Shouldn't We See It As A Problem When Patents Are The Product Itself?
from the just-basic-common-sense-here... dept
Forbes has given some space to Alan Minsk, a patent lawyer who was in-house patent counsel for Openwave — a company that we recently noted had decided to become a patent troll after failing in the marketplace — as well as with Intellectual Ventures, perhaps the world’s largest patent troll. In his column, he talks up how simply wonderful it is that companies have realized that patents aren’t just about protecting products, but have become key products themselves. He seems positively gleeful at the idea of writing patents so broad that they cover entirely unrelated industries:
My own approach was to identify potentially patentable innovations (i.e., those that were not clearly unpatentable) that had a well-defined strategic value proposition, and then proceeding to seek patent protection for a broad-based interpretation of the underlying concept of those innovations.
Since many innovations represent a solution to a technical problem, this approach often involved determining other industries (or other situations within the same industry) in which a similar problem arose, and then generalizing the description of the innovation so that it could be used in those other industries or situations. This typically required developing a description of the underlying concept of the innovation in generic functional terms instead of implementation specific terms (a process I termed “functional deconstruction.”)
And, because the strategic value propositions (or use cases) for a patent often changed as a company developed and competed with others, my approach was an iterative one that was re-visited regularly in case a decision that was appropriate at one time was no longer appropriate because of new information. This applied both to patent application filing decisions and to those made during negotiations with the U.S. Patent and Trademark Office as part of the process of obtaining a patent.
In other words, not only did he try to patent things as broadly as possible to cover other industries, he would regularly try to broaden the patent as the market changed, even though the application was already ongoing. The whole thing seems to be bragging about the exact process of how to destroy competition and innovation in a market by locking it up in some vague piece of paper.
If we are to believe that the patent system was designed to “promote the progress” then it needs to be admitted that patents are never an end, but always a means — a means to develop actual products that genuinely represent progress. And yet, that’s not what they’ve been for quite some time, and it’s highlighted by the idea that they should ever be considered primary products in and of themselves. That’s a sign of a totally broken system. It may be one where patent lawyers like Minsk make out nicely, but it shows a failure of the system as a whole — and when that happens we have a system that hinders, rather than aids, innovation.
Filed Under: alan minsk, patent troll, promote the progress
Companies: intellectual ventures, openwave
Comments on “Shouldn't We See It As A Problem When Patents Are The Product Itself?”
And in the end...
the evil, soulless, liability-free, lawless artificial constructs called “corporations” kill and eat each other for more profits.
You can’t afford jack-shit, but hey – your stock portfolio does well.
Until you die, that is.
And then, you’re STILL dead. But corporations survive another day to commit more rape and other mayhem.
The "Working Model" test
If we simply went back to requiring a working model of the object patented–plus a few caveats such as the patent text being a precise description & illustration(s) of the working model and nothing else–future stupid patent-trolling cases would become nigh impossible.
Of course, such a thing might preclude software patents altogether. And, as a code monkey, I see nothing wrong with such a development.
You try so hard Mike, you must spend every night awake trying to find the next marginal argument to try to push on people.
This one isn’t one of your better ones.
Patents are a product, this is true. Well, actually not a product, but rather the end result of work done to develop something new. Packaged on paper, with the rights that come with it, it can become a product that is sold. That is one of the great features of both the patent and copyright systems, that it allows rights to be sold in part of en bloc as the creator or rights owner sees fit.
It’s one of the key parts of the whole process really, because it allows for both licensing and sale. It means that an inventor can use their own patent, plus license it to others, or they can sell it as a whole to someone else and move on to their next good idea.
It’s the basis of the system.
You may want to try harder, because clearly you aren’t understanding the basics.
Re: Re:
Jesus, this place is terrible about “flagging” any dissenting view. God forbid someone see an opposing viewpoint without warning!
Didn’t used to be that way.
Re: Re: Re:
Flagged!
Just kidding.
Flagging only draws more attention to the comment a la Streisand effect.
