So How Do We Fix The Patent System?

from the stop-with-the-bad-suggestions dept

There's been a lot of attention lately to the massive problems with the patent system. Finally the problem has gone mainstream, in part thanks to the excellent This American Life episode on problems with the patent system. That seems to have emboldened other mainstream publications to finally run articles pointing out problems with the patent system, including the NY Times, the Huffington Post and PC World.

Then there's the Economist, who actually was one of the first mainstream publications to highlight problems with the patent system, only to change its mind and argue for more bad patents. However, it's flipped again, and is arguing (once more) that the patent system is broken and needs fixing.

And this time, unlike many of the articles lately, The Economist actually puts forth some suggestions on how to fix the patent system:
First, patents in fields where innovation moves fast and is relatively cheap—like computing—should have shorter terms than those in areas where it is slower and more expensive—like pharmaceuticals. The divergent interests of patent-holders in different industries have held up reform, but there is no reason why they should not be treated differently: such distinctions are made in other areas of intellectual-property law. Second, the bar for obtaining a patent, particularly for software or business methods, should be much higher (as it is in other countries), and the process of re-evaluating bad patents should be more open and efficient. Finally, there should be greater disclosure requirements of the ownership of patent portfolios, and patent cases should be heard by specialised courts (as happens in other areas of law), rather than non-expert juries in advantageous jurisdictions in Texas. That would make life harder for trolls. These fixes would help America’s patent system encourage innovation rather than litigation.
These are all pretty common suggestions that we've heard before. Unfortunately, while I think the overall article does a great job laying out the problem, these suggestions are the kinds of suggestions made by people who haven't spent that much time with the patent system (or who are somewhat unfamiliar with its history), and won't do much good.

Tim Lee beat me to the punch in debunking the whole "specialized court" notion, since that's actually a big part of the problem today. First, he notes that for all the talk of "bad" Texas courts and juries, the Texas jurisdictions have, unfortunately, become de facto "specialized" patent courts. And, on top of that, for the past 30 years or so, patent cases at the appeals level all go to a single appeals court, the Court of Appeals for the Federal Circuit (CAFC). This breaks one of the key parts of our court system, which has all those different circuits so that they can develop their own takes on laws, and the Supreme Court can help settle any disputes and circuit splits. With CAFC there are no more circuit splits, and in creating a specialized court, it made it easier for patent attorneys to influence the case law:
This had the unintended consequence of dramatically increasing the influence of the patent bar over patent law. Not only do Federal Circuit judges spend all their time hearing arguments from patent attorneys, but some of them are former patent attorneys themselves. In its first two decades, the Federal Circuit gradually shifted patent law in the pro-patent direction favored by most patent attorneys. Patents became easier to get and harder to invalidate. The courts allowed tougher punishments against infringers. And the Federal Circuit unilaterally eliminated traditional limits on patenting software and “business methods.”
Separately, he notes that the lack of circuit splits meant that CAFC totally rewrote patent law without the Supreme Court taking much notice, in the 90s. It only caught on in the last decade, and that's created quite a mess, since (as patent system supporters always argue) any changes the Supreme Court makes to roll back CAFC excesses "upset the apple cart" of "established" patent law.
But when the Federal Circuit became the only court ruling on patent cases, there were no more circuit splits and no more competing legal precedents. That might be why the Supreme Court seems to have barely noticed that the Federal Circuit was dramatically reshaping patent law in the 1990s. The high court reviewed only about a dozen Federal Circuit decisions between 1982 and 2004, and the ones it did review tended to be on narrow, technical issues. The Supreme Court finally began to give the Federal Circuit’s handiwork some serious scrutiny when Chief Justice John Roberts took the bench. And the justices did not like what they saw. In the Chief Justice’s first three terms, the high court heard five different patent cases, and all of them resulted in unanimous or near-unanimous reversals of pro-patent decisions by the Federal Circuit.

But a lot of the damage had already been done. Hundreds of thousands of low-quality patents had been approved under the permissive rules the Federal Circuit had developed during the 1990s. Those patents may be technically invalid under recent Supreme Court decisions, but that’s of little help to a small company that can’t afford to litigate the question.
Separately, I'd argue that the Economist's desire to set up different rules for different "types" of patents opens up another massive can of worms. First it opens up all sorts of definitional questions. What is a "software patent"? There's no such thing in the law, and setting up specific definitions would just drive patent attorneys to seek ways to fit any particular patent under the types of patents that have the most enforcement strength and length. Defining patents into different buckets just opens up more opportunities for lobbyists to seek to define patents in ways that benefit patent holders, rather than fixing the real problems of the patent system.

So if we want to offer solutions instead of just "complaining," here's how we would fix the patent system (short of just scrapping the damn thing).

First, we have to define the real problem. And it's actually not that hard to figure it out: bad or unnecessary patents that are used to stop others from innovating. Defenders of the patent system often talk up how it "protects" innovators. That's almost entirely false. The vast majority of the patent system hinders innovators by making it more difficult for them to innovate. So a few key ways to stop the worst of the patent system:
  • Create an independent invention defense: We've been arguing this for years. If the patent system is supposed to protect innovators, the fact that it blocks even those who invented something entirely independently goes entirely against the principles of the patent system. Even in copyright law (generally seen as more strict than patent law) there's a defense based on independent creation. If you haven't copied someone's patents or were completely unaware of someone's patent, it's ridiculous to claim you were infringing on that patent.

    If you understood how infrequently patent disputes involve anyone actually copying a patent (or a patented invention), you'd realize how much of the problems of our patent system this would solve. Unfortunately, patent holders and the press (especially) frequently mislead on this point, claiming that patent infringement suits are about companies "copying" or "stealing" from the patent holder. That's almost never the case. Studies have shown over and over again, that even though you can get treble damages for showing someone willfully copied a patented invention, it's almost never asserted.

  • Recognize that independent invention is a sign of lack of patentability: This one is a bit more controversial, but the point of the patent system is supposedly only to reward patents on inventions that are non-obvious to those skilled in the art. If multiple people, skilled in the art, are coming up with the same thing independently at the same time, it seems like pretty strong evidence that, in fact, the ideas were obvious to those skilled in the art. There has been a lot of work done lately showing that nearly all major inventions are independently invented at around the same time by multiple people. And there's a view that's gaining support that basically what fuels such innovation is not patents at all, but just that all the factors necessary for the "next step" are in place, and those skilled in the art can just take that last step.

    Thus, in such cases where there is independent invention, it shouldn't just be a defense against infringement, but it should be evidence that any such patent is invalid, as it doesn't qualify as non-obvious to those skilled in the art.

  • Patent examiners should seek out input from those actually skilled in the art: Since the very standard for patentability is those skilled in the art, they should at least be able to weigh in on the patentability and obviousness of the solution in question. As it stands, patent examiners may be smart in a particular field, but since they don't actually work in that field, their knowledge is not always really up to date. I'm sure they try their best, but there's a difference between those who actually build stuff and those who don't.

    Patent system supporters hate this suggestion, and they often claim that "jealousy" will lead others to claim that an invention is obvious. There are easy ways to control for this however. We're not saying that if anyone says, "this is obvious," the patent is automatically rejected. Rather, we're saying that it's another source of data and input for the examiner to make a determination of obviousness. That is the person actually skilled in the art could present an explanation for why something is obvious, and the examiner can then take it into account, and use that as another bit of information.

  • Drop the assumption of validity and allow for greater post grant review: This is the one that really upsets patent system supporters, as they would like to go in the other direction. But, really, the arguments for assuming patent validity are really, really weak. As we've discussed before, the patent system gives one entity a full government-granted monopoly based on one person spending an average of about 16 to 17 hours on a single patent, and only hearing from the side who wants the patent. They almost never hear an adversarial position during the review.

    That's kind of insane when you think about it. If we're going to approve patents on such a flimsy system, the least we can do is admit that they can be opened up for review much more easily. Hell, why not use the system described in the point above (creating a panel of actual people skilled in the art) to evaluate patent appeals on any patent in dispute. It doesn't even have to be done during the initial examination if we get rid of the assumption of validity and the difficult current process to get post-grant review.
Do all of that and you'll have a much more functional patent system that gets rid of a significant portion of the bad patents and will encourage much more innovation. You don't even have to separate out different kinds of patents. This setup would fix many of the problems across the board, while still allowing patents on truly important "breakthroughs" that wouldn't have happened without the patent system. The only reason I can think of to go against these ideas is if you want to profit from bad patents yourself.


Reader Comments (rss)

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  1.  
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    ChurchHatesTucker (profile), Aug 19th, 2011 @ 8:00pm

    Kay..

    If you haven't copied someone's patents or were completely unaware of someone's patent, it's ridiculous to claim you were infringing on that patent.

    Doesn't that go against the entire rationale for the patent system?

    If you acknowledge that people can come up with the same idea independently (which seems to be implied by all the lawsuits) then why bother?

     

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    MrWilson, Aug 19th, 2011 @ 8:23pm

    Re: Kay..

    That's exactly the point. Why bother with a screwed up patent system at all if you're only punishing people for innovating the next logical step in the development cycle?

     

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    Anonymous Coward, Aug 19th, 2011 @ 8:29pm

    "So How Do We 'Fix' The Patent System?"

    ABOLISH IT!!!!!!!!!!!

    and

    Abolish the FCC for passing laws that effectively keep us ignorant.

     

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    Chris in Utah (profile), Aug 19th, 2011 @ 8:48pm

    Re:

    Release your content freely to those with the capability to develop it. Creditation is what immortalizes your name.

    Short of that the fruit of your time and labor are ones own and nobody will take that from me. If the attempt is made, may there blade chip and shatter.

    long live the fighters!

     

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    Anonymous Coward, Aug 19th, 2011 @ 9:00pm

    The best way to fix it is to make it more liberal, let them patent anything and everything, as vague as possible and let the system deal with itself and it will self regulate in time.

     

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    khory (profile), Aug 19th, 2011 @ 9:11pm

    Re:

    Isn't that what's going on now? I'm waiting for the self-regulation to kick in.

    In the mean time we are gonna have to pay more for things to support the cost of all this patent nonsense :(

     

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    darryl, Aug 19th, 2011 @ 9:24pm

    So How Do We Fix The Patent System?

    YOU DONT Mike..

    You are NOT part of the WE

    Sure, you can sound like you know what you are talking about and all official like, but you very well know that you are NOTHING when it comes to ANY DECISIONS regarding the patent systems.

    Nor, do you have ANY authority or respect in the industry that would make it possible for you to have ANY influence whatsoever in the patent world.

    It is quite clear by reading your various articles that you have a very poor understanding of the fundamentals of patents, or the law.

    Everyone know what your opinion is Mike, it is the opinion of whoever you can find on Google who happens to be talking about it.

    You almost never create your own original content, your the cut and paste kid.

    Do you do that because you know that if you said it yourself, it would be MEANINGLESS, that is why you do what you do.

    (this person from this reputable source said this, we are not as reputable, so we ride on their reputation).

    Mike what are YOU doing to do to fix the patent system ?

    NOTHING, not a thing, you never will, you wont even put your name on your OWN opinion, you have to find people that you think others might listen too and use their opinion.

    All you would or could do mike to fix the system (thats not broke) is to google enough times to find someone who is actually doing something constructive, and copy/paste.

    Mike we all know you REALLY REALLY REALLY WANT TO BE A PLAYER, and we all know that wanting something and being capable of it are two seperate issues.

    You can want to be a player all you like, but you are not, and you will never be.

    who is going to listen to you Mike when on a daily basis you display an amazing lack of basic understanding of patents, technology, copyright, business, finance, economics.

    In fact if find it very difficult to think of what you DO understand ?

    who will listen to someone like you when you constantly display this total lack of understanding.
    When people read you, they have to draw a conclusion regarding your motives.

    The two choices we really have are these.

    1) is he really that ignorant and stupid?
    2) is he just lying?

    or both, or does he do it because Google pays him?
    or does he do this because he has no idea of how to make a living in the real world.

    Mike, how are you going to fix the patent system?

    You aren't. and fortunately you never will be, because you have NOTHING to offer into the debate. And your opinion in the industry is totally worthless.

    If I have to fix a big complex electronics system (like a radar or something) I have to KNOW HOW IT WORKS, and KNOW HOW TO OPERATE IT.

    If you do not understand how something works you will never be able to fix it.

    You clearly do not know or understand how the patent system WORKS, yet you think if you tell enough people you do you can 'fix' it.

    We know you do not understand the patent system, Mike because you tell us all the time. You've made it very clear that you fail to even grasp the most basic concepts of patents.

    But that has never stopped you from making comment, but it does stop you making informed comment... or your OWN comments.

     

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    Anonymous Coward, Aug 19th, 2011 @ 9:31pm

    Re: So How Do We Fix The Patent System?

    There is so much irony in your comment I don't even know where to start. You could begin with an education, I suppose, but I'm not sure I would want to inflict you on a teacher.

     

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    Anonymous Coward, Aug 19th, 2011 @ 9:31pm

    Re: So How Do We Fix The Patent System?

    If he didn't grasp patents he wouldn't think they're broken.

     

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    Anonymous Coward, Aug 19th, 2011 @ 9:34pm

    excellent ideas

    thanks Mike. These look like very reasonable proposals.
    I'm looking forward to following the conversation on this article.

     

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    Anonymous Coward, Aug 19th, 2011 @ 9:38pm

    Re: Re:

    It didn't get extreme yet, wait a couple of decades and you'll see.

     

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    Anonymous Coward, Aug 19th, 2011 @ 9:43pm

    outside input

    Getting outside input may be challenging.
    If I was working on something similar, I'd want to let the examiner know, but how could I without giving up my own trade secrets? Or if the patent was granted anyway, have I painted a bullseye on myself by exposing the fact that i'm doing the same thing.

     

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    Anonymous Coward, Aug 19th, 2011 @ 9:45pm

    "35 U.S.C. 103 Conditions for patentability; non-obvious subject matter.

    (a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made."


    For the sake of accuracy, above is provided the relevant portion of 35 USC 103 that pertains to obviousness/non-obviousness. Between it, Title 37 to the Code of Federal Regulation, and the Manual of Patent Examining Procedure (MPEP), the determination of whether or not a claimed invention is deemed obvious/non-obvious is far more stringent than many unfamiliar with the substantive law would have others believe.

    Re the CAFC, it is not, and never has been, a "pro-patent" appellate court. It is not, and never has been, a court that some might view as patent "apologists". Moreover, it does not sit around all day and listen only to appeals concerning patent cases. Its jurisdiction is significantly broader. Importantly, its jurisdiction in matters under patent law is limited to cases "arising under Title 35", which means that in certain circumstances the other federal appellate courts continue to play a role.

    What the CAFC has done, as was the intent when it was formed by merging two previous appellate courts, is to bring some measure of stability and predictability to the field of patent law. Frankly, I happen to believe this is a good thing. If you think forum shopping at the district court level is a problem, I can tell you that the exact same thing was going on before the CAFC was formed, with the only difference being that the forum shopping was done at the appellate level.

    As for First to File versus First to Invent, changing US law in the interest of international harmonization is, in my view, problematic. People constantly complain about the Copyright Act of 1976 without realizing that it was also premised on international harmonization. Because copyright law was "harmonized", we now have the total absence of the formalities that had been a mainstay of US law for 200 years, as well as copyright terms that far, far exceed longstanding US law.

     

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    darryl, Aug 19th, 2011 @ 9:56pm

    Re: Kay..

    yes your right, and the entire process of patent approval is to ensure that it has not allready been submitted by someone else before. If it has been you lose, if not you win.

