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Patents

by Mike Masnick

Fri, Feb 8th 2013 12:43pm




Filed Under:
independent invention, mark cuban, obviousness, patents


Mark Cuban Agrees: Independent Invention Is A Sign Of Obviousness; And Should Kill Patents

from the excellent dept

For years, we've talked about the idea of an independent inventor defense for those accused of patent infringement -- which, contrary to the claims of some patent attorneys, is totally feasible -- and that idea has received some traction. However, we've also argued that things should go even further, and that if there is evidence of multiple independent inventions of the same concepts that it is a sign of obviousness, and all such patents should be rejected -- since patents are not allowed on inventions that are considered "obvious" to those who are "skilled in the art." Unfortunately, we've seen less support for that specific idea -- but perhaps that's changing.

Mark Cuban recently gave an interview to TechCrunch in which he discusses his rationale for giving EFF $250,000 to create the "Mark Cuban Chair to Eliminate Stupid Patents." When asked about how he would fix the patent system, he names a few popular ideas, like getting rid of software patents, requiring that the invention be put into practice, but he also (repeatedly) talks up how independent invention should be a sign of obviousness. A few snippets:
I would also like to see a "cold room" exception. If you can show you invented the idea using completely independent thought, you don't violate the patent and the patent is invalidated.

Remember back in the 80s when AMD/Intel and others would clone each other and it was permissible because they came up with the features and functions completely independently? The same should apply to patents. If you didn't copy an idea, you came up with it on your own, then the idea should not have been patented in the first place. If multiple people come up with the same idea independently, that is the definition of obvious.

You should be given the right to your idea if you come up with it independently and any patents in place for that idea should be invalidated.

[...]

Independently derived ideas that are turned into products and can prove they are independently derived (Again, if multiple people come up with the same idea independent of each other, that should be as definite as it is obvious, and obvious cannot be patented), then it can not be patented, and all patents for those ideas are declared invalid.
It's great to see that this idea may finally be getting some traction, as it could have a big impact on fixing many of the most significant problems with today's patent system.

46 Comments | Leave a Comment

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  •  
    identicon
    Anonymous Coward, Feb 8th, 2013 @ 12:53pm

    It's great to see that this idea may finally be getting some traction, as it could have a big impact on fixing many of the most significant problems with today's patent system.

    This idea has been around for a long time. It's cute how excited you get about it.

     

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    •  
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      John Fenderson (profile), Feb 8th, 2013 @ 1:01pm

      Re:

      I am excited about the chance that it will gain traction. The idea has been around for a long time, but it may as well have never existed in the software patent world. As that's my industry, I am more directly affected by the poor quality of software patents than other types, so it's more of a concern to me.

      If this idea was actually applied to software patents, it would mitigate most of the things about software patents that are doing the most damage. It would also immediately invalidate the majority of software patents.

      That's exciting.

       

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      JMT (profile), Feb 8th, 2013 @ 2:54pm

      Re:

      "This idea has been around for a long time."

      No kidding, it's been discussed at TD many, many times. Any publicity it can get is a good thing.

      "It's cute how excited you get about it."

      It's cute that you think your condescending attitude is amusing to anyone other than yourself.

       

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    •  
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      Jesse (profile), Feb 9th, 2013 @ 8:09am

      Re:

      It's exciting to see it gain more traction.

      Anyways, the beauty of it is that arguing against this idea is arguing in favour of obvious patents OR if the other side says that it's totally normal for companies to come up with the same idea but they shouldn't be punished for it then there you have an argument at least for an independent invention defense.

      Of course lobbying trumps logic everyday, but it's nice to logic dream.

       

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  •  
    identicon
    Anonymous Coward, Feb 8th, 2013 @ 12:59pm

    I agree that multiple independent inventions could be a sign of obvious, but, just like any other evidence for or against obviousness, it should not be an independently dispositive factor.

    I mean, it's possible that, out of 7 billion people, there are 2 geniuses who come up with the same brilliant invention within a couple months of each other.

     

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      John Fenderson (profile), Feb 8th, 2013 @ 1:04pm

      Re:

      Yes, you're right, there is a chance. A vanishingly tiny chance, but it's nonzero. So independent invention shouldn't be the sole determining factor, but it should carry a whole lot of weight.