I always read them.
Re: Re: Re:
Its not so much the dissenting view as it is the insult that starts it out.
Re: Re: Re:
Agreed. I don’t flag posts simply for disagreeing with them.
Anyways, you didn’t address my point earlier. Do you see patent trolling as a problem? If so, do you feel it’s an acceptable unintended consequence of the system as currently constituted?
Re: Re: Re: Re:
I don’t think we were interacting earlier.
I don’t see nonpracticing entities asserting patents (if you are using another definition of patent trolling, let me know) as some sort of inherent problem.
Re: Re: Re:2 Re:
My mistake. Perhaps you should adopt a moniker to allow other’s to distinguish you from the many people posting anonymously.
1. Person One invents something, brings it to market, and becomes wealthy.
2. Person Two subsequently and unbeknownst to Person One acquires a piece of paper from the government that gives them rights to Person One’s profits simply because the government is too busy to examine the paper closely.
3. Person Two sues Person One.
4a. Person Two wins an injunction against Person One, forcing them off the market. Person One pays enormous legal fees and looses profits.
4b. Person Two convinces Person One to settle out of court. Person One pays enormous license fees.
4c. Person One wins in court and Person Two’s patent is invalidated. Person One pays enormous legal fees.
Person One lost money in all circumstances, nothing of value was accomplished in the best outcome, and innovation was hindered in the worst.
You don’t see this as a problem?
Re: Re: Re:3 Re:
So…that’s much different definition of patent trolling.
In your case, Person Two doesn’t not appear to have any legitimate claim to prior invention (or prior anything), and the issuance of the patent is, by definition, some sort of mistake (that’s how I read “simply because the government is too busy to examine the paper closely”).
Also, Person Two somehow obtains an injunction, although that is not something that non-practicing entities can usually get these days.
Re: Re: Re:4 Re:
What I meant by “simply because the government is too busy to examine the paper closely” is that the patent office is granting broad, bogus patents on a regular basis (because they are underfunded, understaffed, and have the wrong incentives in place) and letting the courts sort it out. (At Person One’s [the innovators] expense.) It’s a tax on innovation. Normally you tax things that you want to discourage.
Re: Re: Re:5 Re:
Yeah, I don’t disagree that there are bad patents out there.
It’s harder for me to reach any ultimate conclusion that the current patent system as w hole is more bad than good or that patents for nonpracticing entities are more bad than good.
Enjoy It While It Lasts
How long can this kind of value-leeching, progress-destroying system continue to operate until society kills it with fire?
Re:
Oh come one. Are you suggesting that patents that exist solely for the purpose of extracting money from companies that successfully bring an innovation to market and have nothing whatever to do with actual invention aren’t a problem but just an intended feature of the system?
Forbes...
Forbes has become the AOL of business journalism. It’s empty, vapid, and completely devoid of value.
Re:
And when trolls buy up these patent products, purely so they can sit on them and collect licence (excuse me, I meant extortion) money from those attempting to actually enter the marketplace…
“in-house patent counsel“
He might have been a one-man council, but I doubt it.
Marginal
Spoken like somebody who has never had to interact with a patent in his/her/its life.
A patent is supposed to be “how to build a thing”
A modern patent today is “useless gibberish which vaguely describes a thing”
I know this from personal experience.
Also, I’ll put my money where my mouth is. Find me 5 patents obtained the last year which are accurate (eg: non-vague, not ambiguous, precise) descriptions of “how to build a thing” and I’ve got $100 for you.
Today, Instructables.com carries the spirit of innovation forward, and the patent office holds it back.
/rant
Re: Marginal
Make magazine and Hack-a-day are great as well, and better than Instructables because they aren’t owned by one of the worst companies ever, AutoDesk.
I hate the fact that AutoDesk gets anything out of the DIY market, even by proxy.
I don’t understand why a “product” would be necessary to promote the progress of science and the arts.