    The system allready has in place a method, that if you find something has been patented and you allready have a patent on that METHOD, you can challenge it in court.

    If you can prove your case you win, if not you lose.

    It is a fundamental concept that IGNORANCE is no defence in LAW.

    we are also in the 'information age' as some might of noticed, so the idea of 'independent invention' is essentually impossible.

    As mike has stated many times, NO one works in a vacuum.
    But people can most certainly draw from the general pool of knowledge and from that develop their own methods and patent them.

    Patents do not stop you from doing ANYTHING, except by using a specific method to do something.

    That is if you are not smart enough to think of your own way to do something, then you should reward the person who was smart enough and who has provided you with a method to achieve what you wanted to achieve.

    No one forces you to use patents, you are more than welcome to do it YOUR WAY.

     

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    darryl, Aug 19th, 2011 @ 10:04pm

    Re: Re: So How Do We Fix The Patent System?

    its absolutely clear he does not grasp the patent system or what patents are.

    It is easy to think something is broken if you do not understand how it works.

    You see it occur all the time, people who cannot work something claiming "this machine, thing, whatever" is broken !!!!".

    "No, its not broken you just do not know how to work it, or how it operates".

    I guess you have not read many of Mikes rants regarding patents, it is clear by WHAT HE SAYS, he lacks basic understanding of what a patent is, how you get one, and what they are for.

    If you do not understand those simple concepts you have no chance of being able to make intelligent comment or suggestions regarding patents.

     

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    Anonymous Coward, Aug 19th, 2011 @ 10:15pm

    Re: Re: Re: So How Do We Fix The Patent System?

    Actually, as someone who has spent time studying so called IP, I can say he has a very good understanding of patents.

     

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    Anonymous Coward, Aug 19th, 2011 @ 10:26pm

    Re:

    Also, abolish government established cableco monopolies for similar reasons. Abolish ALL government established monopolies!!!!!!!!!

     

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    Anonymous Coward, Aug 19th, 2011 @ 10:26pm

    Re:

    Also, abolish government established cableco monopolies for similar reasons. Abolish ALL government established monopolies!!!!!!!!!

     

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  19.  
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    Anonymous Coward, Aug 19th, 2011 @ 10:27pm

    Re:

    Also, abolish government established cableco monopolies for similar reasons. Abolish ALL government established monopolies!!!!!!!!! From government established taxi cab monopolies to copy protection laws to patents to mailbox delivery monopolies, each and every last one needs to disappear.

     

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    Skeptic, Aug 19th, 2011 @ 10:56pm

    Independent invention

    Two huge problems:
    1) it's extremely easy to fake an independent invention defense

    2) How long before something is independently invented does it take to make an invention "obvious" or "unpatentable"? A month? A year? Two? 5? 10? On what basis?

    3) Based on the answer to 2) above, you could potentially never be able to use independent invention as a defense. If your answer to 2) is anything more than a day, it effectively never happens. The USPTO estimates that less than 0.001% of filings run into interference issues these days... at most. Moreover, most IP lawsuits you see these days involve patents issued years before the infringing product was released. These are not cases of people simultaneously inventing the same thing. More often these are cases of years-old claims being applied inappropriately to something, and (overly expensive) litigation being the only way to resolve it.

    The last two suggestions, I could agree with, though. In this age of the Internet and Google, patents should be made equivalently easy to discuss and invalidate.

     

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    Anonymous Coward, Aug 19th, 2011 @ 11:17pm

    Re: Independent invention

    "Moreover, most IP lawsuits you see these days involve patents issued years before the infringing product was released. "

    [citation needed]

    and please provide evidence that the patent was looked at before the infringing product was released, especially given the fact that most patents never make it to product, at least not during the patent period, not by the entity who has the patent. Many of these patents are held by patent trolls, it's highly unlikely that tech and other companies (who would be discouraged to look at patents because of the damages that intentional infringement can bring) looked at the patent and copied it, knowing darn well that they can be sued for insanely unfair damages for doing nothing wrong.

    The more likely scenario is that the invention was too expensive to develop when the patent was issued to the entity that didn't intend to produce the product in the first place (a good chance that this entity is a patent troll), and as future technological advancements made developing the technology cheaper, someone else independently developed it.

     

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  22.  
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    Anonymous Coward, Aug 19th, 2011 @ 11:19pm

    Re:

    Yet the USPTO issues bad patents all the time. Most patents never even make it to product, and every patent that doesn't make it to product during the patent period (by the patent holder) is a bad patent.

     

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  23.  
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    Anonymous Coward, Aug 19th, 2011 @ 11:30pm

    Re: Independent invention

    "2) How long before something is independently invented does it take to make an invention "obvious" or "unpatentable"? A month? A year? Two? 5? 10? On what basis?"

    There is a huge disconnect between 'invention' and implementation. Any moron can sit around all day and come up with ideas, even meritless un tech savy lawyers and patent trolls, with no tech experience, can (and they do). Implementing it costs money. Often times the implementation of a technology is expensive when the technology is thought of, but a few years down the road, as technology progresses, the implementation becomes cheaper. It can take years to develop an idea after coming up with it, coming up with it is very easy and cheap and is not worthy of a patent, but implementing it is a whole different story.

    Invention and innovation will happen perfectly fine without patents. They have happened perfectly fine without them in the past. Patents should only exist to the extent that they promote the progress, nothing more. It is foolish to assume that every new idea deserves a patent. Government established monopolies are known to cause economic harm (and there is plenty of evidence that they harm innovation with little to no evidence that they help innovation) and no one is entitled to a government established monopoly. If you want patents to exist, the burden is on you to justify their existence, not on me to justify their absence. If you can't come up with reasonable criteria, backed with evidence and logic, to distinguish an obvious patent from an non-obvious one (that is, an idea that needs patents to emerge vs one that doesn't), then you can't establish reason for me to believe that patents are needed for anything to emerge and that's a criticism against the patent system. That's a good reason to abolish patents.

    The argument that patents should exist because there is no criteria to evaluate their utility (or the argument that everything should be patented because there is no way to evaluate their obviousness) is not an argument for patents, it's one against them.

     

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    Anonymoose Custard, Aug 19th, 2011 @ 11:42pm

    I have a better idea.

    Fire any patent examiner that approves any patent that is ever overturned, and invalidate all patents that they have ever approved. For patent examiners that have retired or quit, retroactively invalidate all patents they've worked on, and retroactively reverse their pay.

    That'll fix things in a big damn hurry.

    hey'll be so afraid to give any patents a pass, that they will essentially bring the patent system to a grinding halt - and save the economy billions of dollars in future litigation costs.

     

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    Anonymous Coward, Aug 19th, 2011 @ 11:45pm

    Re: Re: So How Do We Fix The Patent System?

    I think he drinks a lot.

     

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    Anonymous Coward, Aug 19th, 2011 @ 11:48pm

    Re: Re: Kay..

    Is that why patent system around the world tend to grant repeatedly patents for the same thing?

    So people can go out to court to keep fighting?

     

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    Mike Masnick (profile), Aug 19th, 2011 @ 11:57pm

    Re: Independent invention

    1) it's extremely easy to fake an independent invention defense

    I've heard this, but there are reasons to suggest it's really *not* that easy and, even if it was, not that many would use it. That issue was addressed competently in this paper a few years ago:

    http://law.bepress.com/cgi/viewcontent.cgi?article=1880&context=alea

    In that paper, Vermont notes that there's actually a much greater incentive *today* to fake an "I invented it first" claim, since we're a first-to-invent country, and if you fake that, then you get the patent and the other guy doesn't. And yet there's almost no evidence of such things being faked.

    So the idea that people would fake an indepednent invention is not very persuasive.

    2) How long before something is independently invented does it take to make an invention "obvious" or "unpatentable"? A month? A year? Two? 5? 10? On what basis?

    Why does there need to be a timeline? Once multiple independent invention has occurred, then the patent should be invalid.

     

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    Mike Masnick (profile), Aug 20th, 2011 @ 12:01am

    Re: outside input

    If I was working on something similar, I'd want to let the examiner know, but how could I without giving up my own trade secrets? Or if the patent was granted anyway, have I painted a bullseye on myself by exposing the fact that i'm doing the same thing

    Good questions. I think there are a few ways of dealing with this. First, you could require the examiner to keep that info confidential, and s/he would be the only one to review it. Alternatively, it's often possible to demonstrate that you're doing something similar w/o giving up the trade secret part of it. And, finally, if multiple people are already doing it, it's unclear that the trade secret is worth that much anyway...

    I've also thought that another possibility might be, rather than to explain or show the patent to a panel of experts, to simply ask about the problem the patent solves, and ask experts for their best ways to solve that problem -- and see if any are close to the patent, and use that to show obviousness.

     

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    Mike Masnick (profile), Aug 20th, 2011 @ 12:05am

    Re:

    Re the CAFC, it is not, and never has been, a "pro-patent" appellate court. It is not, and never has been, a court that some might view as patent "apologists".

    Anyone who claims this does not have much credibility on the subject. The research here is rather untouchable. CAFC was absolutely a pro-patent court in almost every manner.

    I can tell you that the exact same thing was going on before the CAFC was formed, with the only difference being that the forum shopping was done at the appellate level.

    Which misses the point entirely. At least with that you would get circuit splits that could be dealt with at the SC. You don't get that with CAFC.

    As for First to File versus First to Invent

    Who brought that up?

     

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  30.  
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    Anonymous Coward, Aug 20th, 2011 @ 12:32am

    Re: outside input

    "but how could I without giving up my own trade secrets?"

    Isn't part of the patent objective to encourage transparency? If they do not serve this objective, perhaps that's less reason to have them.

     

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  31.  
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    Anonymous Coward, Aug 20th, 2011 @ 12:32am

    Mike, nice long post, but you sort of went a long way around to say:

    "gut job" and "neuter the entire system" and "make it meaningless and risky".

    Post grant reviews is the most obvious way you want to gut the system, by removing certainty. A patent should be granted oin it's merits, and anyone who wants to challenge those merits should be doing it through the legal system, not a watered down "grant review" that would put almost every patent into a perpetual cycle of review and doubt.

    Independent invention isn't a sign of non-patentability, it is more a sign that something is significant enough for people to work towards. What you suggest is that as soon as two people or two groups are working on the same sort of thing, that the patent system should disappear. What you would create is the ultimate problem of secrecy, because if another group finds out what you are working on, they can start work on it as well, and kill any chance for a patent. Nice!

    I could go on, but safe to say that your proposals are designed to take away the true goals and meaning of patents, to make them less secure, to make them less valuable, and to make them incredibly easy to defeat, disable, or derail. Why not just admit you hate the system and call for it to be abolished, instead of beating around the bush and trying to kill it by "death by 1000 cuts"?

     

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    Aerilus, Aug 20th, 2011 @ 2:47am

    Re: Re: Kay..

    I know when I am told to develop something to solve a problems at work the first thing I do is hire a lawyer to search for patents that my solution want infringe upon my supervisor really approves of my initiative in making sure others IP isn't violated and has no problem sighing off of the thousands of dollars in legal fees.

     

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    Aerilus, Aug 20th, 2011 @ 2:58am

    Re: Re: Re: So How Do We Fix The Patent System?

    Thats funny when I see the majority of people having problem with something that I know I can get to work for me with a wealth of specialized knowledge I assume that the thing is flawed in that it is not friendly to its target market windows mobile 6.5 would be a great example unfortunately with the way we set up government android or ios or maemo can exactly come aloung and replace a flawed and outdated systems to make it usable by the people who need what mobile operating systems can do without needing a degree in computer science.

     

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  34.  
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    Anonymous Coward, Aug 20th, 2011 @ 3:08am

    Loser pays, plaintiff pays for discovery

    Two fixes would do a great deal to remove the ability of trolls to hold up companies for nuisance settlements: implementing "loser pays," like in most of the rest of the world, and requiring the plaintiff to pay for discovery. Rule 11 should prevent frivolous lawsuits in theory, but in practice judges almost never award sanctions in patent cases. I believe you can count recent instances on your fingers, and won't need your toes. Out of 3000 thousand or so patent lawsuits filed every year. Also, discovery is a real pain, and its high cost is one of the incentives to settle a non-meritorious suit for less than the cost of defending it. These are fixes that could be used in other areas of the law, by the way.

     

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    Zot-Sindi, Aug 20th, 2011 @ 4:16am

    Re: So How Do We Fix The Patent System?

    YOU DONT Mike..


    darryl's got a point, you know, mike

    there is no fixing something as critically broken and inherently ridiculous as patent (or IP, or copyright)

    well, there is, you know the way... *points at trashcan*

     

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  36.  
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    Crosbie Fitch (profile), Aug 20th, 2011 @ 4:50am

    Re: Re: Kay..

    The powerful bother, because patents are lucrative to those powerful enough to exploit them.

    The better question is: why do the people tolerate monopolies?

    Why do otherwise intelligent people refuse to see patents as the problem, instead of an ingenious solution that just needs fixing?

    Patents are a dynamo on the back wheel of a bicycle driving a motor on the front. Patents put a brake on mankind's use of technology in order to incentivise the patent holder with a monopoly rent. A hundredth of the energy lost in braking is channelled as wealth to the motors of industry. And people who don't understand thermodynamics can't understand that all these dynamo powered motors aren't actually producing any progress at all, but severely impeding it, rapidly grinding everything to a halt.

    The patent system is not broken. It never worked in the first place. It cannot be fixed. Patents are a parasite that enrich the few at the expense of the many. The industrial revolution attracted these parasites because it had ample energy to be siphoned off (wealth to be redistributed). Recognise that correlation is not causation.

    If you want mankind's technology to progress then restore our liberty to use and improve it.

    Abolish patent law.

     

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    Jose_X, Aug 20th, 2011 @ 6:24am

    It is horrible!

    >> Between [35 USC 103], Title 37 to the Code of Federal Regulation, and the Manual of Patent Examining Procedure (MPEP), the determination of whether or not a claimed invention is deemed obvious/non-obvious is far more stringent than many unfamiliar with the substantive law would have others believe.

    From this link, http://www.uspto.gov/web/offices/pac/mpep/documents/2100_2141.htm ,

    "In short, the focus when making a determination of obviousness should be on what a person of ordinary skill in the pertinent art would have known at the time of the invention, and on what such a person would have reasonably expected to have been able to do in view of that knowledge."

    This is an EXTREMELY low standard. I don't know how else to put it.

    Mike stated "non-obvious to those skilled in the art". He was being generous, as this suggests that perhaps it must be non-obvious to a great many people or even the majority, but the law and the USPTO documentation linked above (based on court rulings) clearly states non-obvious to "a person having **ordinary** skill".

    What this traslates to in English is, to use one of many possible interpretations, that if you have above ordinary skill (as a great many do in a field loaded with participants -- google "Bell Curve" for more details), then potentially every single patent that has ever been granted will be obvious to you. I'll repeat:

    potentially EVERY single patent that has EVER been granted will be OBVIOIUS to you

    Again why? Because the standard used was below your capabilities.

    The many people above ordinary are having to deal with the fact that every patent examiner can grant patents for things that they find obvious.

    Of course, if this "ordinary" aspect wasn't bad enough, what does non-obvious mean? It doesn't mean hard or extremely hard. Nope. It merely means that it wasn't easy aka obvious. It was at least a little more difficult than just plain old easy/obvious.