       

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        Anonymous Coward, Feb 8th, 2013 @ 2:15pm

        Re: Re:

        I'm not sure why you think such a chance is "vanishingly tiny," unless you have a very broad definition of obviousness.

        Anyway, the weight given to evidence in any case would probably vary.

         

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          John Fenderson (profile), Feb 8th, 2013 @ 2:59pm

          Re: Re: Re:

          Well, for starters, there aren't 7 billion people in the US.

           

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            Anonymous Coward, Feb 8th, 2013 @ 3:25pm

            Re: Re: Re: Re:

            Nor are there 7 billion people in my living room. But that's not really relevant either.

             

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              Anonymous Coward, Feb 8th, 2013 @ 4:03pm

              Re: Re: Re: Re: Re:

              I am confused. You think that a single patent covers several countries? What heresy! In Europe it takes 30 applications in at least 6 languages to get a patent across EU and it costs about 5000€. Then you can start adding the costs and work of getting it through fundamentally different systems like USA, China and Japan. I think you underestimate how different patents work in different parts of the world!

               

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                Anonymous Coward, Feb 12th, 2013 @ 5:04pm

                Re: Re: Re: Re: Re: Re:

                "I am confused. You think that a single patent covers several countries? "

                No, I think foreign prior art can invalidate a U.S. patent.

                I think maybe you overestimate the importance of non-U.S. patent systems in a discussion of how foreign prior art might invalidate a U.S. patent.

                 

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        •  
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          Anonymous Coward, Feb 8th, 2013 @ 9:58pm

          Re: Re: Re:

          Simple facts.

          The number of geniuses at any given time was never above 0% of the population.

          Further, if anybody can handle a bad decision or an unfair decision this would be a genius, which by definition is a person that can solve difficult problems with easy.

          Those are not the type of people who need "protection" for their inventions, they can and often prove without any help that they can be in any market no matter what the condition are in that market.

           

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      Richard (profile), Feb 8th, 2013 @ 1:44pm

      Re:

      it's possible that, out of 7 billion people, there are 2 geniuses who come up with the same brilliant invention within a couple months of each other.

      But surely both geniuses should get a share ...

       

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        Anonymous Coward, Feb 8th, 2013 @ 2:15pm

        Re: Re:

        Why?

         

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          Anonymous Coward, Feb 8th, 2013 @ 3:29pm

          Re: Re: Re:

          Why should one get a share but not the other? They both put in the work and I would posit that it becomes more or less chance that one files before the other.

           

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            Anonymous Coward, Feb 8th, 2013 @ 3:53pm

            Re: Re: Re: Re:

            Because once one discloses to the public via patent filing (and prosecution to publication), the benefit sought by the patent system has been achieved.

            I don't pay Dodge, Ford, and Chrysler for making good cars after I've already paid for a Buick.

             

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              Anonymous Coward, Feb 8th, 2013 @ 4:17pm

              Re: Re: Re: Re: Re:

              First to file... European by any chance? If both have been stupid enough not to publish about their invention, patents are a pretty cutthroat world. I suppose Tesla, Manzetti, Barran et al. would agree, but I am not sure they would support it.

               

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                Anonymous Coward, Feb 12th, 2013 @ 5:07pm

                Re: Re: Re: Re: Re: Re:

                My understanding of European patents is that if you publish before filing you are out of luck.

                Why would it be stupid not to publish in that scenario?

                 

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              JEDIDIAH, Feb 9th, 2013 @ 2:07pm

              The myth versus the reality.

              ...except the nature of the current patent system means that there is ZERO public benefit from a single patent filing. They are far too numerous, they are typically USELESS as actual documentation, and the structure of penalties actively discourage patent searches.

              As a means of improving the state of the art, they're pretty abysmal.

               

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              •  
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                Anonymous Coward, Feb 12th, 2013 @ 5:06pm

                Re: The myth versus the reality.

                That is irrelevant to the proposition of granting both inventors a share of the patent, no?

                I mean, if you think there is no benefit to the patent system, that doesn't mean you give two people a patent interest.