If you come up with an invention, and someone else successfully markets that invention as a “product,” is what you’ve done worthless? I think not.
Re: Re:
“is what you’ve done worthless?”
If you use patents to prevent them from marketing an idea than what you have done is worse than worthless.
People can sit around and come up with ideas all day long. You came up with something and someone else came up with the same thing and implemented it. What you did was worthless and what they did had value. Now by preventing others from implementing the ideas through our immoral patent system what you did was not only worthless, it was unethically worse than worthless.
Re: Re: Re:
“If you use patents to prevent them from marketing an idea than what you have done is worse than worthless. “
If you are a nonpracticing entity (i.e., someone who doesn’t sell your own product), then you never want to prevent others from using the idea as an end goal. Rather, you want others to use the idea, and pay you a licensing fee.
Anyway, I still don’t think that making a product is a required for the invention activity itself to be valuable. Plenty of inventors don’t have the resources to bring a product to market, but can obtain investors and/or market their idea to a larger company with the aid of a patent.
I agree that, in hindsight, those cases where an inventor comes up with something, does not bring a product out, and a third party later independently invents and markets the same thing, seem to represent inefficient allocation of resources if the third party is stopped or has to pay the inventor.
Re: Re: Re: Re:
I do not think you understand the basic argument.
As a nonpracticing entity you, by all means want others to use your exact patent. Problem is that if you deliberately go for vague patents like Alan Minsks, your patent will achieve that others simpy cannot see that they are covered by the patent.
For patent trolls there are bound to be someone using something close enough to their patent to make it possible to sue (otherwise the troll is not good enough to enter the market). Most major companies will just settle it by paying you for the overbroad patents since legal costs are high. That is how trolling works.
You need some big company practisioners to harrass before you can settle down your patent trolling business. It is useless to buy the specific patents that nobody has used before and screw the future, since it is uncertain. For patent trolls the worst thing that can happen is if too many companies go to court. That means that they are targeting the wrong practisioners…
Patent trolling is abuse of legal instruments to harrass practisioners with overbroad patents. There is no positive gain for any part of the society except maybe the courts.
BTW Mike, if they do this “functional deconstruction” to the extent which it appears they are doing it then they’re doing nothing other than violating the 112 1st paragraph requirement for a written description. The courts will eventually respond to such a practice if it becomes abused enough.
Re: Re:
The courts will eventually respond to such a practice if it becomes abused enough.
It hasn’t had enough abuse yet?
Marginal
“Also, I’ll put my money where my mouth is. Find me 5 patents obtained the last year which are accurate (eg: non-vague, not ambiguous, precise) descriptions of “how to build a thing” and I’ve got $100 for you.”
That is 100$ I’m glad to claim, what is your email?
Re: Marginal
Be careful. These “challenges” are to identify a patent that serves double duty, both describing and claiming the invention (112) and presenting in detail the full equivalent of a Manufacturing Data Package (bill of materials, dimensions and associated tolerances, necessary manufacturing processes, test procedures, etc., etc.).
In other words, 112, in their view of the world, can only be met by the inclusion of a MDP.
Re: Marginal
Post them. Put up or STFU.
Re: Put Your Money Where Your Mouth Is
Post them publicly. Then we can all laugh, either at you, or at Lobo Santo.
Oh, come on, it is not that bad.
It is like having a promise of payment and turning it into a product.
Then you can get several of these promises of payment together and turn that into a product.
Then you can get several of those bundles together and turn it into a single product.
What could possibly go wrong?
Oh wait…
If we are to believe that the patent system was designed to “promote the progress” then it needs to be admitted that patents are never an end, but always a means — a means to develop actual products that genuinely represent progress. And yet, that’s not what they’ve been for quite some time, and it’s highlighted by the idea that they should ever be considered primary products in and of themselves. That’s a sign of a totally broken system. It may be one where patent lawyers like Minsk make out nicely, but it shows a failure of the system as a whole — and when that happens we have a system that hinders, rather than aids, innovation.