    Why are we granting any monopoly for what is virtually guaranteed to be easy to many of our smartest creators and perhaps simply "hard" or "challenging" to almost everyone of lesser skill? This makes no sense. This is a cookbook recipe to stifling our industries and academia, aka to stifling progress. This makes patent law, by its very definition, virtually guaranteed to be unconstitutional in not promoting the progress.

    If you have some enlightenment, please volunteer it, because it's looking horrible.

    .. wait, I have to add more.

    If a patent does include sophisticated information, and putting aside that the difficult part was probably already derived by mathematicians who are not awarded patents (thankfully), the reward mechanism of the patent system is such that the patent becomes much more valuable if claims are created so as to push down as far as possible against the low bar. This would allow many things not nearly that sophisticated (but related) to fall under its scope. Thus, with a good lawyer next to you, each patent created, no matter that some elements of some claims might be worthy of a Nobel Prize (let's assume), we still get all the other broad stifling junk claims to slow down progress. .. odds are.

    Finally (mostly addressed to Mike), software is different because the number of people who can participate is very much larger than for high cost inventions. This means a patent monopoly comes with a much large opportunity cost. Much more stifling. Much more hand-cuffing of creators and abridgement of liberties. Much less new or improved software created. Much less competition as well as collaboration than would otherwise exist. This is NOT a trivial issue, to multiply a negative effect by say 1000.

     

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  38.  
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    Anonymous Coward, Aug 20th, 2011 @ 6:41am

    Re: Re: Re: Kay..

    IOW, the patent was worthless when it comes to actually helping solve the problem and the search was only done for the sake of avoiding infringement. Abolish patents!!!

     

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    Jose_X, Aug 20th, 2011 @ 6:48am

    Re: Independent invention

    >> Two huge problems:

    One huger problem: the other side of the coin.

    If it were to the case that having 1,000,000 independent invention instances for each patent is statistically to be expected (assuming we could play Santa Claus and access every single laboratory and garage in the US in order to ascertain this), then our current laws are still such that one person (almost surely not the first person) will get a monopoly and everyone else (except maybe those who could prove they created the thing before the patent) will be hand-cuffed for up to 20 years.

    So, considering the potential harm to society if independent invention is anything but rare, the burden is on proving that no or almost no independent invention is possible. It's just too costly to be wrong and grant the patent.

    And a second major flaw, which speaks out against the monopoly grant itself:

    Can the patent owner prove that they were in a cave with only access to other patents for 20 years prior to the invention? If they can't, if they are influenced by anything created within the last 20 years that wasn't patented, then they are being a bit of a hypocrite. Worse, they are proving that they need society's help and then are accepting a monopoly that hand-cuffs the rest of society.

     

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    Jose_X, Aug 20th, 2011 @ 6:51am

    Re: Re: Independent invention

    >> Once multiple independent invention has occurred, then the patent should be invalid.

    Technically, to the extent that a re-invention is also made public like the patent.

     

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    Jose_X, Aug 20th, 2011 @ 7:03am

    So how do we fix the patent system, you ask?

    1 -- We need to increase the inventiveness bar by a fair amount (ref the earlier comments "ordinary" for a bit more discussion).

    2 -- We should provide fair use or otherwise exempt any invention that can be created from accessing any information whatsoever (including the patent itself) and commonly accessible relatively inexpensive items. I don't know what dollar value to pick here, but we can come up with something. This would kill most software patents and business method patents and jumping jacks or cartoon drawing or any other "process" patents that would interfere with ordinary people seeking out ordinary things. The patent is intended, if anything, to help even the playing field a little when we are talking about high capitalization endeavors where there are few capable of participating.

    I think to a fair degree when Hollywood glorifies inventors, most individuals watching awestruck assume both 1 and 2 above: that the inventor really did come up with something really hard to do and that the patent will not be used against small businesses and individuals. The last thing they probably imagine is that the invention was not that complex, and the next to last thing they might imagine is that the patent may very well be used to keep them from creating or using something at home that they can put together for themselves (and maybe add to their business offerings). If they, with ordinary income and tools, can create it and make money on it, then it wasn't something worthy of a patent.

     

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    Anonymous Coward, Aug 20th, 2011 @ 7:03am

    Re: So How Do We Fix The Patent System?

    "who will listen to someone like you when you constantly display this total lack of understanding.
    When people read you, they have to draw a conclusion regarding your motives."

    Stop that. If my eyes roll any harder at your obliviousness to your own self-referential irony I'm going to need a doctor.

     

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  43.  
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    Anonymous Coward, Aug 20th, 2011 @ 7:07am

    Re: Re: Re: So How Do We Fix The Patent System?

    So the patent system is not broken because anyone that says the system is broken doesn't understand how it works because they think it's broken when it's not broken? Bit circular don't you think?

     

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    Jose_X, Aug 20th, 2011 @ 7:15am

    Re: Re: Re: Re: Kay..

    >> IOW, the patent was worthless when it comes to actually helping solve the problem and the search was only done for the sake of avoiding infringement.

    We can dispel a related myth and see how much society is short-changed by this patent law thing.

    Myth: patents incentivize the revelation of trade secrets.

    Wrong. As a direct consequence of the very low inventiveness bar for getting a patent (non-obvious to a PHOSITA), every firm that had a worthwhile trade secret now has even more amo. They can keep the trade secret as locked up as it ever was, and then they further get a broad patent monopoly based on a description of the trade secret that is broad and so does not reveal the really special sauce.

    Patent law is a second serving at society's expense. Patent law doesn't require them to be narrow and precise and doesn't reward them for it either.

    They keep the secret sauce AND get monopoly over similar sauces that others would ordinary develop for themselves or reverse engineer.

    That is, they now can keep the trade secret and protect it with an added defense.

     

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    FuzzyDuck, Aug 20th, 2011 @ 7:25am

    Exclude Software

    Certain classes can be excluded or treated differently. Especially software should be excluded from patents, software is already protected by copyrights - which is protection enough. That solves the "independent invention" problem, as independent invention will not lead to copyright violation.

    DNA sequences found in nature should not be patentable or copyrightable. No-one invented them, but mother nature.

    If there is any place for patents, it should be limited to inventions with working models that have clearly had a significant cost to develop, not vague ideas.

     

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    Jose_X, Aug 20th, 2011 @ 7:36am

    Re: Re: Re: So How Do We Fix The Patent System?

    >> It is easy to think something is broken if you do not understand how it works.

    It is easy to think something works if you do not understand how it's broken.

    For example, for many centuries people thought they were being healthy by not showering too much and by not living in clean environments. They did not know about germs and actually did the opposite of things they should have done if they knew better.

    They thought nothing was broken with their hygienic practices.

    They thought nothing was wrong with their patent monopoly ways.

    Yet the nation kept suffering.

     

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    Jose_X, Aug 20th, 2011 @ 7:48am

    Re: Re: outside input

    The person was talking about those who don't want to give up trade secret but do want to help kill a patent.

     

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    Jose_X, Aug 20th, 2011 @ 7:57am

    Re: Re: Re:

    >> wait a couple of decades and you'll see.

    Yeah yeah, 20 years. The whole point is not to have to wait that long if we can do better for the US and its people today.

     

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    Jose_X, Aug 20th, 2011 @ 8:03am

    Re: Re:

    Some monopolies are worse than others.

    Some monopolies have much better possible solutions today than others.

    Eg, for the FTC, we need to implement a democratic system so that the case need be made to all citizens, the People, who would then vote (perhaps by proxy), rather than simply and entirely letting a handful of people make this very important decision potentially with little accountability to the majority of those affected and without the wisdom of the majority.

    For patents, especially for software and other cheap process patents, we clearly can and should do much better today.

     

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  50.  
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    Anonymous Coward, Aug 20th, 2011 @ 8:14am

    Re: It is horrible!

    You did pick up on an important point that is generally misstated. "Ordinary skill", is, of course, a mainstay of Section 103. Similarly, there are a host of other elements contained in 103. While collectively they may suggest to some that the standard is "low", in practice this is not the case. As relevant prior art is identified an applicant is typically put to the task of amending the then pending claims, which serves to narrow the scope of the claims. In many, many cases the narrowing of claims results in their being limited in scope to the point that one has to be almost brain dead to infringe in the first place. If they are unable to design around such a claim, then perhaps they should reconsider their chosen profession.

     

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  51.  
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    Bruce Ediger (profile), Aug 20th, 2011 @ 8:22am

    Re: Exclude Software

    Not that I really disagree with you, but...

    What about things "invented" using genetic algorithms? I've seem some youtube video by an MIT (?) professor showing how a genetic algrithm "invented" a circuit that seperated low frequency and high frequency sounds, patented in the 1930s.

    Genetic algorithms work in (we believe) exactly the same way mother nature does.

    Should something "invented" this way be patentable?

     

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  52.  
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    Jose_X, Aug 20th, 2011 @ 8:40am

    Re:

    >> Post grant reviews is the most obvious way you want to gut the system, by removing certainty.

    Uncertainty would hurt the patent business, not the software business.

    The software business works and better without patents. Any patents given should be few and far between and need to be kept in great check so as not to stifle the industry too much.

    >> anyone who wants to challenge those merits should be doing it through the legal system, not a watered down "grant review"

    Yet they are being *granted* through a less than "watered down" process today.

    >> What you would create is the ultimate problem of secrecy, because if another group finds out what you are working on, they can start work on it as well, and kill any chance for a patent.

    Listen to what you are saying.

    First, note how a business MUST reveal their secret if it ever hopes to make money. It's rather difficult to sell something in a market without revealing to the potential buyers what they are buying. Without patents, society will soon enough learn and do so without having had to hand-cuff competition (that may have also already been working on the same thing).

    Second, you are agreeing that many people can come up with things if they know of market demands, yet you prefer instead that one person get a monopoly and keep everyone else out, even long after the patent holder (or not) would have entered the market with first mover advantages and revealed that demand. How do consumers benefit? How does progress evolve smoothly with such drastic disruptions and impediments?

    Where you make a bit more sense is the case where some people identify demand and then would not follow up on it for many many years if ever. Mike and many others don't appear to be too sympathetic to this "problem". A main reason is that there are all sorts of ways you can do the job of being an idea person and leverage this skill to get a well-paying secure job or to market your own freelance business.

    >> safe to say that your proposals are designed to take away the true goals and meaning of patents

    A major goal of patents might very well be to make a few very wealthy to the detriment of the majority. Another goal might be to block competition for a long time.

    A naive observer might have thought patents were intended to promote the progress.

    >> to make them less secure, to make them less valuable

    Making broad monopolies less secure and less valuable is a victory for competition and freedom.

    >> to make them incredibly easy to defeat, disable, or derail

    ..because they almost surely should never have been granted 20 long years of monopoly stifling.

     

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  53.  
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    Anonymous Coward, Aug 20th, 2011 @ 8:57am

    Re: Re:

    You place far too much faith in what you seem to believe is untouchable research. Academics such as Pamela Samuelson, Mark Lemley spring to mind as examples of such researchers. I have studied their work, and that of many others, and generally find them wanting in numerous material respects, not the least of which is that their research glaringly overlooks the fact that there are many other parts of law that carry significant weight. 37 CFR, the administrative rules that carry the force and effect of law, as well as decisions made pursuant to the MPEP, are virtually never mentioned in their academic work, even though these additional resources implicate what is otherwise known as Administrative Law under Title 5 of the US Code. If these academics truly understood that which constitutes the body of patent law, then at the very least they would likewise be reflected in their research.

    Turning to the CAFC and its predecessor (the CCPA), I have made it a practice for over 30 years to review all of their decisions, which is now made easier by the fact that they are posted on a daily basis on the court's website. Befor I had to wait a week until I could review the USPQ advance sheets. Now I can review the court's decision virtually in real time.

    There is a significant difference between "stability" and "pro-patent". The two most certainly are not synomymous. If anyone suggests otherwise, I submit that the person is woefully uninformed and unfamiliar with practice before the court.

    For the sake of brevity I will stop here, even though there are many other issues raised in your article and your comments that could be addressed.

     

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    Jose_X, Aug 20th, 2011 @ 9:06am

    Re: Exclude Software

    >> it should be limited to inventions with working models that have clearly had a significant cost to develop

    Read in the most general way, this would give an excuse for firms to engage in a race to the bottom in inefficiency in order to create justification for a patent. That goes against competition, where if it took you $10 million but it took me $1 thousand, then I should be able to leverage that success.

    I do agree that if *there can exist* a manufacturing and overall process that is cheap and accessible to many (putting aside tangential business concerns and people time), then competition will exist naturally as some may very well adopt these approaches and find numerous ways to gain efficiencies.

    I see software as an example where the above is true, even though there obviously are very costly ways to go about the business as well.

    So a rule might be that *until* a cheap method is discovered (ie, as long as the only approaches are very expensive), a patent might play a role. [I prefer something weaker and more restricted than an outright broad monopoly for 20 years, if "patents" are even to be used. I don't like a monopoly solution, although I can live with handicaps of various sorts if properly designed. ..because I don't believe markets of the past or totally free markets lead to future balanced playing fields. The past winners tend to use their leverage to create new biased rules and circumstances.]

     

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    Jose_X, Aug 20th, 2011 @ 9:13am

    Re: Re: Exclude Software

    >> Genetic algorithms ... Should something "invented" this way be patentable?

    See the other comment I left below yours. The response is that, as technology advances to enable cheaply what previously could not be enabled cheaply, an affected patent that was previously acceptable would no longer be acceptable.

     

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    Khstapp, Aug 20th, 2011 @ 9:14am

    You left out the most obvious reform

    You must submit a working model of the invention.

    Most of these overly broad and dubious inventions would never pass muster if the filer actually had to submit a working model of the 'invention'. Many patents, especially software patents, would fail because the filer probably can't cobble together two lines of visual basic without getting a syntax error.

    Too many patents are granted for the idea for an invention rather than for the actual innovation. Ask the inventor to build it and most would likely gulp, slump their shoulders then walk away.

     

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    Jose_X, Aug 20th, 2011 @ 9:25am

    Re: Re: It is horrible!

    >> As relevant prior art is identified an applicant is typically put to the task of amending the then pending claims, which serves to narrow the scope of the claims.

    This doesn't make the low bar higher.

    This says that, as you engage the patent office and learn more of the prior art, the floor that applies goes up. You still only ever have to surpass the prior art by the very small amount that would qualify as an "ordinary" degree of non-obviousness.

    It's important to understand something. The prior art might be from patents. It may be very very difficult for a person not early to a field to carve out anything but a tiny piece risk free to themselves, but that is a very different thing than to say that only small pieces have been monopolized. SOMEONE will get there first and get a huge broad chunk. And collectively all of these chunks serve as a loaded minefield that makes the job of any independent software developer almost impossible to perform without infringement except for the most trivial of cases. Even great inventions can end up being but narrow cases of some broad idea written down many years earlier.

    >> If they are unable to design around such a claim, then perhaps they should reconsider their chosen profession.

    Now, you do have a point that against any specific patent you might be OK if we look randomly, but in practice (a) it is extremely expensive to get to the bottom of things (and might be impossible if you simply don't know of prior art that actually did exist) and (b) you don't face a random patent but can face an onslaught of patents, including some of those that are broader than average.

     

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    Peter Brett, Aug 20th, 2011 @ 9:42am

    Re: So How Do We Fix The Patent System?

    If I have to fix a big complex electronics system (like a radar or something) I have to KNOW HOW IT WORKS, and KNOW HOW TO OPERATE IT.




    Ah, a technician.