                 

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    •  
      identicon
      Anonymous Coward, Feb 8th, 2013 @ 2:00pm

      Re:

      And rare thus making the point mute since the negatively affected will be in effect of no consequence to the market.

      The other choice is to allow abuse to run rampant which will affect a lot more than just 2 geniuses.

      Like people say in sports, they would have to take one for the team.

       

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        Anonymous Coward, Feb 8th, 2013 @ 2:16pm

        Re: Re:

        I had a hard time following that. Could you rephrase?

         

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          Anonymous Coward, Feb 8th, 2013 @ 10:04pm

          Re: Re: Re:

          The number of negatively affected is lesser than the benefits of countering system abuse.

          Geniuses are rare and so will be their problems, they also are smart people capable of solving complex problems thus making the legal system an option not the only means by which they can solve any troubles.

          All roads leads to Rome, not all roads are legal roads.

           

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            Anonymous Coward, Feb 12th, 2013 @ 5:09pm

            Re: Re: Re: Re:

            I have to say, that was only marginally clearer (to me, anyway).

            That said, I'm not sure why an inflexible rule (any independent invention is always an immediate obviousness finding) is better at curbing abuses than a flexible rule that can account for the actual facts of a particular situation.

             

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      E. Zachary Knight (profile), Feb 8th, 2013 @ 2:26pm

      Re:

      The problem is not that 2 people in 7billion would come up with the same solution to the same problem. The problem is that 2 people in the same narrow expertise would come up with the same solution to the same problem. The fewer the number of people in a field and the more specialized the field, the more likely it is that individuals would independently come up with the same solution to the same problem.

      There is no other way to consider it. That is the purpose of the obviousness requirement. It is not to measure whether a moron in a hurry would come up with the same idea, it is to measure if a software engineer would be able to write the same "software" a patent would cover or any other field of expertise..

       

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        Anonymous Coward, Feb 8th, 2013 @ 3:28pm

        Re: Re:

        Wait...you're saying the smaller the pool of potential inventors, the more likely that independent invention will occur?

        So if there are only 2 people working on a problem, it's nearly guaranteed they'll both solve the problem the same way!

        I think there is, in fact, another way to consider it.

         

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          Donglebert the Unintelligible, Feb 11th, 2013 @ 3:03am

          Re: Re: Re:

          If only 2 people, both knowledgeable in their field, are working on solving exactly the same problem - both using the same tools to derive a solution (ie language used, existing libraries, best practice methodologies, etc.) - than the likelihood of them coming up with very similar solutions would be very high.

          Patents that are so broad as to not actually define a specific solution make matters even worse. Were both people to patent their independent solutions in the broadest language possible, the likelihood of those patents overlapping would be so high to be a certainty.

           

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          Anonymous Coward, Feb 11th, 2013 @ 9:20am

          Re: Re: Re:

          He's saying the smaller the pool of potential inventors the less likely it is that independent invention will occur over something that's not obvious.

           

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        Donglebert the Needlessly Obtuse, Feb 11th, 2013 @ 2:55am

        Re: Re:

        A key part of it is identifying the problem and so the demand for a solution. The presumption that some people seem to have is that such problems are targeted in isolation rather than as part of a workflow to develop an overall product.

        Solutions are written to meet a requirement, and that requirement is defined by the problem(s). If someone can demonstrate the workflow that posed the problem and the outputs required to identify the problem as solved, then the actual solution itself could be considered obvious.

         

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      Anonymous Coward, Feb 11th, 2013 @ 9:19am

      Re:

      Aren't you ignoring the standard for obviousness in your "7 billion people" vs "2 geniuses" analysis? It's supposed to be about obviousness given "an ordinary skill in the art." So now we've paired down the "7 billion" figure to something more like a million or so (4 orders of magnitude smaller).

       

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      Bengie, Feb 12th, 2013 @ 10:11am

      Re:

      The telescope was independently developed around the world(Europe) many centuries ago. Back when they didn't have ways of communicating effectively over longs distances.

      I'm not talking about 2 people coming up with the same idea out of a population in the lowly millions, but something like 7 different people within months of each other.

      Just because something is new and unique does not make it non-obvious to someone skilled in the art.

