shovels” slowing actually innovation?

    The last sentence of this post is an all too common complaint in this era.

  8. jaymaster says:

    As an engineer with 20 or so patents, this topic is near and dear to me. IMO, the system is near broken. But most of that has to do with globalization, and corrupt systems in most emerging markets. Maybe corrupt isn’t the best word. A more PC description might be systems with different cultural values.

    Patents are practically worthless in most of Southern Asia, Eastern Europe & Russia, and South America In other words, in the very areas where most growth is occurring.

    I’m one of the patent gurus at our company, and we made a conscious decision two years ago to cut way back on our patent applications. We went from around 20 per year down to 5 or 6.

    Oh, and our cost per application is around $8000-$10,000. But the real cost is in trying to enforce the patents when (and if) we find an infringement. Then we’re looking at multiple thousands of dollars in legal fees and years in court.

    The only major complaint I have with the current US system is the amount of time it takes to issue a patent. What used to be a 12-18 month process is now around 24-30. The internet should have made the process shorter, not longer.

  9. dwkunkel says:

    What seems to be happening in a lot of tech companies is the filing of defensive patents. I’d like to see all patents expire 7 years after they’ve been approved.

  10. bergsten says:

    Some other data points from someone who has invented over a dozen granted US Patents and has done expert witness consulting for Patent prosecution and defense…

    - The cost to obtain a Patent is closer to $10K than $700 — the amount varies based on how many times a Patent is rejected by the Patent Office. Virtually all Patents are rejected the first time or two around (see below).

    - There are Midwestern Patent attorneys who charge a fraction of the amount charged by big-city attorneys, and many big companies use them to save money, especially for initial filing. In house attorneys pretty much just manage the process.

    - Patent Office Examiners’ performance is judged by the length of time a Patent sits on their desk. Therefore, their strategy is to reject everything at first (to hopefully make them go away). If one insists on coming back over and over, the strategy changes to “just grant it — let the Courts sort it out.”

    - Big companies get their Patents granted almost automatically, and far faster than “small folk.” I had one that went back and forth for almost ten years, while Apple. Microsoft, and IBM seem to get theirs granted in less than six months.

    - Big companies create Patents in order to cross license them to other big companies, thereby avoiding the chance of infringement litigation. With notable exceptions (TI) and Patent Trolls, they can’t be bothered chasing others down for infringement, their sole interest is in the trade (as this effectively multiplies their Patent umbrella. This, by the way shareholders, is lost revenue.

    - Patent infringement is big money for attorneys and consultants and most cases are settled out of court. I sat in pointless meetings with two dozen people billing $250 hour and I was the cheapest costing person in the room (my rate was then also inflated by my company and further inflated by the law firm).

    - Trolls go after the weakest “infringers” first (who can’t afford to defend), then use these “victories” as precedent against the next bigger fish.

    - Many Patents, especially in technology, are for completely esoteric, minuscule, and trivial things (since the big stuff is already done). This of course makes the entire Patent granting process that more prolonged and difficult as it’s hard to prove “non-obvious to those schooled in the art…”

    - Patent Claims are written to be incomprehensible, and common English words mean different things in Patents than they do in common usage. This grants the Inventor a Patent while preventing others from learning from it (which was the point of Patents in the first place). It also inflates attorney costs as the Courts are forced to have to rule on what a Claim actually, well claims.

    - I’m a bit vague on the current status of this one, but Patents can be “continued” with alterations and additional filings. Used to be (and maybe still is) big companies would keep a Patent in the process virtually indefinitely to extend the Patent’s useful life (the term was “submarine Patents”).

    The bill for all of this sage consulting is in the mail.

  11. Stan Klein says:

    First, on the funding — the Patent Office is indeed funded by user fees, but only by the fraction of user fees left over after a lot of the money has been siphoned off for the general fund. That was a major part of the battle in patent reform where the budget issues intervened to prevent it from being fixed.