    Speaking as an electronic engineer with patents to my name, you clearly know even less about patents than you do about "the industry".



    But do please keep on with your ranting, it's very amusing and I need some light relief this Saturday evening.

     

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    Jose_X, Aug 20th, 2011 @ 9:43am

    Re: You left out the most obvious reform

    You only have to "build" enough of the software invention to meet the low inventiveness bar.

    A source code file would create a very very narrow patent if it did something useful. That is not the patent the patent applicant wants, generally.

    Alternatively, the source code file they'd want to include would be at a very high level (ie, a "main" program without including the body of all the interesting procedures), and today this is effectively communicated through the broad patent claims (which are what define officially the invention), with the implied reference to the rest of the patent (as this includes a more detailed discussion and samples which together help define the context of the language used in the claims).

     

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  60.  
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    Anonymous Coward, Aug 20th, 2011 @ 10:37am

    With respect to the independent invention defense, you're asking for court proof of a negative. "No, your honor, I swear I never saw any product/article/description/picture of anything based on the patentee's original invention that inspired me to create my product." How do you prove that? How do you disprove that? The minute a smartphone inventor releases a smartphone with a patented feature, is it reasonable to assume that any other smartphone developer has never seen it or examined it in detail?

    With respect to consulting people of ordinary skill, it's a fine idea, except it introduces a huge degree of subjectivity into the obviousness process that's not there now. You may not like the narrowness of the obviousness standard (for example, that the elements and a motivation to combine have to be previously published) but at least the examiner has something to point to.

    What are patentees going to do when the patent examiner rejects their patent because "I talked to this Bob guy and he said this was obvious. And he was really convincing. So, you know."

    Maybe these elements, or some variant of them, might improve the patent system. But you came up with them years ago, haven't developed them significantly since then, and have made little to no progress in coming up with a way to get them into the pipeline for real consideration. So other than as a purely intellectual exercise, what's the use?

     

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  61.  
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    Willton, Aug 20th, 2011 @ 11:03am

    Re: Re: Re: Kay..

    Is that why patent system around the world tend to grant repeatedly patents for the same thing?

    Can you offer an example of this? Because that is a complaint that (1) I've never heard, and (2) the law forbids and prevents in more than one way.

     

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  62.  
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    Richard (profile), Aug 20th, 2011 @ 11:10am

    Re: Re: Kay..

    yes your right, and the entire process of patent approval is to ensure that it has not allready been submitted by someone else before.

    Except that this doesn't work and never has.

    In 1912 the Wright brothers and Curtiss had a big legal argument over the Wright's wing warping/aileron patent. The argument (arguably) killed Wilbur Wright and halted US aircraft development in its tracks. As a result the US (where the aircraft had first been developed) had no serviceable aircraft in 1917 on entry to ww1.

    The joke is that the patent should never gave been granted in the first place - as the idea had been patented in England 40 years earlier!

    It is just impossible for anyone inventor/innovator or patent examiner to be aware of all the prior art - even that part which has already been patented (there being well over 10 million patents worldwide).

     

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  63.  
    identicon
    Anonymous Coward, Aug 20th, 2011 @ 11:19am

    Scrap the entire system.

    Simple. Scrap the entire system. If people want new stuff they will invent it. The system might have encouraged innovation at one time, but it is just mucking up the wheels of progress, today.

     

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  64.  
    identicon
    Willton, Aug 20th, 2011 @ 11:21am

    Re: Re: Independent invention

    and please provide evidence that the patent was looked at before the infringing product was released, especially given the fact that most patents never make it to product, at least not during the patent period, not by the entity who has the patent.

    Likewise, [citation needed]. If you are going to call for evidence, you should practice what you preach.

     

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  65.  
    icon
    Richard (profile), Aug 20th, 2011 @ 11:33am

    Re: Re: Independent invention

    Patents should only exist to the extent that they promote the progress, nothing more.

    That would be not at all then!

     

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  66.  
    identicon
    Willton, Aug 20th, 2011 @ 11:33am

    Re: Re: Independent invention

    Why does there need to be a timeline? Once multiple independent invention has occurred, then the patent should be invalid.

    Because once a certain amount of time after a patent's filing date has elapsed, the claim that a particular apparatus or method was "independently invented" begins to lack merit. The idea that you could "independently invent" an apparatus or method 5 years after I filed a patent application disclosing the same invention is pretty unbelievable. There should be a time table for such claims in order to prevent defendants from wasting judicial resources on scurrilous defenses.

     

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  67.  
    identicon
    Willton, Aug 20th, 2011 @ 11:35am

    Re:

    I have a better idea.

    Fire any patent examiner that approves any patent that is ever overturned, and invalidate all patents that they have ever approved. For patent examiners that have retired or quit, retroactively invalidate all patents they've worked on, and retroactively reverse their pay.

    That'll fix things in a big damn hurry.


    Scorched earth solutions like the one above create more problems than they solve.

     

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  68.  
    identicon
    Willton, Aug 20th, 2011 @ 11:42am

    Re: Re:

    Uncertainty would hurt the patent business, not the software business.

    The software business works and better without patents. Any patents given should be few and far between and need to be kept in great check so as not to stifle the industry too much.


    You, sir, have tunnel vision. The patent system affects more industries than just software business. If I work in consumer products, manufacturing, medical devices, pharmaceuticals, biotechnology, transportation or energy, why would I give a damn about what the software business wants?

     

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  69.  
    icon
    Richard (profile), Aug 20th, 2011 @ 11:46am

    Re: Re:

    First, note how a business MUST reveal their secret if it ever hopes to make money. It's rather difficult to sell something in a market without revealing to the potential buyers what they are buying.

    Actually in many cases businesses don't reveal how things are made. Two examples come to mind instantly.

    1) Technoweld. They tell you what's in it - but how to make it has been kept secret and never patented.

    2) Current Rolls Royce compressor blade fabrication technique.

    Conclusion - even with patents companies prefer to keep things secret if they can - so patents don't cause information to be spread.

     

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  70.  
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    Frost (profile), Aug 20th, 2011 @ 12:20pm

    Wrong question, again, I fear.

    We don't fix patents - we fix society, by abolishing money completely and shifting to a cooperation basis instead of a competition one.

    Patents, while a major problem in their own right, are just a minor symptom of the money-based society and what's wrong with it. We have far bigger issues that also get solved if we abandon the medieval concepts of "money" and "trade" and retire this modern-day feudalism we're suffering under now.

     

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  71.  
    identicon
    bshock, Aug 20th, 2011 @ 12:24pm

    Re: So How Do We Fix The Patent System?

    darryl, for all I know, you may be an expert on the patent system as well as a certified genius.

    But posts like yours make me wish that TechDirt comments had four buttons instead of just three: "insightful," "funny," "report," and "obvious troll."

     

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  72.  
    icon
    Richard (profile), Aug 20th, 2011 @ 12:52pm

    Re: Re: Kay..

    It is a fundamental concept that IGNORANCE is no defence in LAW.

    Wrong.

    The true statement you mis-remembered was:

    "It is a fundamental concept that IGNORANCE OF THE LAW is no defence in LAW."

    See the difference?

    and by the way YOU have no defence!

     

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  73.  
    identicon
    Anonymous Coward, Aug 20th, 2011 @ 1:18pm

    Re: Re: Re: Re: Kay..

    And yet here we are with people telling it differently.

    At the same time Crawford's patent was being prosecuted, more than 5,000 other patents were issued for "the same thing," Martin says.


    http://www.npr.org/blogs/money/2011/07/26/138576167/when-patents-attack

    a) You never bother to look.
    b) Reality apparently can't comply fully with the law.

    So we do have a problem.

     

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  74.  
    identicon
    Anonymous Coward, Aug 20th, 2011 @ 1:23pm

    Re:

    Independent Invention: One could prove that showing documents documenting the person or entity attempts to produce something.

    Even patents fillings could prove that someone was trying to do something.

    Consulting people of ordinary skill: Crowdsource the problem, put up a forum where people can submit solutions to problems and if more than one person comes up with the same solution it is not innovative is it? Every patent is something designed to solve a problem, put that problem out for others to solve, many people interested will come forward.

     

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  75.  
    identicon
    Anonymous Coward, Aug 20th, 2011 @ 1:27pm

    Re: Re: Re: Independent invention

    That is easy LoL

    99.9% fail - 1 out of 5000 inventions have successful product launches. “[E]xperts estimate that 1 out of 5,000 inventions have gone on to successful product launches." Invention success rate. Percent of inventions that fail. (Williams-Harold, Bevolyn, “You've got it made! (developing invention ideas),” Black Enterprise, June 1, 1999)

    99.9% fail. Only 2 products are launched out of every 3,000 ideas. “Out of 3,000 ideas, for instance, only about two products are ever actually launched — and only one of those succeeds, says Greg Stevens, president of WinOvations, a new product research and consulting firm in Midland, Mich.” What percent of inventions become commercially successful? (Jeannie Mandelker, Reporter Associate: Anne Ashby Gilbert, Marketing, Your Company, pp. 54+, October 1, 1997)

    99.8% fail. Only 3,000 patents out of 1.5 million patents are commercially viable. “In truth, odds are stacked astronomically against inventors, and no marketing outfit can change them. ‘There are around 1.5 million patents in effect and in force in this country, and of those, maybe 3,000 are commercially viable,’ [Richard Maulsby, director of the Office of Public Affairs for the U.S. Patent & Trademark Office], says. ‘It's a very small percentage of patents that actually turn into products that make money for people. On top of all that, to get ripped off for tens of thousands of dollars adds insult to injury.” What percent of patents make money? How many patents become products? Percent of patents commercialized. Percent of patents that get approved. (Richard Maulsby, director of public affairs for the U.S. Patent & Trademark Office, quoted in Karen E. Klein, Smart Answers, “Avoiding the Inventor's Lament,” Business Week, November 10, 2005)

    http://www.inventionstatistics.com/Innovation_Risk_Taking_Inventors.html

     

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  76.  
    identicon
    Anonymous Coward, Aug 20th, 2011 @ 1:28pm

    Re: Re: Re: Independent invention

    Now it is your turn where is the citation damn it!

    :)

     

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  77.  
    identicon
    Anonymous Coward, Aug 20th, 2011 @ 1:46pm

    Re: Re: Re: Independent invention

    ????

    Did civilizations not developed writing in different periods independently?

    Did civilizations did not developed math independently in different epochs? Archimedes is the first mathematical to have come up with calculus well before Leibniz and Newton.

    Not to mention, movable types, garments, fire, Antikythera mechanism, Da Vince discovery and description of atherosclerosis, metal forging(the Chinese had iron before Europeans), boats, measures and so forth all discovered and rediscovered independently by different societies at different periods of time and you are saying it takes credence from them?

    Rubbish, it is just difficult to prove that somebody came up with something independently if everybody can see it, but if it is something obscured that nobody heard about it then it is not that difficult.

    Recently a student came up with an idea to make HOG

    This idea has actually been around for decades: a concept illustration of a car with a HOG drive graced the cover of the 1938 edition of Mechanics and Handicraft Magazine. Nothing much has really been done with it since, but Curtis (who actually re-invented the system from scratch) is hoping to create a cheap, powerful, and agile omnidirectional drive system that can be adapted for use by both researchers and hobbyists. We hope he'll build a car-sized version too.

    http://spectrum.ieee.org/automaton/robotics/diy/youve-never-seen-a-drive-system-like-this-befo re

    The student apparently rediscovered the tech, build a prototype and found out later it had already been invented by somebody else in 1938.

     

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  78.  
    identicon
    Anonymous Coward, Aug 20th, 2011 @ 1:48pm

    Re: Re:

    That is exactly why the patent system is already in trouble, because it takes the scorched earth approach by not letting others make use of anything.

     

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  79.  
    identicon
    Anonymous Coward, Aug 20th, 2011 @ 1:49pm

    Re: Re: Re:

    And yet according to studies, until the 80's nobody cared about patents that much only after the mid 90's there was this gold rush to get more and more, before they were not that important why?

     

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  80.  
    identicon
    Anonymous Coward, Aug 20th, 2011 @ 1:56pm

    Re: Re: Re:

    http://www.patentlyo.com/patent/2004/08/patent_explosio.html
    http://blogs.wsj.com/law/2007/01/09/am id-a-patent-explosion-the-pto-celebrates-trademarks/
    http://citeseerx.ist.psu.edu/viewdoc/summary?d oi=10.1.1.72.4162
    http://ideas.repec.org/p/cbr/cbrwps/wp291.html

    If you need citations there are dozens of resources online just type "patent explosion".

    Most interestingly though is that I read there that the patent explosion is occuring in a very narrow segment of the industries, which begs the question why are the others not interested in patents?

    Can it be because they don't need them.
    That would be heresy wouldn't?

     

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  81.  
    identicon
    Anonymous Coward, Aug 20th, 2011 @ 1:58pm

    Two ways to "fix it"

    1) Patent tax. Holders of patents are required to pay an annual amount calculated according to the estimated value of the patent. The holder may determine the value of the patent, but may not subsequently change the determined value without filing adequate justification with the patent office and attracking proportionate taxation.

    2) Change company law. According to law, all companies must submit annual accounts. The balance sheet shows assets, equity and liabilities. IP (Copyright/Patents/etc.) is shown as an "intangible asset"- or in other words, an asset that cannot be physically touched. Pass a law which makes it illegal for any company's intangible assets to exceed a defined fraction of total assets. Since a patent troll's assets are just about all intangible, such a law would destroy them overnight.

    Actually, a combination of the above two approaches would simultaneously break patent trolls, and devalue everyone else's patent portfolios within an incredibly short time.

    For that matter, we may see big record labels putting copyright and royalties back into the hands of the authors and artists, where they belong, as they too, like patent trolls, make a parasitical living off the IP of others.

     

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  82.  
    identicon
    Anonymous Coward, Aug 20th, 2011 @ 2:13pm

    Re: Re:

    Before anybody says crowdsourcing is not good enough.

    How DARPA Plans to Reinvent U.S. Manufacturing

    DoD research wing wants to make everything from tanks to bombers in "fabs."
    http://www.technologyreview.com/blog/mimssbits/25672/

    You see manufacturing is important for America on a security level so the even the military wants manufacturing capabilities back and to do that they will use crowdsource design and manufacturing where iFab is just part of the project.

    Which may actually bring back jobs for Americans.
    Of course the super-secret stuff will be all secret, but the day to day operations stuff, that can be all crowdsourced.

    Now if the Army can use people to help them in their objectives why can't the USPTO?

     

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  83.  
    identicon
    Anonymous Coward, Aug 20th, 2011 @ 2:20pm

    How to fix the patent system?

    I don't know how, what I do know is that it is great to see people trying to discuss solutions instead of just complaining about things.

    No matter how crazy the ideas are, is great to finally see some suggestions, those can evolve into something else, where people can have a clear picture of what they want.

    We must start voting for laws not for politicians and to get those laws we must find a way to create them inside society to put them to a vote or elect people who would vote for those things.

     

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  84.  
    identicon
    Anonymous Coward, Aug 20th, 2011 @ 2:23pm

    Re: How to fix the patent system?

    Now, my question is, it is even possible to "fix" the patent system?

    What would happen if the patent system didn't exist?
    Would it be that bad?

    In a world where crowdsource is a reality do we need patents?

     

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  85.  
    identicon
    Anonymous Coward, Aug 20th, 2011 @ 2:55pm

    Could we datamine the USPTO and get some statistics, along with the legal system to see what is happening?