       

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  •  
    identicon
    Anonymous Coward, Feb 8th, 2013 @ 1:00pm

    One problem...

    It's not "Cold Room" it's CLEAN ROOM DESIGN.

     

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      Anonymous Coward, Feb 8th, 2013 @ 1:18pm

      Re: One problem...

      And actually mentioning clean room design doesn't really help the argument as it is a technique specifically used to get around patent infringement by having one group of people study an invention and write specifications that another who hasn't seen the original can use to "invent" a copy. This isn't independent invention. This a purposeful manipulation of process to create a situation where the "designers" of a product have not seen the original that they are copying. The architect of the process has. So it's hardly an independently coming up with the idea.

      Now if you want to argue that the fact that an invention can be successfully copied via clean room design should ALSO be an argument for obviousness in that the invention isn't sufficiently complex enough warrant a patent, ok sure but that isn't the same thing as independent invention.

       

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        Richard (profile), Feb 8th, 2013 @ 1:42pm

        Re: Re: One problem...

        Clean rooms are usually used to avoid copyright lawsuits - they don't (under current rules) protect you from patent law.

         

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          identicon
          Anonymous Coward, Feb 8th, 2013 @ 1:55pm

          Re: Re: Re: One problem...

          At the time he's referring to though computer programming was only covered by copyright. There were no software patents which is why the technique was able to be used then.

           

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          Anonymous Coward, Feb 8th, 2013 @ 1:57pm

          Re: Re: Re: One problem...

          You are right though. Clean room doesn't help with patent infringement.

           

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  •  
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    Bryce, Feb 8th, 2013 @ 1:24pm

    AMD Cloning in the 80s

    AMD had a license from Intel to produce CPUs in the 80s. They weren't clones -- they were genuine "Intel" processors manufactured by AMD.

     

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      identicon
      Anonymous Coward, Feb 8th, 2013 @ 1:34pm

      Re: AMD Cloning in the 80s

      He's actually referring to something else but mixing it up a bit. It wasn't AMD cloning Intel. It was Compaq (followed by every other PC manufacturer that came along afterwards) that successfully reverse engineered IBM's ROM BIOS chip via clean room design which allowed the PC clone market to explode.

       

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  •  
    identicon
    Anonymous Coward, Feb 8th, 2013 @ 3:58pm

    If it's obvious enough for a bunch of patent troll lawyers or non-engineers, non experts in the relevant field to come up with, it's obvious enough not to deserve a patent.

     

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      identicon
      Anonymous Coward, Feb 8th, 2013 @ 4:03pm

      Re:

      Yes, clearly only someone with the right pedigree can invent something nonobvious.

       

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        identicon
        Anonymous Coward, Feb 8th, 2013 @ 10:15pm

        Re: Re:

        Not really just it will have to pass the right pedigree first, which is a reasonable barrier to have to go through, since you don't want people without the right pedigree patenting the law, law fillings, court systems.

        People patting web-buttons is like people patenting written language and trying to go after anyone who use it, doesn't matter if you use a pen, a pencil, a typewritter or a computer, if it used written language you are infringing, that is not only silly is dangerous.

        How can anyone patent "transactions"?

        The patent system was silly, but never this silly.

         

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        JEDIDIAH, Feb 9th, 2013 @ 2:18pm

        The nature of invention...

        You're trying to be sarcastic but you are probably onto something. I know people that have patents. Some of them aren't terribly inventive. They are competent but that just means they are able to effectively able to apply the state of the art.

        That doesn't make them inventors. It makes them engineers.

        The fact that they know how to do their own job should not prevent everyone else from doing the same.

        The ability to come up with something that genuinely moves the state of the art forward is typically what you expect of PhD candidates rather than mediocre schmucks working out in industry.

        You are probably not a precious and unique snowflake, nor I.

         

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        identicon
        Anonymous Coward, Feb 11th, 2013 @ 9:25am

        Re: Re:

        It's cute how you think that's absurd when it really is the standard:

        28.3 The subject-matter defined by a claim in an application for a patent in Canada must be subject-matter that would not have been obvious on the claim date to a person skilled in the art or science to which it pertains...

        - Patent Act (R.S.C., 1985, c. P-4)

         

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