I think that about sums it up.
The patients (the actual making of whatever is innovated) are dying and the sleaze-bag lawyers (posing as doctors) are rifling through the patients’ pockets and filling their own pockets with whatever they can steal from the patients instead of getting them much needed medical attention.
Why do these kind of sleaze-bag lawyers always remind me of vultures picking over the bones of dead skunks?
To quote a famous 16th Century writer “First, we kill all the lawyers …”
Marginal
“A modern patent today is “useless gibberish which vaguely describes a thing””
Like many things in the litigious US system, much of the terminology used in patents is boiled down from various lawsuits, caselaw, and the like, which establishes the type of terms and claims that must be made in order to obtain a patent and have it stick.
A patent isn’t “how to build a thing”, it’s a description of a thing and what makes it unique.
There are plenty of non-vague patents out there. You might want to take back the offer, because plenty of people here will rook you for your $100 repeatedly. Don’t fall for Mike’s bullcrap, the patents that he highlights are a very small number of a very much larger system that actually works well, much to his chagrin.
Re: Marginal
Making patent terminology rely on litigious systems is probably the biggest problem you can have.
Not only do you force certain language in every patent: A side effect is that the terms will get used outside their meaning and you are also forcing a lack of specificity since the basis for standard terminology is the broader application of the terms.
People who know 100 common legal patent-expressions, rearrange the sentences and add 1 or 2 new words and send them in as new patents. Those poeple are absolutely not a positive force for innovation which is the whole concept of patents…
Patents were meant to help people with idea protect them from scavengers before they were followed through with a product. Legal broad standard expressions in patents are eroding the possibility of writing an acceptable patent away from non-specialists. That is an unfortunate development and is killing the possibility of small entrepreneurs taking out patents while protecting large established legal services in bigger companies, which was somewhat the definition of why patents were needed…
Re: Marginal
Post them. Put up or STFU.
Marginal
I don’t give out my email address to anonymous persons on public forums… just a safety policy I have.
However, I’m on Techdirt all the time. Submit it as a story (I’m certain it will be of interest) and I will without doubt see it.
Progress?
Clearly we are making progress in patent trolling. It is a business with huge earnings potential.
Patent trolling clearly is a growth industry!
Re: Progress?
We should get out of agriculture and construction, and get into patent trolling instead!
Doomed to repeat history.
If there are going to be new businesses created from “productizing” patents, we can look into the past to see how well this will turn out. This is little different than when Wall Street “created” new investment products by packaging up other paper investment products, all without any “real” products behind them. At some point there was the realization that everything was a legal fiction, created from smoke and mirrors. That turned out well for everyone didn’t it.
That is exactly what these patents are. Legal fictions that get “created” by an overly permissive patent office. When everyone finally comes to their senses, that these patents don’t actually create anything, the whole system is likely to collapse.
Re: Doomed to repeat history.
Yes, History is Doomed to Repeat Itself !!!
And I replied cause I liked the thread name.
There are a lot of BS Things in this World that did not need to be repeated and could of been stopped had People paid more attention to their History Lessons.
This Century I foresee very bad times coming up and maybe sooner than I really think.
Marginal
If its such a small problem why is it such a large industry?
Re:
That’s clearly what the founders meant when they said that it was to “promote the progress,” they just assumed it was obvious that they were referring to promoting the progress of the incomes of unethical people. It’s good that those unethical people have corrected our understanding of it or else we might not have known that that is indeed what patents are for.
Marginal
Part of the patent process is to provide instructions on recreating the invention. That is completely absent in almost all software patents.
“he would regularly try to broaden the patent as the market changed, even though the application was already ongoing.”
IOW, he didn’t invent anything, he saw what others (the market) was already doing and (literally) stole their ideas by claiming exclusive use on what others were doing (stole as in denied others the use of, which is morally wrong. Copying/infringement is not stealing nor morally wrong).
Marginal
“A patent isn’t “how to build a thing”, it’s a description of a thing and what makes it unique.”