    People should produce more reports like these ones LoL
    http://www.m-cam.com/patently-obvious-reports

     

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  86.  
    identicon
    Anonymous Coward, Aug 20th, 2011 @ 3:03pm

    Darryl do you have a patent I want to check it out for ya!

     

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  87.  
    identicon
    Anonymous Coward, Aug 20th, 2011 @ 3:16pm

    Re: Re: Re: Re: Kay..

    Where is Chris Crawford?

     

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  88.  
    identicon
    Anonymous Coward, Aug 20th, 2011 @ 3:19pm

    How to make a patent last forever using continuations

    Appendix A
    Excerpt of Monsanto and Mendel Biotechnology’s U.S. Pat No. 7,960,612

    RELATIONSHIP TO COPENDING APPLICATIONS
    This application claims the benefit of Application No. 60/961,403, filed Jul. 20, 2007. This application is a continuation‐in‐part of
    application Ser. No. 10/286,264, filed Nov. 1, 2002 (pending), which is a divisional of application Ser. No. 09/533,030, filed Mar. 22,
    2000 (abandoned), which claims the benefit of Application No. 60/125,814, filed Mar. 23, 1999. This application is a continuation‐in‐
    part of application Ser. No. 10/675,852, filed Sep. 30, 2003 (pending). This application is a continuation‐in‐part of application Ser.
    No. 11/479,226, filed Jun. 30, 2006 (pending), which is a continuation‐in‐part of application Ser. No. 09/713,994, filed Nov. 16, 2000
    (abandoned), which claims the benefit of Application No. 60/166,228, filed Nov. 17, 1999, which also claims the benefit of
    Application No. 60/197,899, filed Apr. 17, 2000, which also claims the benefit of Application No. 60/227,439, filed Aug. 22, 2000. This
    application is a continuation‐in‐part of application Ser. No. 10/669,824, filed Sep. 23, 2003, which is a continuation‐in‐part of,
    09/823,676, filed Mar. 30, 2001 (issued as U.S. Pat. No. 6,717,034). This application is a continuation‐in‐part of application Ser. No.
    11/725,235, filed Mar. 16, 2007, which is a divisional of application Ser. No. 10/225,068, filed Aug. 9, 2002 (issued as U.S. Pat. No.
    7,193,129), which claims the benefit of Application No. 60/310,847, filed Aug. 9, 2001, and also claims the benefit of Application No.
    60/336,049, filed Nov. 19, 2001, and also claims the benefit of Application No. 60/338,692, filed Dec. 11, 2001; application Ser. No.
    10/225,068 is also a continuation‐in‐part of application Ser. No. 09/837,944, filed Apr. 18, 2001 (abandoned), and is also a
    continuation‐in‐part of application Ser. No. 10/171,468, filed Jun. 14, 2002 (abandoned). This application is a continuation‐in‐part of
    application Ser. No. 11/728,567, filed Mar. 26, 2007, which is a divisional of application Ser. No. 10/225,066, filed Aug. 9, 2002
    (issued as U.S. Pat. No. 7,238,860), which claims the benefit of Application No. 60/310,847, filed Aug. 9, 2001, and also claims the
    benefit of Application No. 60/336,049, filed Nov. 19, 2001, and also claims the benefit of Application No. 60/338,692, filed Dec. 11,
    2001. Application Ser. No. 10/225,066 is also a continuation‐in‐part of application Ser. No. 09/837,944, filed Apr. 18, 2001
    (abandoned), and is a continuation‐in‐part of application Ser. No. 10/171,468, filed Jun. 14, 2002 (abandoned). This application is a
    continuation‐in‐part of application Ser. No. 11/375,241, filed Mar. 16, 2006 (pending), which claims the benefit of Application No.
    60/713,952, filed Aug. 31, 2005. Application Ser. No. 11/375,241 is also a continuation‐in‐part of application Ser. No. 10/225,067,
    filed Aug. 9, 2002 (issued as U.S. Pat. No. 7,135,616), which claims the benefit of Application No. 60/310,847, filed Aug. 9, 2001,
    which also claims the benefit of Application No. 60/336,049, filed Nov. 19, 2001, and also claims the benefit of Application No.
    60/338,692, filed Dec. 11, 2001. Application Ser. No. 10/225,067 is also a continuation‐in‐part of application Ser. No. 09/837,944,
    filed Apr. 18, 2001 (abandoned), and is also a continuation‐in‐part of application Ser. No. 10/171,468, filed Jun. 14, 2002
    (abandoned). This application is a continuation‐in‐part of application Ser. No. 11/069,255, filed Feb. 28, 2005 (pending), which is a
    continuation‐in‐part of application Ser. No. 10/112,887, filed Mar. 18, 2002 (abandoned). This application is a continuation‐in‐part of
    application Ser. No. 10/374,780, filed Feb. 25, 2003 (pending), which is a continuation‐in‐part of Application No. 09/934,455, filed
    Aug. 22, 2001 (abandoned), which is a continuation‐in‐part of application Ser. Nos. 09/713,994, Nov. 16, 2000 (abandoned), which is
    also a continuation‐in‐part of application Ser. No. 09/837,944, filed Apr. 18, 2001 (abandoned), which also claims priority to
    Application No. 60/227,439, filed Aug. 22, 2000. Application Ser. No. 10/374,780 is also a continuation‐in‐part of application Ser. No.
    10/225,068, filed Aug. 9, 2002 (issued as U.S. Pat. No. 7,193,129), which claims the benefit of Application No. 60/310,847, filed Aug.
    9, 2001, and also claims the benefit of Application No. 60/336,049, filed Nov. 19, 2001, and also claims the benefit of Application No.
    60/338,692, filed Dec. 11, 2001. Application Ser. No. 10/225,068 is also a continuation‐in‐part of application Ser. No. 09/837,944,
    filed Apr. 18, 2001 (abandoned), and is also a continuation‐in‐part of application Ser. No. 10/171,468, filed Jun. 14, 2002
    (abandoned). Application Ser. No. 10/374,780 is also a continuation‐in‐part of application Ser. No. 10/225,066, filed Aug. 9, 2002
    (issued as U.S. Pat. No. 7,238,860), which claims the benefit of Application No. 60/310,847, filed Aug. 9, 2001, which also claims the
    benefit of Application No. 60/336,049, filed Nov. 19, 2001, which also claims the benefit of Application No. 60/338,692, filed Dec. 11,
    2001; application Ser. No. 10/225,066 is also a continuation‐in‐part of application Ser. No. 09/837,944, filed Apr. 18, 2001
    (abandoned), and is also a continuation‐in‐part of application Ser. No. 10/171,468, filed Jun. 14, 2002 (abandoned). Application Ser.
    No. 10/374,780 is also a continuation‐in‐part of application Ser. No. 10/225,067, filed Aug. 9, 2002 (issued as U.S. Pat. No.
    7,135,616), which claims the benefit of Application No. 60/310,847, filed Aug. 9, 2001, and also claims the benefit of Application No.
    60/336,049, filed Nov. 19, 2001, and also claims the benefit of Application No. 60/338,692, filed Dec. 11, 2001; application Ser. No.
    10/225,067 is also a continuation‐in‐part of application Ser. No. 09/837,944, filed Apr. 18, 2001 (abandoned), and is also a
    continuation‐in‐part of application Ser. No. 10/171,468, filed Jun. 14, 2002 (abandoned). This application is a continuation‐in‐part of
    application Ser. No. 10/546,266, filed Aug. 19, 2005 (pending), which is a '371 National Stage filing of International Application No.
    PCT/US2004005654, filed Feb. 25, 2004 (converted), which is a continuation‐in‐part of application Ser. No. 10/374,780, filed Feb. 25,
    2003 (pending), and is also a continuation‐in‐part of application Ser. No. 10/675,852, filed Sep. 30, 2003 (pending). This application is
    also a continuation‐in‐part of application Ser. No. 11/986,992, filed Nov. 26, 2007, which is a division of application Ser. No.
    10/412,699, filed Apr. 10, 2003 (issued as U.S. Pat. No. 7,345,217), which is a continuation‐in‐part of application Ser. No. 10/295,403,
    filed Nov. 15, 2002 (abandoned), which is a divisional of application Ser. No. 09/394,519, filed Sep. 13, 1999 (abandoned), which

    claims the benefit of Application No. 60/101,349, filed Sep. 22, 1998, which also claims the benefit of Application No. 60/103,312,
    filed Oct. 6, 1998, which also claims the benefit of Application No. 60/108,734, filed Nov. 17, 1998, which also claims the benefit of
    Application No. 60/113,409, filed Dec. 22, 1998. Application Ser. No. 10/412,699 is also a continuation‐in‐part of application Ser. No.
    09/489,376, filed Jan. 21, 2000 (abandoned), which claimed priority to Application No. 60/116,841, filed Jan. 22, 1999. Application
    Ser. No. 10/412,699 is also a continuation‐in‐part of application Ser. No. 10/302,267, filed Nov. 22, 2002 (issued as U.S. Pat. No.
    7,223,904), which is a divisional of application Ser. No. 09/506,720, filed Feb. 17, 2000 (abandoned), which claims the benefit of
    Application No. 60/120,880, filed Feb. 18, 1999, which also claims the benefit of Application No. 60/121,037, filed Feb. 22, 1999,
    which also claims the benefit of Application No. 60/124,278, filed Mar. 11, 1999, which also claims the benefit of Application No.
    60/129,450, filed Apr. 15, 1999, which also claims the benefit of Application No. 60/135,134, filed May 20, 1999, which also claims
    the benefit of Application No. 60/144,153, filed Jul. 15, 1999, which also claims the benefit of Application No. 60/161,143, filed Oct.
    22, 1999, which also claims the benefit of Application No. 60/162,656, filed Nov. 1, 1999. Application Ser. No. 10/412,699 is also a
    continuation‐in‐part of application Ser. No. 10/278,173, filed Oct. 21, 2002 (abandoned), which is a divisional of application Ser. No.
    09/533,392, filed Mar. 22, 2000 (abandoned), which claims the benefit of Application No. 60/125,814, filed Mar. 23, 1999.
    Application Ser. No. 10/412,699 is also a continuation‐in‐part of application Ser. No. 09/533,029, filed Mar. 22, 2000 (issued as U.S.
    Pat. No. 6,664,446), which claims the benefit of Application No. 60/125,814, filed Mar. 23, 1999. Application Ser. No. 10/412,699 is
    also a continuation‐in‐part of application Ser. No. 10/278,536, filed Oct. 22, 2002 (abandoned), which is a divisional of application
    Ser. No. 09/532,591, filed Mar. 22, 2000 (abandoned), which claims priority to Application No. 60/125,814, filed Mar. 23, 1999.
    Application Ser. No. 10/412,699 is also a continuation‐in‐part of application Ser. No. 09/713,994, filed Nov. 16, 2000 (abandoned),
    which claims the benefit of Application No. 60/166,228, filed Nov. 17, 1999, which also claims the benefit of Application No.
    60/197,899, filed Apr. 17, 2000, which also claims the benefit of Application No. 60/227,439, filed Aug. 22, 2000. Application Ser. No.
    10/412,699 is also a continuation‐in‐part of application Ser. No. 09/819,142, filed Mar. 27, 2001. Application Ser. No. 10/412,699 is
    also a continuation‐in‐part of application Ser. No. 09/934,455, filed Aug. 22, 2001 (abandoned), which is a continuation‐in‐part of
    application Ser. No. 09/713,994, filed Nov. 16, 2000 (abandoned), which is also a continuation‐in‐part of application Ser. No.
    09/837,944, filed Apr. 18, 2001 (abandoned), which also claim the benefit of Application No. 60/227,439, filed Aug. 22, 2000.
    Application Ser. No. 10/412,699 is also a continuation‐in‐part of application Ser. No. 10/225,068, filed Aug. 9, 2002 (issued as U.S.
    Pat. No. 7,193,129), which claims the benefit of Application No. 60/310,847, filed Aug. 9, 2001, which also claims the benefit of
    Application No. 60/336,049, filed Nov. 19, 2001, which also claims the benefit of Application No. 60/338,692, filed Dec. 11, 2001;
    and, application Ser. No. 10/225,068 is also a continuation‐in‐part of application Ser. No. 09/837,944, filed Apr. 18, 2001
    (abandoned), and is also a continuation‐in‐part of application Ser. No. 10/171,468, filed Jun. 14, 2002 (abandoned). Application Ser.
    No. 10/412,699 is also a continuation‐in‐part of application Ser. No. 10/225,066, filed Aug. 9, 2002 (issued as U.S. Pat. No.
    7,238,860), which claims the benefit of Application No. 60/310,847, filed Aug. 9, 2001, which also claims the benefit of Application
    No. 60/336,049, filed Nov. 19, 2001, which also claims the benefit of Application No. 60/338,692, filed Dec. 11, 2001; and,
    application Ser. No. 10/225,066 is also a continuation‐in‐part of application Ser. No. 09/837,944, filed Apr. 18, 2001 (abandoned),
    and is also a continuation‐in‐part of application Ser. No. 10/171,468, filed Jun. 14, 2002 (abandoned). Application Ser. No.
    10/412,699 is also a continuation‐in‐part of application Ser. No. 10/225,067, filed Aug. 9, 2002 (issued as U.S. Pat. No. 7,135,616),
    which claims the benefit of Application No. 60/310,847, filed Aug. 9, 2001, which also claims the benefit of Application No.
    60/336,049, filed Nov. 19, 2001, which also claims the benefit of Application No. 60/338,692, filed Dec. 11, 2001; and, application
    Ser. No. 10/225,067 is also a continuation‐in‐part of application Ser. No. 09/837,944, filed Apr. 18, 2001 (abandoned), and is also a
    continuation‐in‐part of application Ser. No. 10/171,468, filed Jun. 14, 2002 (abandoned). Application Ser. No. 10/412,699 is also a
    continuation‐in‐part of application Ser. No. 10/374,780, filed Feb. 25, 2003 (pending). This application is a continuation‐in‐part of
    application Ser. No. 10/559,441, filed Dec. 2, 2005 (pending), which is a '371 National Stage filing of International Application No.
    PCT/US2004/017768, filed Jun. 4, 2004 (converted), which is a continuation‐in‐part of application Ser. No. 10/456,882, filed Jun. 6,
    2003 (abandoned). This application is a continuation‐in‐part of application Ser. No. 11/642,814, filed Dec. 20, 2006, which is a
    divisional of application Ser. No. 10/666,642, filed Sep. 18, 2003 (issued as U.S. Pat. No. 7,196,245), which claims the benefit of
    Application No. 60/411,837, filed Sep. 18, 2002, and also claims the benefit of Application No. 60/434,166, filed Dec. 17, 2002, and
    also claims the benefit of Application No. 60/465,809, filed Apr. 24, 2003. This application is a continuation‐in‐part of application Ser.
    No. 10/714,887, filed Nov. 13, 2003 (pending), which is a continuation‐in‐part of application Ser. No. 10/456,882, filed Jun. 6, 2003
    (abandoned); and application Ser. No. 10/714,887 is also a continuation‐in‐part of application Ser. No. 10/666,642, filed Sep. 18,
    2003 (issued as U.S. Pat. No. 7,196,245), which claims the benefit of Application No. 60/411,837, filed Sep. 18, 2002, which also
    claims the benefit of Application No. 60/434,166, filed Dec. 17, 2002, which also claims the benefit of Application No. 60/465,809,
    filed Apr. 24, 2003. This application is a continuation‐in‐part of application Ser. No. 11/435,388, filed May 15, 2006 (pending), which
    is a continuation‐in‐part of International Application No. PCT/US04/37584, filed Nov. 12, 2004 (converted), which is a continuation‐
    in‐part of application Ser. No. 10/714,887, filed Nov. 13, 2003, and also claims the benefit of Application No. 60/527,658, filed Dec.
    5, 2003, and also claims the benefit of Application No. 60/542,928, filed Feb. 5, 2004. This application is a continuation‐in‐part of
    application Ser. No. 11/632,390, filed Jan. 11, 2007, which is a '371 National Stage filing of International Application No.
    PCT/US2005/025010, filed Jul. 14, 2005 (converted), which claims the benefit of Application No. 60/588,405, filed Jul. 14, 2004. This
    application is a continuation‐in‐part of application Ser. No. 12/064,961, filed Feb. 26, 2008 (pending), which is a continuation‐in‐part