    Second, we are just beyond the point — and it took a Supreme Court ruling — where what is obvious to a Person Having Ordinary Skill In The Art (PHOSITA) didn’t have to be proven by having been formally published by someone. In other words, the idea of putting A and B together was regarded by the courts as non-obvious unless the suggestion to combine them had been published. Apparently it is very difficult for lawyers and judges to figure out what techies regard as obvious.

    Third, on software — one problem is that it is very difficult to determine if an idea has already been implemented. Within the last decade Microsoft was issued a patent for a widely used function that had been in Unix for roughly 30 years. Also, very often a patent is so broad it actually covers all solutions to a supposedly newly discovered problem rather than a single solution to the problem. The problem itself is essentially patented rather than the idea for solving it. Instead of patenting a new kind of faucet, what they patent is anything that turns the flow of water on and off — except that being software it isn’t as clear as that.

  12. ToNYC says:

    - Many Patents, especially in technology, are for completely esoteric, minuscule, and trivial things (since the big stuff is already done). This of course makes the entire Patent granting process that more prolonged and difficult as it’s hard to prove “non-obvious to those schooled in the art…”

    “sincethe big stuff is already done”. Sic semper lignis.

  13. VennData says:

    These business process patents are akin to those crazy Defense Department $200 hammers that get played up in the media. WHAT? You’re patenting what? A “process” to save taxes on options?

    http://www.nytimes.com/2006/10/20/business/20norris.html

    …hedging weather costs?

    http://www.nytimes.com/2010/06/29/business/29patent.html

    With the right wing Supreme Court fucking things up again. Voting has its consequences.

    The 1998 court ruling allowed for business process patents, not Congress. It’s taken years for Congress to do something. Obama rammed this one home…

    http://news.yahoo.com/obama-signs-1st-major-patent-law-change-since-153819335.html

    … with bi-partisan support. The key feature being the first-to-file stream-lining feature.

    I know, I know you want your taxes cut.

  14. Frwip says:

    Having quite a few patents under my belt and two more in processing right now, I will state without any ambiguity that 99.9% of all patents, mine included, are pure, unadulterated crap. They are nothing but a pest, a complete nuisance that stands in the way of what is actually hard and useful, getting things done. Each and every time I’ve had to deal with patents, it was a complete loss of time either to file my owns or comments on others’, or to defend against trivial claims through the time lost in digging up prior art, either published or in-house. Net result is just that : lost of time, money and occasionally delays to a product to quickly work around a still-to-be-adjudicated claim.

    I agree with what other commenter already said in particular Stan Klein. Yes, extending the scope of a patent beyond its (generally trivial) terms is a major, major issue that must be tackled heads on by the courts. Frankly, it should lend the attorneys and the assignees in jail for extortion when they do that. At least, one particularly noxious practice seems to have disappeared, the so-called “submarine” patents.

    But the core of the problem is that the standards of novelty are far, far, far too low.

    Was the stuff I patented novel? Yeah, in a sense. In the narrowest, most trivial sense of putting A and B together, which, according to a review of the existing “art”, had never been done before, simply because nobody had stumbled upon the need to put A and B together. Purely defensive stuff. No worry, it would hold in court if challenged and any one going after them would get a nasty run for their money. But was any of them a progress for humanity in any shape or form, no matter how minor or trivial? Emphatically, NO. It was just stacking random claims throughout the prairie.

    The standards for novelty should orders of magnitude higher. Only the truly groundbreaking, never done before, never thought of, never imagined before (*) should be worthy of a patent. Like the incandescent light bulb. All in all, there should be a few hundreds patents awarded each year in the US, may be one thousand in an exceptionally glorious year for invention. That’s it. The rest, the 150,000 pieces of crap littered each year by the US PTO, should go straight to the shredder.

    Incidentally, I actually invented a couple of things I’m really proud of in the course of years. Truly novel and useful stuff. Not novel to the point of reaching the very high standards I would like to see applied to patents but hard stuff I really had to sweat off and end up with an elegant, robust and broadly applicable solution. I made sure my company did not patent them. You see, they may be useful to someone else one day.

    (*) In particular, with a thorough review of not only technical publications but also science-fiction. A cursory read of William Gibson ‘s body of work would be enough to throw out every single one of the “over-the-Internet” patent lice.