That makes patents completely useless then. According to you, I could describe a hover-car in like this:
“It’s a car that flies a few inches above the ground using anti-gravity and that is propelled forward using ion-plasma engines.”
And that would qualify for a patent* (according to your criteria anyway). That would make patents much more useless than what they are now: a detailed explanation on how to make something. The deal is supposed to be: you tell us how to build it and we give you a monopoly. Anything short of that is just plain theft.
“…a very much larger system that actually works well, much to his chagrin.”
No, it does not. Just ask Nikola Tesla.
Re: Marginal
Since you fail to recognize that what you “describe” utterly fails to satisfy the criteria specified in at least 101 and 112 of our patent laws, it seems quite safe to assume the substantive requirements of patent law are not your strong suit.
Re: Re: Marginal
He was responding to the quote, not making claims about patent laws (or about the contents of various patents)
Re: Re: Marginal
Exactly. The response is something that would not exist as a patent, because it fails the test. Typical come back here, thanks for pointing out their failings.
Re:
I guess eventually means something like limited times …
Marginal
6, Jun 5th, 2012 @ 9:54am
That is 100$ I’m glad to claim, what is your email?
Yeah Id like to see your response as well. Post it why dont you?
c’mon do it. DO IT!!!!
Jerome Lemelson
I just scanned all the above comments and found no mention of Jerome Lemelson and his key invention of the ‘submarine patent’. Basically, this ‘new’ viewpoint on patents is already very old. It’s not even a new business model.
Uh, time to come up to speed folks. . .
cool guy.
So, in other words, this guy is a (yet another) leech on the progress of society. Cool./s Like we need more leeches. Leeches suck.
The real problem
I don’t see anything wrong with “patents as products”. Just like an author may sell the movie rights for his best-selling novel, it’s understandable that patents can have a value all their own, and will be bought, sold, or traded.
The problem (as has already been pointed out several times) is that patent applications no longer have to accurately and specifically describe a concrete execution of an idea in order for a patent to be granted.
IMO: Of course its not a problem that patents are being sold as a product, that is the entire purpose of Intellectual Property. Taking an idea, and calling it property. People have rights to property. Property has value. People can sell property. Its not a problem, its just the way the system was made. The DURATION of these property rights is what you should be talking about, you have a better argument there.
Re: Re:
I agree with you that alienability of the exclusive right is simply an added benefit/incentive, and not any sort of evidence that the system is broken.
I also agree that duration of some forms of intellectual property rights is a problem.
However, I also think that the ability of someone to go back and file patents covering something someone else has already done in the market, claiming an earlier priority date from a broad description, is kind of shady.
Re: Re:
Treating an “idea” as property is a ridiculous concept and fails on multiple levels. An actual physical construct makes sense as property. And even a digital construct makes sense as property in some limited ways. However, claiming exclusive property rights over a thought once it has entered someone else’s brain is nonsensical.
If you have a thought, it’s your alone unless you share it at which point it belongs to the universe. No law nor army can change physics.
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saying something does or does not make sense is not really a good way of convincing someone that something does or does not make sense.
Re: Re: Re: Re:
Did you read my comment? To complicated for you?
The very nature of thought lends itself poorly to the restrictions implied by classification as personal property because once it leaves one’s brain it’s distribution and duplication cannot be practically controlled.
Re: Re: Re:2 Re:
A is ridiculous and fails. B makes sense. Even C makes sense in some way. However, A is nonsensical.
Lots of conclusions/assertions; little explanation.
I don’t think anyone is arguing that nobody should be able to “have” a thought someone else came up with. Rather, it’s making, using, selling, etc. that are legally restricted.
Re:
You can still read the comment very easily, and when there are multiple replies it draws more attention so I see no harm in flagging it.
Re: Re:
It’s funnier than it is harmful, I think.
hmmm
1) Carpet bomb patent
2) Let Market spend the money to figure out what’s good
3) Sue for patent infringement
Patents are not products, nor should they be.