    of PCT application PCT/US06/34615, filed Aug. 31, 2006 (expired), which claims the benefit of Application No. 60/713,952, filed Aug.
    31, 2005 (pending). This application is a continuation‐in‐part of International Application no. PCT/US2006/34615, filed Aug. 31, 2006,
    which claims the benefit of Application No. 60/713,952, filed Aug. 31, 2005. This application is a continuation‐in‐part of application
    Ser. No. 10/903,236, filed Jul. 30, 2004 (pending), which is a continuation‐in‐part of application Ser. No. 10/456,882, filed Jun. 6,
    2003 (abandoned), and is also a continuation‐in‐part of application Ser. No. 10/666,642, filed Sep. 18, 2003 (issued as U.S. Pat. No.
    7,196,245), which claims the benefit of Application No. 60/411,837, filed Sep. 18, 2002, and also claims the benefit of Application
    No. 60/465,809, filed Apr. 24, 2003. This application is a continuation‐in‐part of application Ser. No. 11/699,973, filed Jan. 29, 2007,
    which is a continuation‐in‐part of International Application No. PCT/US2005‐027151, filed Jul. 29, 2005 (converted), which is a
    continuation‐in‐part of application Ser. No. 10/903,236, filed Jul. 30, 2004 (pending). This application is a continuation‐in‐part of
    application Ser. No. 10/870,198, filed Jun. 16, 2004 (pending), which claims the benefit of Application No. 60/565,948, filed Apr. 26,
    2004, which also claims the benefit of Application No. 60/527,658, filed Dec. 5, 2003, which also claims the benefit of Application
    No. 60/542,928, filed Feb. 5, 2005; and, Application No. 10/870,198 is also a continuation‐in‐part of application Ser. No. 10/669,824,
    filed Sep. 23, 2003 (pending), which is a continuation‐in‐part of application Ser. No. 09/823,676, filed Mar. 30, 2001 (issued as U.S.
    Pat. No. 6,717,034). This application is a continuation‐in‐part of application Ser. No. 10/838,616, filed May 4, 2004 (pending), which
    claims the benefit of Application No. 60/565,948, filed Apr. 26, 2004, and is a continuation‐in‐part of application Ser. No.
    10/685,922, filed Oct. 14, 2003 (abandoned). This application is a continuation‐in‐part of International Application No.
    PCT/US2007/17321, filed Aug. 7, 2006 (pending), which claims the benefit of Application No. 60/836,243, filed Aug. 7, 2006. This
    application is a continuation‐in‐part of application Ser. No. 11/705,903, filed Feb. 12, 2007 (pending), which is a continuation‐in‐part
    of International Application No. PCT/US2006/34615, filed Aug. 31, 2006 (converted), which claims the benefit of Application No.
    60/713,952, filed Aug. 31, 2005. This application is a continuation‐in‐part of application Ser. No. 11/821,448, filed Jun. 22, 2007
    (pending), which claims priority to Application No. 60/817,886, filed Jun. 29, 2006. This application is a continuation‐in‐part of
    application Ser. No. 11/981,667, filed Oct. 31, 2007 (pending). This application is also a continuation‐in‐part of application Ser. No.
    11/981,576 filed Oct. 31, 2007 (pending). This application is a continuation‐in‐part of International Application No.
    PCT/US2007/09124, filed Apr. 12, 2007 (pending), which claims priority to Application No. 60/791,663, filed Apr. 12, 2006.

     

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  89.  
    identicon
    JEDIDIAH, Aug 20th, 2011 @ 3:33pm

    Re: Re: Exclude Software

    Nothing invented by a mechanical process or algorithm should be patentable at all. The "invention generator" might be an interesting thing that deserves a patent, but the output isn't. It's like giving Microsoft ownership of any word document made anywhere.

     

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  90.  
    identicon
    JEDIDIAH, Aug 20th, 2011 @ 3:35pm

    Re: Re:

    Something I've suggested before is to test inventiveness by simply giving a description of the invention to a group of university students or recent graduates and see if they can recreate the invention.

    Tivo's patents fit this idea quite nicely.

     

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  91.  
    identicon
    Anonymous Coward, Aug 20th, 2011 @ 3:43pm

    Re: Re: How to fix the patent system?

    When do we need patents?
    How they used?
    For what they are used?

     

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  92.  
    icon
    jon (profile), Aug 20th, 2011 @ 5:40pm

    Camming in the 1920's and how they tried to stop it...

    Despite many crackdowns over the years, camcorder piracy is still alive and bringing the latest blockbusters to the masses. What is perhaps less well-known is that this is not a new phenomenon. There are documented instances of camming dating back to just after World War I. Cammers in 1920 were as cunning as their modern-day counterparts and had to contend with surprisingly sophisticated anti-piracy measures.

     

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  93.  
    identicon
    Anonymous Coward, Aug 20th, 2011 @ 6:03pm

    Re: Re: Re: outside input

    Sure, but the point is that the patent system is not otherwise encouraging that person to 'reveal' their 'secrets'.

     

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  94.  
    identicon
    Anonymous Coward, Aug 20th, 2011 @ 6:12pm

    Re: Re:

    "Scorched earth solutions like the one above create more problems than they solve."

    Patents create more problems then they solve, especially since they don't solve anything.

     

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  95.  
    identicon
    Anonymous Coward, Aug 20th, 2011 @ 6:12pm

    Re: Re: Re:

    Than *

     

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  96.  
    identicon
    Jeremy Collake, Aug 20th, 2011 @ 6:32pm

    Can't fix the patent system until you fix DC

    Until the $$$$ are removed from our national politics in the USA, reforming the patent system, or anything else, seems near impossible. As long as money has the most influence, it will always fight to keep the status quo, when that status quo is beneficial to it.

    Doing practical, logical, fair things like patent reform would require politicians act pragmatically in the best interests of society at large.. instead of in their own best interests in getting re-elected. Oh, it would also require them to understand the issues, and I fear few do. After all, voters (most of them) don't exactly vote for a person based on their understandings of the issues. They vote for whoever spouts off whatever ideological view matches their own pre-conceived notions, or more often for simple likability reasons.

    Patents aren't the only thing that needs an overhaul. It should be obvious to *anyone* that our health care system needed an overhaul. Look what happened when Hillary tried when Clinton was president. It died. The most recent reform got so watered down by the time it was out of congress, it is only a band-aid -- all-be-it a highly needed one.

    I have given up on expecting Washington, D.C. to do anything in in the interests of the *people*. Well, at least anyone besides the most wealthy. Throw in Faux News and other biased 'news' outlets.. and well... what a mess.

     

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  97.  
    identicon
    Anonymous Coward, Aug 20th, 2011 @ 6:43pm

    "So How Do We Fix The Patent System?"

    So, how do we 'fix' theft? We abolish it!!!!

    Patents are a form of theft. They deprive me of my rights in return for nothing.

     

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  98.  
    identicon
    Anonymous Coward, Aug 20th, 2011 @ 7:03pm

    Re: Camming in the 1920's and how they tried to stop it...

    Are you lost on your tabs mate?

     

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  99.  
    identicon
    Anonymous Coward, Aug 20th, 2011 @ 7:09pm

    Re: Re: So How Do We Fix The Patent System?

    In his case I think the "drunk" button may be more accurate LoL

     

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  100.  
    identicon
    Anonymous Coward, Aug 20th, 2011 @ 8:43pm

    The only way to "fix" the Patent system is to abolish it along with copyright/intellectual property/etc which to do that is to abolish Capitalism completely and replace it with Socialism and then finally Communism. It's the only way.

     

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  101.  
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    nasch (profile), Aug 20th, 2011 @ 8:45pm

    Re: Wrong question, again, I fear.

    Oh yes, barter worked much better. That's why all the most effective societies use it instead of money, right?

     

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  102.  
    identicon
    Anonymous Coward, Aug 21st, 2011 @ 12:16am

    Re: Re:

    How wrong can you be?

    You said: "First, note how a business MUST reveal their secret if it ever hopes to make money."

    Yes, but a patent doesn't require a product to market. The patent would already be granted at that point, so independant / parallel invention would be a non-issue.

    You said "Second, you are agreeing that many people can come up with things if they know of market demands"

    Me: Being aware of market demands doesn't mean that you can come up with jack shit. Just as importantly, many great innovations play on market segements that others did not know even existed. It isn't at all clear that all players (or any more than one player) might know what the market demand really is.

    You said "A major goal of patents might very well be to make a few very wealthy to the detriment of the majority. Another goal might be to block competition for a long time.

    A naive observer might have thought patents were intended to promote the progress."

    Me: Once again, it's hard to deal with this because you seem unable to accept the concept that the two are not mutually exclusive. The financial / profit angle is what brings the money to the table that allow much of true innovation to occur. People invest in startup online companies not because they want their names online, but because they are looking for a great return on investment. The same logic applies in R&D at various levels, which in most companies, happens where there is a bottom line justification to do it. The old "business case".

    You said: "Making broad monopolies less secure and less valuable is a victory for competition and freedom.


    Me: It's also a victory for the luddites who would like to make it less desirable for companies and individuals to invest in R&D or to develop new ideas and implementations. Short term, you are like a looter in a riot. Long term, you are like a looter months after the riot, when nobody has come back to rebuild anything in the neighborhood. You have to live with your short term greed.

    You see that thing on the ground? It's your nose, the one you cut off to spite your face. Short term thinking is a true sign of selfishness. I suspect you pirate lots of stuff too, am I right?

     

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  103.  
    identicon
    Anonymous Coward, Aug 21st, 2011 @ 2:26am

    Re: Re: Re:

    http://www.popsci.com/technology/article/2011-08/13-year-old-designs-breakthrough-solar-array-based- fibonacci-sequence

    http://www.popsci.com/technology/article/2011-07/darpas-vehicleforgemil-aims-c rowd-sourcing-next-gen-combat-vehicles

    Making broad patents less secure and even getting rid of them all may be a blessing to America and could improve national security in the process.

    Patents don't bring wealth, they bring speculators that have no interest beside their own bank accounts which is bad, since other parts of a functional society keep getting the shaft instead of being maintained.

    But you can't see that can you?
    You can't see that patents don't benefit small people only ultra-big companies that keep milking countries and don't give nothing in return.

     

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  104.  
    identicon
    Anonymous Coward, Aug 21st, 2011 @ 2:41am

    Re: Re: Re:

    The future will be crowdsourced, patents have no place in that future.

     

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  105.  
    identicon
    staff, Aug 21st, 2011 @ 7:21am

    patent bill is bad for America

    "So How Do We Fix The Patent System"

    I'm glad you asked that question. Please see http://truereform.piausa.org/default.html#rr for inventors views.

    "patent reform"

    Just because they call it “reform” doesn’t mean it is.

    The patent bill is nothing less than another monumental federal giveaway for banks, huge multinationals, and China and an off shoring job killing nightmare for America. Even the leading patent expert in China has stated the bill will help them steal our inventions. Who are the supporters of this bill working for??

    Patent reform is a fraud on America. This bill will not do what they claim it will. What it will do is help large multinational corporations maintain their monopolies by robbing and killing their small entity and startup competitors (so it will do exactly what the large multinationals paid for) and with them the jobs they would have created. The bill will make it harder and more expensive for small firms to get and enforce their patents. Without patents we cant get funded. Yet small entities create the lion's share of new jobs. According to recent studies by the Kauffman Foundation and economists at the U.S. Census Bureau, “startups aren’t everything when it comes to job growth. They’re the only thing.” This bill is a wholesale slaughter of US jobs. Those wishing to help in the fight to defeat this bill should contact us as below.

    Small entities and inventors have been given far too little voice on this bill when one considers that they rely far more heavily on the patent system than do large firms who can control their markets by their size alone. The smaller the firm, the more they rely on patents -especially startups and individual inventors.

    Please see http://truereform.piausa.org/default.html for a different/opposing view on patent reform.
    http://docs.piausa.org/

     

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  106.  
    identicon
    Anonymous Coward, Aug 21st, 2011 @ 7:58am

    Re: Re: Re: Re: Independent invention

    Exactly. Innovation is about trial and error, most ideas fail, but few succeed. Patents make the trial and error process much more expensive and so everyone is afraid to try anything, in fear of getting sued, and so innovation suffers.

     

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  107.  
    identicon
    Anonymous Coward, Aug 21st, 2011 @ 7:59am

    Re: Re: Re: Re: Re: Independent invention

    ABOLISH PATENTS!!!! ABOLISH THEM!!!

     

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  108.  
    identicon
    Anonymous Coward, Aug 21st, 2011 @ 8:02am

    Re: patent bill is bad for America

    That website looks like it was written by a first grader.

    "Often proponents speak of a few patents such as one that describes a way of exercising cats. They cite that as proof that the Patent Office has lost its ability to examine patent applications. What they don't tell you is that such patents never matter."

    Which misses the point entirely. The point is that, if the USPTO can grant such obviously bad patents, why should we trust them to grant patents at all? How can we trust them to grant patents in specialized fields when they can't even get something so obvious right?

     

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  109.  
    identicon
    Anonymous Coward, Aug 21st, 2011 @ 8:03am

    Re: Re: patent bill is bad for America

    Here is a clue. Instead of simply linking to websites that have nothing substantive to say, why not say something substantive. I know that's a hard concept for IP maximists to grasp, but at least try.

     

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  110.  
    identicon
    Anonymous Coward, Aug 21st, 2011 @ 8:53am

    Re: Re: Re: Re: Re: Independent invention

    How do you define the word "innovation"?

     

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  111.  
    icon
    The eejit (profile), Aug 21st, 2011 @ 9:15am

    I have a plan for reforming the patent system:

    If it isn't in a working prototype after 12 months, you lose the right to patent it. Once it's in a prototype, you have an additional 12 months to take it to a marketable product.

    Oh, and by the way - if you haven't made a prototype and you file suit against someone? Bye-bye to all patents you hold.

     

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  112.  
    identicon
    Anonymous Coward, Aug 21st, 2011 @ 9:34am

    Re: Re: Re: Exclude Software

    "Nothing invented by a mechanical process or algorithm should be patentable at all."

    Ignorance.

    Let me elucidate: Everything in the world CAN be produced by an algorithm. If I want to produce the world in its entirety, it can be a single algorithm, even.

    Right now, for example, there exists a machine which is experimenting with 1000's of chemical reactions every hour, and is independently measuring them, plotting them in graphs, and within the scope of its original construction, writing academic papers for publication. Yes, the machine starts the experiments, decides what they mean, and the machine also produces an electronic document in academic parlance of what the results mean.

