Missing The Point In The Debate Over Patents

from the fair-and-balanced dept

Over the past few years, the debate over patent reform has gotten louder, as there have been more and more cases demonstrating that the existing patent system is fundamentally broken. News.com has a "special report" up today that tries to look at the issue of patent holding companies who do nothing but try to license patents. In trying to present a "balanced" view, though, the article completely misses the point. It quotes the various supporters of patent holding companies (often referred to as "patent trolls") talking about how they're helping protect "the little guy" from big international companies that otherwise would profit off of their intellectual property. It sounds nice, but that's not what the problem really is all about. The patent system isn't designed to "protect the little guy." It's designed to promote innovation -- and that's what it needs to be judged on. Patents may make some sense in cases where a concept is truly unique and non-obvious -- but if others are coming up with the idea independently and are better able to bring it to market, then the patent holder is holding back innovation. The other companies didn't "steal" the idea, because they came up with it independently (suggesting that it wasn't unique enough to deserve patent protection anyway). And, as we've pointed out in the past, it's not the "invention" that's really that important, but the ability to successfully bring it to market that helps the economy grow. Unfortunately, the patent system is more designed to protect that "invention," but to impede the real innovations that help make a product successful in the market place. All of the points these patent holding firms are making would be a lot more valid if the patents they were holding onto and forcing everyone to license actually were unique, non-obvious ideas that others were really building off of. Instead, they're taking ideas that plenty of others are coming up with independently and making the real innovation more expensive.

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  1. identicon
    John, 20 Jul 2005 @ 8:32pm

    Re: No Subject Given

    Hey Mike,

    I just want to elaborate some more on a few issues...

    1) Basically, I feel the real debate with the patent system lies in whether or not they are properly determining if an idea is an "obvious" idea (to someone in the same field of the invention, based on the current knowledge in that field at the time of the invention).

    For example, everyone knows that crazy glue sticks to your skin like there's no tomorrow. But does it have an "obvious" use to a crime scene detective? Initially, the answer was no. But someone discovered that if you vaporize crazy glue (by heating it up in a chamber), it will stick to the skin fragments of a finger print and make it more pronounced. So hard to see fingerprints then become much easier to see and capture.

    So, in your view, does the guy who figured this out deserve a patent on this idea? There was already a method to enhance fingerprints (using the fine powder and brush), and everyone already knew that crazy glue loves to stick to skin. So, could someone claim that this is an obvious solution, given the knowledge of these two facts? I say NO, and here's why I think this is NOT an "obvious" idea, and thus is patentable...

    If, years ago (before this technique was known), I walked up to a crime scene detective who was having trouble getting a fingerprint, and even gave him a stick of crazy glue and said "this will help you". I feel he would still have no clue how to use the crazy glue to enhance the fingerprint. Thus, heating the crazy clue in a chamber with the fingerprint would NOT have been an "obvious" thought to him or any other CS detective for that matter. Thus, it should be patentable, even though there is a very good chance that someone else would have eventually and *independently* made this discovery.

    I think a good test to determine if an idea is obvious or not is to present the problem (that the invention solves) to someone that is knowledgeable in the field relating to the problem (without showing them the patent's solution), and ask them to come up with various ideas to solve the problem that the invention solves. If none of his ideas comes close the the invention, then wouldn't that be a good indication that it's not an "obvious" idea?

    2) This topic has a few aspects:

    a) In my first post, I tried to convey that I feel virtually any idea will *eventually* be thought of *independently* by someone else in the same "field of expertise", given enough time and a need/benefit for the idea. So, considering this, wouldn't it be kinda impossible for anyone to ever come up with an idea that no one will *ever* think of independently, given enough time?

    So, would you then agree that it's not very practical to decide if an idea is patentable on this basis, because every idea will eventually be *independently* thought up by someone else given enough time, so why bother patenting any idea?

    b) Being that issued patents, and even patent applications (since 2000) are easily viewable on the internet, how would you ever be able to positively prove that you created an idea *independently* of another inventor? Who's to say that you didn't just take a peek at the other inventor's application, and then make a slight modification to it so it wouldn't be such a blatant copy of the first patent? You can't. The only reasonable way to determine who really thought up an idea is to base it on who filed for the patent first. Every inventor has the responsibility to be diligent in pursuing a patent for their invention if they wish to preserve their rights to it. It's a simple rule....You snooze, you loose. If you don't agree that the first person to think of an invention deserves to benefit financially on that invention, then you don't believe in the only reason why there is a patent system in the first place.

    Also, you can't actually patent an idea, you can only patent how that idea is implemented. So, if someone truly did *independently* think of an invention that solves the same problem (or provides the same benefit) as another invention, then there is still a possibility that the second inventor can also get a patent for their invention as well, as long as the implementation is different and not an obvious change to the first patent.

    3) I am a little confused about your comment of "it may be looked upon more like "hiring" whoever came up with the idea to help a different company bring it to market". For example, lets say I sell my patent to a "holding company" so I will get one lump sum for my invention instead of dealing with a bunch of licensees for many years. Wouldn't these "patent holding companies" then simply be companies that other companies need to "hire" to produce the idea? Just like recording artists sign a contract with a label company, then the label company sells rights of the songs to ITunes, who then sells the songs to end-users.

    4) When you say "If you can't, let someone else do it.", I agree with this statement as long as you are also saying that I am entitled to receiving licensing fees from the "other" company that takes my idea to the market. However, if you are saying that if I don't have the proper resources to bring my invention to market, that I should forfeit my rights for the idea to another company, then I totally disagree. In my previous post, I just exaggerated when I used the phrase "big corporations" to help make my point clearer. The spirit of my original statement was that even if I were a "more nimble company", there are still a ton of issues involved to bringing an idea to the market. It would be ridiculous to expect a small independent inventor to be an expert in every aspect required to properly bring an invention to market.

    For example, lets say I own a car repair center, and I discovered that if a certain part of an engine is shaped in a different way, it will increase the fuel efficiency by 30%. So, do I have the bank account to start manufacturing engines with my new design? Of course not. But, going by your statement, it sounds like you are saying that if I don't have the money to produce the engines, I should just give away my invention to some other company that can, without any financial gain. If that's what you are saying, then that's just crazy because it would kill innovation from independent inventors because what incentive would they have to come up with new ideas if they have to then give it away to someone else without any gain? Now that wouldn't be fair! And it may not be financial reasons why I can't "take it to market". For example...lets say I thought up some really cool lyrics for a new song, but I can't sing for beans...are you saying that since I don't have the talent to sing, I have to give away all my lyrics to someone else who can turn it into a song? Of course not. But, if agree that I would be entitled to license fees for my invention from the company that brings it to market, then why would you call this extortion or be "unnecessarily harmful"?

    In closing, I just want to say that I have been reading your techdirt posts for quite some time, and I really enjoy them. However, I have to be honest.....every time I read your comments related to patents, I consistently felt like your views were anti-independent inventor, and more like "only companies who have the money to bring an idea to market should be granted a patent". I feel this isn't so, because for innovation to flourish, we independent inventors should also have an incentive to keep thinking up ideas. And even though we may not have the money and/or expertise to fully bring our idea to market, we should at least be allowed to gain from our ideas by licensing them to a companies that can bring it to market.

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