No “Pro Se” here because this is a matter as to which I have had 34 years to consider in great detail, during which time I have observed general practice law firms, commencing about the early to mid-80’s, insinuating themselves into this and closely related fields of law, and newly minted counsel in far too many instances perverting the intent underlying Article 1, Section 8, Clause 8 of the Constitution.
Why the shift? The realization that adding such “practice areas” to their “services” represented a potentially significant and lucrative source of future income, and especially with respect to litigation. Concurrent with their entry the cost of litigation began an inexorable, asymptotic increase to levels never before imagined.
A patent is no more and no less than a piece of paper (with a really nice gold seal and red ribbon I might add) representing certain rights in an underlying invention. If such pieces of paper are now to be viewed as products in and of themselves, then perhaps we should start calling “deeds”, “promissory notes”, “stock certificates”, and the like products as well.
While it is obvious that my views are not shared by some within my profession, I cannot help but believe that much of what is viewed as abusive conduct took root and flourished when “billable hours” became the driving, if not preeminent, force. Another contributing factor was whereas those of us who limited our practices to patents and other closely related areas of law, thus reauiring us to learn the substantive law in great detail, this did not universally carry over to the new entrants in the field.
Please excuse my concluding here, but in using my name I believe discretion is the better form of valor.
more dissembling
You write like a paid puppet of large invention thieves.
?Patent troll?
Call it what you will…patent hoarder, patent troll, non-practicing entity, shell company, etc. It all means one thing: ?we?re using your invention and we?re not going to pay or stop?. This is just dissembling by large infringers and their paid puppets to kill any inventor support system. It is purely about legalizing theft. The fact is, many of the large multinationals who defame inventors in this way themselves make no products in the US or create any American jobs and it is their continued blatant theft which makes it impossible for the true creators to do so.
Prior to eBay v Mercexchange, small entities had a viable chance at commercializing their inventions. If the defendant was found guilty, an injunction was most always issued. Then the inventor small entity could enjoy the exclusive use of his invention in commercializing it. Unfortunately, injunctions are often no longer available to small entity inventors because of the Supreme Court decision so we have no fair chance to compete with much larger entities who are now free to use our inventions. Essentially, large infringers now have your gun and all the bullets. Worse yet, inability to commercialize means those same small entities will not be hiring new employees to roll out their products and services. And now some of those same parties who killed injunctions for small entities and thus blocked their chance at commercializing now complain that small entity inventors are not commercializing. They created the problem and now they want to blame small entities for it. What dissembling! If you don?t like this state of affairs (your unemployment is running out), tell your Congress member. Then maybe we can get some sense back in the patent system with injunctions fully enforceable on all infringers by all inventors, large and small.
Those wishing to help fight big business giveaways should contact us as below and join the fight as we are building a network of inventors and other stakeholders to lobby Congress to restore property rights for all patent owners -large and small.
For the truth about trolls, please see http://truereform.piausa.org/default.html#pt.
The first paragraph:
“My own approach was to identify potentially patentable innovations (i.e., those that were not clearly unpatentable) that had a well-defined strategic value proposition, and then proceeding to seek patent protection for a broad-based interpretation of the underlying concept of those innovations.”
reads like an admission of plagarism, and ground for invalidity in relying on propr publication.
"Progress (of science)" is SOMETHING MEASURABLE BY THE SCIENTIFIC METHOD
“Progress” by itself is a relative term and has no meaning except in the context of a world view. A good example: Germans in WWII exterminated people they labeled as subhuman. The Germans and some Poles, Russians, Frenchmen, Italians, Citizens of the Vatican and yes even some Americans called this extermination “Progress”.
The constitutional establishment of the purpose of the Patent system “To promote the progress of science and useful arts” does use the phrase the “progress of science” fortunately this phrase is quite distinct for it means SOMETHING MEASURABLE BY THE SCIENTIFIC METHOD.