    Now, this machine is capable of quite a bit; left to its own, it will eventually discover a lot of chemical reactions and processes that have been patented or trade secreted in the past.

    Teflon? Carbon nano-tubes? Buckyballs? Synthetic Diamonds? If I recall correctly, the machine is dealing specifically in area of organic compounds, which makes creation of those four examples above quite likely to be within the possibilities of the machine. The machine does more than mix & measure, and if I so desired, I could have it try many, many other things that would result in discovering manufacturing processes.

    Should they all be unpatentable because they can be discovered by a machine?

    And hey, that's not even getting into the blurry line between 'invention generator' and 'just a tool I use to invent stuff'.

     

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  113.  
    identicon
    NullOp, Aug 21st, 2011 @ 9:35am

    Fix

    Nothing wrong with the system. The problem is the trolls and the courts. The courts need to recognize when one company is trying to eliminate competition by playing the "Patent" card.

    As for the trolls....a little prison time, real prison, not a "country club", for bringing false litigation should do the trick.

     

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  114.  
    icon
    cgt (profile), Aug 21st, 2011 @ 10:04am

    The problem with the patent system (and IP in general) is that it violates the natural right to private property and rights derived from it, such as freedom of speech.

     

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  115.  
    identicon
    Anonymous Coward, Aug 21st, 2011 @ 11:21am

    Re: Re: Re: Re: Exclude Software

    That being said, I wouldn't be completely against NOTHING being patentable.


    Although it seems to me the ideal ground would be the middleground, somewhere.

     

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  116.  
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    Crosbie Fitch (profile), Aug 21st, 2011 @ 11:39am

    Re: Re: Re: Re: Re: Exclude Software

    Appeal to moderation is a logical fallacy.

    One might as well suggest that the solution to disquiet among cotton farmers' slaves is some middle ground between the status quo and the abolition of slavery.

    Why should 7 billion people on this planet be denied the liberty to utilise certain technology, or manufacture certain medicines, just to enrich one immortal corporation?

    The immortal corporation is going to scream blue murder if you abolish their patents, but fuck them. I say take off and nuke the entire canon of patent law from orbit. It's the only way to be sure.

     

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  117.  
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    Eugene (profile), Aug 21st, 2011 @ 12:15pm

    Take a cue from Hollywood Producers

    At least where it comes to patent quality and keeping out obvious concepts, maybe the patent office should take a cue from Hollywood here. Producers look for good scripts by hiring people to read through their many, many submissions, and approve only the best. If a reader approves a script the producer deems unacceptable, the reader is in danger of being fired. This puts a HUGE incentive on the reader to deny more scripts than they approve.

    Tons of "bad" movies still get made, obviously, but at the same time our standards for what counts as "bad" in Hollywood are extremely high. Even the worst drivel to be made into the next Rom Com still ends up being incredibly professional and structured. They still suck, but you have to admit that they suck in a very polished way.

    On the other hand, it seems like Patents take the exact reverse view: readers have an incentive to approve more than they deny. Shoot, now imagine how bad movies would be if Hollywood operated *that* way!

     

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  118.  
    identicon
    Anonymous Coward, Aug 21st, 2011 @ 1:28pm

    Re: Re: Re: Re: Exclude Software

    Zero protections.

    Does it make sense to exclude others in a collaborative environment?

    That depends on the free flow of information and practices to exist?

    Nope, then there should not be any pseudo-protections that are not really protections since patents cost thousands of dollars to get and maintain and more to enforce it so it probably will be sold for peanuts to speculators that breed faster than rabbits.

    Patents also create artificial inflation that at some point will come down crashing.

    Want to see what protections create?
    Look at how the healthcare in the US is doing, it is all protected isn't it.

    Now people flow to New Zealand to pay 10% of what it would cost in America.

    http://www.azcentral.com/arizonarepublic/news/articles/2009/06/07/20090607rxtourism0607. html#reply17699291

    Equipment keeps getting expensive, personel keep getting raises, there is nothing inside that market that would force and adjustment of the system it was all planed out except that who pays the bill is the people and they will not be able to.

    This "protection" you so call have happened hundreds of times before in history, and in every single case of it they all went away mostly dispatched violently.

    Every single occurrence of granted monopolies ended in catastrophic failure in history. Many times it was bloody also.

    It happens every time, the monopoly holders get greedy and start expanding the definitions of what they are entitled to, which eventually piss off a large group of people that hunt them down and terminate those privileges and after a few decades those monopolies appear again and the cycle begins anew.

     

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  119.  
    icon
    Hoby (profile), Aug 21st, 2011 @ 2:37pm

    weights, purpose, and periodic reviews

    I'd say that the three biggest changes that could fix the patent system would be the introduction of: patent holder "weight", patent purpose, and periodic reviews of what effect the granted patents are having on their markets and innovation.

    Weights - the more the patent holder "weighs" in their market in terms of holdings, influence, and domination then the less time and protection they'd get for their patents.

    Purpose - what are they using the patent for: guiding the market, leveling the playing field, or sitting on it? Requiring the intended purpose to be stated and comparing that to the purpose that actually happens would identify patents being mis-used by patent trolls, innovation stiflers, and monopolizers for easy disqualification.

    Reviews - What happens after the patents are granted? Do they have a good or bad effect on the world? Depending on the type of invention, the frequency of the review dates would be different but the results of identifying patents doing harm to innovation and fair competition should do the same.

    Apart from those general practices, I'd suggest banning patents surrounding living organisms (particularly "found dna") and changing the pricing structure of filing such that the upfront cost is low but the continued price to retain the patent rises over time.

     

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  120.  
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    nasch (profile), Aug 21st, 2011 @ 4:21pm

    Re: patent bill is bad for America

    Small entities and inventors have been given far too little voice on this bill when one considers that they rely far more heavily on the patent system than do large firms who can control their markets by their size alone. The smaller the firm, the more they rely on patents -especially startups and individual inventors.

    [citation needed]

     

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  121.  
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    nasch (profile), Aug 21st, 2011 @ 4:30pm

    Re: Re: Re: Re: Exclude Software

    Should they all be unpatentable because they can be discovered by a machine?

    Why not? Will the machine hold the patent? If a person holds the patent, then someone has the patent who didn't invent the invention. What is the point of that? Does the machine need incentive to produce that would be lacking without patents? The whole purpose of a patent is not served in this case.

     

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  122.  
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    nasch (profile), Aug 21st, 2011 @ 4:31pm

    Re: Fix

    What do you mean by false litigation? These are real patents and lawsuits that the patent trolls have a chance of winning. The problem is the system views this as legitimate litigation.

     

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  123.  
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    nasch (profile), Aug 21st, 2011 @ 4:33pm

    Re: Re: Re: Re: Re: Re: Exclude Software

    He didn't say he favors the middle ground because it's the middle ground. He didn't say why he favors the middle ground, so we can't really judge if his reasoning is fallacious or not.

     

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  124.  
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    nasch (profile), Aug 21st, 2011 @ 4:36pm

    Re: weights, purpose, and periodic reviews

    Another idea I like that I've heard on this site is a financial incentive. The patent holder has to declare the value of the patent, and then pay taxes on that value. Later they can only sue for the amount they declared.

     

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  125.  
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    Anonymous Coward, Aug 21st, 2011 @ 5:32pm

    Re: Re: Re: Re: Re: Re: Re: Exclude Software

    Thanks :)

    I favour the middleground because there are patents that serve good purposes, and the purposes patents are intended to serve.

    No, they may not be many, but they exist. So, eliminating ALL patents would also be destroying a good thing.

     

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  126.  
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    Anonymous Coward, Aug 21st, 2011 @ 6:19pm

    Re: Re: Re: Re: Re: Exclude Software

    I like these questions. I can't answer them, though, here's why:

    "Why not? Will the machine hold the patent?"
    If someone besides a machine was researching the, they would be doing so through thought, theory, high-level knowledge & thinking, using skills that took them decades to attain; Presumably.
    The machine would be finding things through rigour, (any breakthroughs would be the programmers), and will cost much, much more to run the same experiments, (because it'll be running them 1000's of times over with slight differences, and may not be able to conclude that certain pathways aren't worth taking).

    So, who is more worthy of a patent; the person who spends $100,000 to engineer something new, or the person who spends $5,000,000 to run the machine?
    The ownership doesn't really come into question, because the employer of the researcher gets the patent anyways. Which nicely addresses your next question:

    "If a person holds the patent, then someone has the patent who didn't invent the invention. What is the point of that?"

    In pretty much any research position in any industry, who holds the patents, OWNS the patents when you discover something? You? Nope, your name is on there, but the company owns it.
    I think that's a pretty close analogy; the employer of the scientists to the owner of the machine.

    "Does the machine need incentive to produce that would be lacking without patents? The whole purpose of a patent is not served in this case."

    I actually disagree; the machine does not cost nothing to run.
    Since patents are about monetary incentive, I think that 'a machine made this' would be a better argument for patents. Y'see, with people, it's hard to say (sometimes) whether the invention would've happened anyways, but if something is invented by a machine, it's much more clear that whoever was paying for the machine to run wanted to earn money from it. And without the possibility of earning money, would not have run the machine. And the machine wouldn't have invented anything.




    I think I should also expand on my original post.
    My point, was that if machine-made inventions shouldn't be patented, inventions which I think are perfectly valid, and should be protectable by patent, could be de-patented simply because a machine was running somewhere which produced, by chance, that result, among 10000's of other useless ones, and maybe 100's of other useful ones.

    It still took someone time, money and skill to make that invention, and only by chance is that hypothetical invention pre-covered by that machine. Imagine I had a skunkworks dedicated to researching organic compounds for a particular use, and came up with 100 useful ones, but the most useful one had been pre-discovered by a machine whose owners didn't, before your discovery, recognize its importance.
    What separates that compound from the other 99 which are still patentable in this situation?

    The seed of the random generator of the machine? Time? The answer would be both.
    And if the most useful one if unpatentable, that pretty much makes the other 99 useless, eh?

    OTOH, you can't really patent EVERYTHING that machine discovers.

    And if you make everything unpatentable which could potentially be discovered by a machine, that's everything.

    Now, if something was discovered by a machine, that might be a good indicator that the patent shouldn't have been granted, but it's definitely not a black/white issue.

    [/ramble]

     

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  127.  
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    nasch (profile), Aug 21st, 2011 @ 7:12pm

    Re: Re: Re: Re: Re: Re: Exclude Software

    How about this angle - if the designers of the machine are of ordinary skill in the field, then the machine cannot make anything that would qualify for a patent. Everything the machine does, the people could have thought of, the machine just thinks of it faster. Perhaps the developers are of extraordinary skill? Would that make the inventions more patentable, since someone of ordinary skill wouldn't find it obvious?

    So, who is more worthy of a patent; the person who spends $100,000 to engineer something new, or the person who spends $5,000,000 to run the machine?

    Effort or money spent have no bearing on patentability.

    Y'see, with people, it's hard to say (sometimes) whether the invention would've happened anyways, but if something is invented by a machine, it's much more clear that whoever was paying for the machine to run wanted to earn money from it.

    I don't think that's clear at all. I have machines that cost money to run, and I run them for reasons other than making money. Besides which, what does that have to do with the topic? Whether I want to make money has nothing to do with whether my invention is patentable.

    My point, was that if machine-made inventions shouldn't be patented, inventions which I think are perfectly valid, and should be protectable by patent, could be de-patented simply because a machine was running somewhere which produced, by chance, that result, among 10000's of other useless ones, and maybe 100's of other useful ones.

    I don't see the problem with that. If it's so simple that with the current state of the art it can be discovered with a machine, that seems to clearly meet the independent invention criterion Mike mentioned. This is just not something that wouldn't have been invented without a patent.

     

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  128.  
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    geektopia, Aug 21st, 2011 @ 8:04pm

    Re: It is horrible!

    "This is an EXTREMELY low standard. I don't know how else to put it."

    NOTAMIAH - Not Obvious to a Moron in a Hurry

     

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  129.  
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    Anonymous Coward, Aug 21st, 2011 @ 10:45pm

    Re: Fix

    "The problem is the system views this as legitimate litigation." Correct. So no patent troll goes to jail.

    However, even if some careless troll does something which gets them jail time (not likely, they are lawyers, remember?), then no jail time happens because the trolls are judgment-proof entities. They are shell companies controlled by unknown persons. The US legal system has no chance of ripping away the corporate veil, especially if the chain of ownership goes through some foreign tax-haven jurisdictions.

     

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  130.  
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    Eldakka (profile), Aug 21st, 2011 @ 11:09pm

    Re: Re: Re: Re: Re: Kay..

    Most inventors don't do patent searches.

    Most organisations submitting patents also don't do patent searches before submitting a patent.

    Why?

    Because of a little thing called "Willful infringement'.

    That is, if you are sued for breaching a patent, and that breach is found 'willful', it could treble damages.

    One of the tests for willfullness is if someone had knowledge of previous patents. And one aspect of this is if you've seached the patent database. If they DID do patent searches, then they HAVE to have found (so the argument goes), known about, a previous patent. Therefore they have willfully breached a patent.

    Therefore if you never do patent searches before embarking on new research or submitting your own patent, it's harder to prove willfullness.

    And, as can be seen from the patent numbers, there are MILLIONS of patents. Which means you have to construct keyword searches. What if you got the wrong keywords? Or if your keywords returned 20,000 patents? Do you read every single one of those 20,000 matches to see if they cover what you are trying to patent? I doubt it.

    Patent examiners have the same problem. With millions of patents, it's quite possible to return too many matches to practically go through them all. So you try to refine your terms a bit, but hey, the refined terms could actually exclude a previously matching patent that is relevant.

     

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  131.  
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    Anonymous Coward, Aug 22nd, 2011 @ 12:33am

    Re: Re: Re: Re: Re: Re: Re: Exclude Software

    "If it's so simple that with the current state of the art it can be discovered with a machine"

    Okay . . .two different points:

    1) A machine is not a feeble thing.

    Right now, there are computers that do learn better than humans . . . in particular sub-fields. And they're getting better, and more general. And computers are more powerful than ever before in terms of raw strength.

    2) That a 'simple' machine cannot come up with anything complicated.
    "How about this angle - if the designers of the machine are of ordinary skill in the field, then the machine cannot make anything that would qualify for a patent."

    I can create a machine, without knowing anything about a field, but directing the machine to learn about the field through trial and error. By analogy, I can create a machine to navigate mazes without knowing anything about solving mazes myself. Anyways, your assumption: A machine cannot invent anything more complex than the inventor could've done. I disagree.

    You are dealing with the assumption that nothing complex can come out of something simple. That is something that we know is not true, and that knowledge has been a turning point in many fields of science this past century.

    Take conway's game of life; it uses 2 rules that you can iterate through without difficulty.
    1.A cell dies if it has not enough neighbours, or too many. (It needs 2-3)
    2. A cell is born if it has 3 neighbours
    Through these two simple rules, if you have a large enough grid, you can model anything in the universe. Given a large enough grid, and enough time, you could model the entire universe without simplification using conway's game of life. Every complex idea that exists could be modelled using those two rules.

    What this means, is that I can have no knowledge in a field and still make something non-obvious. It isn't likely because I'm very slow.

    Computers are not slow. Computers are billions of times faster.

    So, if I make a computer to iterate through a field, if you pick anyone else in the field, they aren't likely to come up with a method that my hypothetical computer has iterated through. But across everyone in the entire field, it's pretty likely that one person will. That's what I'm trying it get across. It's a birthday problem type thing.

    End result: A very simple machine has created something very complex, that is likely buried under 1000's of other trials, or that happens to be something I'm not thinking to look for. Someone else IS looking for it, and in their experiments finds it. But because my machine (randomly) came up with the same setup, they aren't allowed to patent it, and make money for their work?

    In the past, this hasn't been an issue because computers hadn't been powerful enough that simple iteration could birthday-attack inventions like that. And software hadn't previously been powerful enough to know how to set its own targets, making the computer so much more powerful again, that machines are now capable of writing academic papers good enough for publication.
    And none of this means that the inventions they come up with are obvious, either to people with ordinary skill in the art, or a lot of frickin' skill in the art. Even if they don't use powerful AI, they can still create non-obvious content through random iteration in a particular field, and be powerful enough to probably birthday-attack SOMEONE. (But then, by picking apartiuclar field, we get closer to directing the machine, and it starts to blur and become 'that machine I used to help me invent'. Different issue)


    So, a machine comes up with an idea? Well, let's ignore the part where that blurs into "I used this machine to help me".
    Then we have a machine which, independent of precise instruction, came up with an idea, (assume it would appear patentable if the machine had not come up with it). If it comes to light, why shouldn't the person running the machine get a patent on it? (I)
    If someone already has a patent, why should that invalidate their patent? (II)
    If it doesn't come to light until someone gets a patent later, why should that invalidate their patent? (III)

    I believe that accounts for every scenario.

    I. This boils down to the question: Would more entities/people be incentized to run such machines if they could patent the results, than people who would not research or run such machines due to said patents?

    The answer should be yes if the basic premise of patents is correct in the first place, (I believe it is, applied properly). The question is the same as asking whether 'people/entities would be incentized to invent . . . to said patents'
    Right?

    II. Why should it invalidate their patent?
    The argument from independent invention says that the patent should've been obvious if someone else came up with it. This is a cogent argument because inventions are not usually flashes of genius, but the right conditions occurring, and plenty of people in the field having the same ideas floating around their heads.
    The computer is not subject to any of these conditions. (Unless it was precisely directed; different issue, we assume this is not the case).
    But the computer is still subject to the conditions of material costs & abundance, or if some other new process was discovered, (and programmed into the machine), that makes something about finding the invention easier, than in either situation it IS evidence of obvious-ness, once those materials/processes are available.
    But otherwise, the computer is not subject to any conditions/ideas that mean its independent invention means the idea is obvious.
    (Unless the data points only towards that path or similar, but see the assumption, that the idea appeared patentable except that the computer thought of it).
    So, unlike a human researcher, where independent invention implies obviousness, a computer does not (always) imply the same.
    Do you agree?

    III. Comes to light later, someone else tries to get a patent.

    I think this is the most obvious scenario. The original inventor did not realize the importance of his invention. The person who did applies for the patent. Is the idea obvious? Even before I mention that the first inventor is a machine, I think that the idea isn't obvious because you're still missed it. I would classify that as non-obvious, because you didn't even know where to look to get that result. The person who tries to get the patent, did.

    The machine could presumably moves through more steps than an inventor could, and still miss that result, but regardless, the result was still missed. With the inventor, he didn't know where to look, with the machine, it might just be that it has so much more data to look through, even if it does know where to look.

    In either case, someone else missing the invention before you come up with it, does not make it unpatentable in my eyes; It might imply that the idea is not obvious.
    Now, the computer can miss an obvious idea, (while we assume the inventor wouldn't), but see the assumption that the invention appeared patentable before the computer came up with it.


    So, let's summarize my arguments, because I probably over-rambled:

    1) Computers independently arriving at an idea does not imply the idea is obvious, unlike human researchers who are subject to the same ideas and research floating around that leads to multiple human researchers discovering the same things at approximately the same thing.

    2) Computers are fast enough, compared to humans, to have a significant chance of randomly performing the same research as someone else, even while being 'simple' in the sense that they do not enter the field with prior understanding of the field. Not anyone in particular, but of all the people that are researching, one person in that group is likely to be researching something that the computer also researchs. Like a birthday problem, except that while everyone else has 1 birthday, and the chances of two people colliding without a reason are insignificantly low, the computer has 100 distinct birthdays.

    And the assumptions made:
    1) The computer is not directed. If the computer is directed to study something, that's a different issue again, because then the computer becomes 'a machine that I used to help me invent this'.

    2) That the patent would appear patentable, except that the computer also came up with it.



    And finally:

    "Effort or money spent have no bearing on patentability."
    Yes. That was rather the point.
    As a corporation, I have a research producing machine; that can be scientists in a lab, or it can be a literal machine.
    Either way, the corporation may be incentized to produce/fund research if it will be given patents, and may not be incentized to provide these funds if it will not receive a patent. And since patents are about making incentives for research it follows that it doesn't matter if a machine creates the invention or if a scientist does, as long as the patent encourages progress.

     

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  132.  
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    Mike Masnick (profile), Aug 22nd, 2011 @ 1:03am

    Re: Re: Re: Independent invention

    Because once a certain amount of time after a patent's filing date has elapsed, the claim that a particular apparatus or method was "independently invented" begins to lack merit.

    What makes you say that?

    To prove the point, I'll ask a simple question. Do you think that everyone sued by Lodsys "copied" Lodsys' patent to decide to do in-app purchases? Or do you think that most of them realized that buying something from within an app is just a naturally good idea?

    The idea that you could "independently invent" an apparatus or method 5 years after I filed a patent application disclosing the same invention is pretty unbelievable.

    You say that as if it doesn't happen all the time. Again, the Lodsys example is just an extreme one. But the real problem and the reason why the Lodsys example exists is because patents don't really "disclose" anything at all. No one thought of doing in-app payments because of the Lodsys patent. It doesn't disclose anything useful at all.

     

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  133.  
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    Crosbie Fitch (profile), Aug 22nd, 2011 @ 1:03am

    Re: Re: Re: Re: Re: Re: Re: Re: Exclude Software

    Ah yes, the mythical 'good patent', that patent supporters assert exists, but like the yeti can't actually locate, bar some 'promising' footprints.

    On the same basis, I expect slavery supporters were against its abolition just in case in rare and obscure cases some slaves actually preferred good living conditions to the insecurity of liberty and having to fend for themselves.

     

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  134.  
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    Anonymous Coward, Aug 22nd, 2011 @ 1:16am

    Re: Re: Re: Re: Re: Re: Re: Re: Exclude Software

    If they are few than the harm done by patents is greater than the benefits.

     

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  135.  
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    Anonymous Coward, Aug 22nd, 2011 @ 1:22am

    http://www.physorg.com/news/2011-08-powerful-corporations-world.html

    A study came out showing that 147 entities hold 40% of all monetary resources in the world.

    What would happen if we did take a look at the millions of patents inside of any one country?

    We probably see the same pattern, very few companies would hold all the important patents and be able to exclude everybody else.

    Now anyone serious about a healthy market would take a good hard look at those things and ask himself if that is good for it.

    Patents coalesce into big pools and end up excluding others permitting a few companies to control the entire market, harming the economy and slowing down innovation and startups the bread and butter of a healthy economic system.

     

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  136.  
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    Anonymous Coward, Aug 22nd, 2011 @ 8:40am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Exclude Software

    Okay, Insulin.

    The patenter of insulin wanted to ensure that different companies would not pop up with different, possibly dangerous products, and that every cent from the sale of insulin would go right back into diabetes research.
    Every cent did.

    Just one of the top of my head.

     

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  137.  
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    Jose_X, Aug 22nd, 2011 @ 8:44am

    Re: Re: Re: Independent invention

    >> The idea that you could "independently invent" an apparatus or method 5 years after I filed a patent application disclosing the same invention is pretty unbelievable.

    Did the person who filed the patent reside exclusively within a cave and its dull stimulation for the 20 years preceding the patent application? No. So what makes you think that the same influences (give or take) that led that person to a patent claim (especially with such a low bar of inventiveness) won't also lead anyone else to the same re-invention?

    Children in the US pass by the first grade in elementary school at different points in time, but each is in a position to "equally" pass the very same final "examination". To think that only 1 or a handful can pass it and everyone else must have copied is ludicrous. Even if the exam was very difficult, there is almost certainly more than just a few who would be able to pass it year after year.

    .. Maybe we should only award patents once a Nobel Prize has been given and only to the extent (a narrow extent) as the Prize expert committee (who likely work off opinions in the wider community) would recognize such accomplishments. In this case, we'd still get independent re-invention for the very same reason, which is that what led to that work gets repeated in time (not to mention you usually have multiple parties competing and following the same state of the art leads). So even if the standard was rather high, a patent "monopoly", as it is defined today, should not last very long (eg, 5 years max for certain industrial product uses). If you were doing research for years and was keeping up with the state of the art and was contributing back, would you want the person who ran the last leg of that race get all the credit and be able to stop your work? Would that promote progress?

     

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  138.  
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    Anonymous Coward, Aug 22nd, 2011 @ 8:49am

    Re: Re: Re: Re: Re: Re: Re: Re: Exclude Software

    Yes, I was very sleepy as I wrote this, and still very sleepy.

    Which is why I rambled much longer than I normally do.

     

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  139.  
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    Crosbie Fitch (profile), Aug 22nd, 2011 @ 9:01am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Exclude Software

    Er no. You have to show that without the patent system, Insulin would not have been discovered/invented (given no monopoly) as soon as it was.

    Anyone who discovers/invents something that is patentable is highly likely to patent it. That is not the alleged benefit of patents (to encourage patenting). The alleged benefit is that more useful innovation is delivered to the public with patents than would be without them.

     

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    nasch (profile), Aug 22nd, 2011 @ 10:32am

    Re: Re: Re: Re: Re: Re: Re: Re: Exclude Software

    Someone else IS looking for it, and in their experiments finds it. But because my machine (randomly) came up with the same setup, they aren't allowed to patent it, and make money for their work?

    Once again, this looks like a situation where a patent is not necessary to come up with an invention. Two different groups are already working on the problem and independently coming up with similar solutions. The public would be better served by allowing competition than granting a patent.

    Would more entities/people be incentized to run such machines if they could patent the results, than people who would not research or run such machines due to said patents?

    The answer should be yes if the basic premise of patents is correct in the first place, (I believe it is, applied properly). The question is the same as asking whether 'people/entities would be incentized to invent . . . to said patents'
    Right?


    Yes, and it looks to me like there's plenty of incentive to create without patents. In fact I don't recall any real evidence that patents encourage innovation, and we really should be relying on evidence before enacting anticompetitive laws.

     

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  141.  
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    nasch (profile), Aug 22nd, 2011 @ 10:34am

    Re:

    But... but... the little guy! They rely on patents much more than big corporations. It must be true, because Ronald says so!

    (how do I do that SarcMark again...)

     

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  142.  
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    Skeptic, Aug 22nd, 2011 @ 2:11pm

    Re: Re: Independent invention

    Interesting paper, reading now. However, some preliminary thoughts:

    In that paper, Vermont notes that there's actually a much greater incentive *today* to fake an "I invented it first" claim, since we're a first-to-invent country, and if you fake that, then you get the patent and the other guy doesn't. And yet there's almost no evidence of such things being faked.

    The paper suggests that fraudulent reinvention would be rare because fraudulent first invention is rare (no citations or data provided for either assumption, but the fact that interference proceedings themselves are extremely rare, I think there's no real data out there). However, the paper itself goes on to show why claims to fraudulent first invention are difficult to make, and admits fraudulent reinvention is much, much easier.

    Like the paper says, if you want to fake independent invention, you would need to commit perjury and/or fraud, and there's a risk/reward calculation. There is no evidence of faking because right now independent invention is not a defense, so there's no motivation to risk faking such evidence. If you enable independent invention defenses, you can bet the motivation to avoid multi-million dollar lawsuits will spur cases of fake re-invention (which, as the paper itself points out, is as easy as backdating lab notes).

    The paper even suggests fraudulent reinvention claims are less likely because the inventive community is more honest than the general population. This is laughable for 2 reasons:

    1) I have not met a researcher (and I know many in fields ranging from biotech to EE to CS) who is not somewhat paranoid about someone stealing their research. OTH, I know multiple researchers who have actually had their research stolen, sometimes by the very same anonymous reviewer that kept their paper from being accepted by a publication, and sometimes even by well respected professors in the field who took an early draft to "review it".

    2) It doesn't have to be the inventors who put up a fraudulent reinvention defense, it would be their employers, who are likely to be even less scrupulous.

    At least, at first glance, the paper actually convinces me otherwise.

    Why does there need to be a timeline? Once multiple independent invention has occurred, then the patent should be invalid.

    You mean to say there's no value in inventing something first? Then why even bother spending money in R&D when you could simply wait for your competitors to put something out there, rip it off and say, "hey, we did this by ourselves." Look at the iPhone and Android. The iPhone was released first, but Android - undoubtedly independently developed but heavily "inspired" by the iPhone - was out there in less than a year. Was it any surprise Apple sued the bunch of Android makers?

    First mover advantage you say? Sure. Ask Apple about Macs and PCs, or iPhones and Android. Or ask the many small companies Microsoft has embraced-extended-extinguished.

    Even Lemley's latest paper posits that the value in patents is that they spur R&D "races" to patent a new technology first, which benefits society because you get new knowledge out in the public quicker. That premise seems valid to me, although the historical evidence he provides is quite flawed.

     

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  143.  
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    Overcast (profile), Aug 22nd, 2011 @ 7:01pm

    Any 'fix' will only further be more 'gimmies' to corporations; since corporations own all the politicians.

     

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  144.  
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    Ron Robinson, Aug 28th, 2011 @ 4:00pm

    Current Patent Reform is a Major Job Killer

    I've been astonished at how the 'patent reform' legislation will kill jobs, and it's a 'two-fer' for being unconstitutional. See: http://www.redstate.com/elronaldo/201... It's a huge payoff for the Big Banks and Wall Street, so Obama and Harry Reid want to bring this quietly to the floor of the Senate in non-amendable fashion on the very first day back from recess. I hope we can stop them and activists who want to help stop it can go here - see http://jobsNOTbanks.com

     

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  145.  
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    Anonymous Coward, Sep 9th, 2011 @ 10:07am

    Re: Re: Independent invention

    Faking that you invneted it first requires a time machine or an abilty to convincingly back date doctored evidence.

    Faking independnet invention simply require that when you decide to copy you simultaneous come up with a cover story of how you created it and no back dating is necessary. You could even plant one guy who knows the copied solution in a lab amongst honest guys who dont know about the copying and have him prod them in the right direction until they get it and have the honest guys declare in court.

    Its not a comparable situation.

     

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  146.  
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    Anonymous Coward, Sep 9th, 2011 @ 10:12am

    Re: Re: Re: Re: Re: Kay..

    Sorry you are wrong on this.

    The US currently has a best mode requirement

    http://www.uspto.gov/web/offices/pac/mpep/documents/2100_2165.htm

    Most other countries don't but it makes very little difference in practice becuase not including your secret sauce in the patent is very risky. When you file you have no idea how a broad a patent you will get and what features might be required to be put into the claims to make it valid. Delibrately excluding clever features may mean you don't get a patent and someone else does preventing you from using your secret sauce.

     

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  147.  
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    Re: everything, Jul 5th, 2012 @ 6:10pm

    First stop people holding up gas stations.
    This will be easier than stopping people filing patents.

    :-D

     

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  148.  
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    Anonymous Coward, Jun 11th, 2013 @ 12:25am

    Re: Re:

     

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