Patents

by Mike Masnick


Filed Under:
innovation, patents

Companies:
oecd



Even The OECD Is Noting How Dreadful Patent Quality Is Negatively Impacting Innovation

from the but-will-we-fix-this? dept

Christian Tremblay points us to news of a new OECD report that agrees that falling patent quality is holding back innovation:
The quality of patent filings has fallen dramatically over the past two decades, claims a report by the Organisation for Economic Co-operation and Development (OECD).­ The rush to protect even minor improvements in products or services is overburdening patent offices, which in turn slows the time to market for true innovations and reduces the potential for breakthrough inventions they claim.
Of course, the real way to fix this problem is to make the bar to get a patent much, much higher. If you do that, you get less bogus patent apps being submitted, and it makes it easier to reject such bogus patents. One easy way to do this would be to use independent invention as a sign of obviousness, and reject patents where multiple parties all came up with the same thing independently. Unfortunately, no one seems to seriously be considering such an option. And so we're stuck with crappy patents and a giant backlog. To date, the only way that the US has seen to get through that backlog is to approve patents faster with less scrutiny than before. Tragically, this has had the exact opposite effect of the intended response. When you approve more bad patents quickly, you only encourage even more bad patent applications.

Reader Comments

Subscribe: RSS

View by: Time | Thread


  • identicon
    Old Man in The Sea, 22 Sep 2011 @ 4:50am

    But, But But

    If you raise the bar, how on earth am I going to protect my idea that you obviously stole and brought to market before I was born.

    reply to this | link to this | view in chronology ]

  • identicon
    abc gum, 22 Sep 2011 @ 4:59am

    The elimination of software and business method patents would be a good starting point in the effort to restore sanity to the patent system.

    reply to this | link to this | view in chronology ]

    • icon
      Hephaestus (profile), 22 Sep 2011 @ 8:27am

      Re:

      "The elimination of software and business method patents would be a good starting point in the effort to restore sanity to the patent system."

      You forgot genetics, and genetics testing.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Sep 2011 @ 5:47am

    Yes, but...

    What would we do will all of those lawyers coming out of law school?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Sep 2011 @ 6:26am

    The biggest problem is that when people are growing up their parents tell them that they could be 'a doctor, or a lawyer!' Being a doctor is a lofty goal and something to aspire to. Being a lawyer is something to be made fun of.

    reply to this | link to this | view in chronology ]

    • icon
      Richard (profile), 22 Sep 2011 @ 6:53am

      Re:

      Being a doctor is a lofty goal and something to aspire to. Being a lawyer is something to be made fun of.

      It rather depends what kind of a lawyer you are going to be.

      There are many lawyers around the world that I have huge respect for.

      The problem is not lawyers per se - it is laws created by lobbyists that provide easy money for unscrupulous lawyers.

      reply to this | link to this | view in chronology ]

  • icon
    DannyB (profile), 22 Sep 2011 @ 6:29am

    Another proposed fix

    Make it expensive to file a patent application that is rejected and cheap to file a patent application that is approved.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Sep 2011 @ 6:36am

    Indepentant invention as a legal idea just will never fly. It would do nothing but encourage industrial espionage, or the hiring of people away from a company in order to get their secrets, so that you can quickly throw together the same thing they are working on and block the patent process.

    Trying to prove the true independent nature of invention would be a legal nightmare, one that could lead to discovery on every staff member (and all of their families) for each group involved, plus anyone they may have come into contact with in the time frame of "invention".

    Sorry Mike, but it is a truly horrible idea.

    reply to this | link to this | view in chronology ]

    • icon
      Richard (profile), 22 Sep 2011 @ 7:01am

      Re:

      it is a truly horrible idea.

      Until you compare the alternative that we have now. Under the present system innovation is nothing and filling in forms is everything.

      The fact is that industrial espionage is far more managable than patent litigation. Consider for example Formula One racing where there are no patents and so the incentives for espionage are high. It happens a bit - but when it happens significantly it is detected and punished - with considera far less hassle than happens with patents in other areas.

      In fact Formula 1 provides a good test tube for how innovation could go in a world without patents - and it certainly has a huge amount of innovation!

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 22 Sep 2011 @ 7:38am

        Re: Re:

        Using F1 as an example is horrible. The level of espionage is insane, example Stepneygate:

        http://www.grandprix.com/ns/ns19473.html

        That is literally the whole design and all the developments sold from one team to another. The amount of hassle involved in this one, and the amount of time required to clear it, and the number of people who lost their jobs and the money lost overall is insane.

        Every year they pay more and more for staff to lead them away from another team, just to get access to the "secrets".

        More importantly, F1 is a sport, not a business. They don't expect "protections", they don't make investments in consequence of them. Since it is all done on the back of sponsorship money, there isn't any great incentive.

        Further, F1 is a "short term prize" mentality system. They are often spending millions to shaved a 1/10 of a second a lap (or a 0.0007% improvement), which is an incredible waste of money. They are doing it to win the next race, not worried about long term implications. The negative net result is that teams who have no chance at the current championship often start work on their next car in the middle of the previous year, wasting even more money.

        You don't want to imagine, example, how much money each team has wasted this year alone on the idea of a blown defuser (which uses an insanely complex combination of exhaust outlet placement, exhaust gases, engine pumping of excess air, re-heating of exhaust gases, and the like) all for about 1/2 a second a lap. More so the monies spent are even more insane when it is considered that these systems will be banned entirely for next season.

        F1 proves that a world without patents would be insanely expensive, would be focused on such short term goals that large scale development only happens when mandated by mass rule changes.

        An amusing concept, but one that absolutely does not transfer into real life. The rewards in the market place would not match up to the risks and costs involved.

        reply to this | link to this | view in chronology ]

        • icon
          Richard (profile), 22 Sep 2011 @ 8:16am

          Re: Re: Re:

          Actually I gave the example precisely because the sport/business innovates and thrives in spite of the level of espionage etc.

          F1 proves that a world without patents would be insanely expensive, would be focused on such short term goals that large scale development only happens when mandated by mass rule changes.

          Actually if you look at the history right back to when the sport started in the 1950's you will see huge major innovation NOT at all driven by rule changes.

          Eg Rear engines, monocoque chassis, engine as a structural component, wings, ground effect, active suspension, turbocharging, use of composite materials, telemetry, paddle gearchange - not to mention all the thousands of detail innovations required to make it all work.

          F1 proves that a world without patents would be insanely expensive, would be focused on such short term goals that large scale development only happens when mandated by mass rule changes.

          No it doesn't - it proves that a world without patents could still have huge innovation. The things you complain about are there for reasons other than the lack of patents.

          Formula one is a hotbed of innovation not otherwise seen in peacetime - (and patents took a back seat in both world wars too)

          Try imagining what formula one would be like with patents and you will realise how wrong you are.

          reply to this | link to this | view in chronology ]

        • icon
          Atkray (profile), 22 Sep 2011 @ 8:23am

          Re: Re: Re:

          More importantly, F1 is a sport, not a business. They don't expect "protections", they don't make investments in consequence of them. Since it is all done on the back of sponsorship money, there isn't any great incentive.

          So because they receive money from sponsorships ie: advertising they are not a business?

          I'm sorry but I don't get that, could you please explain it with small words so I can try to understand how you arrived there.

          Then you go on to state:

          They are often spending millions to shaved a 1/10 of a second a lap (or a 0.0007% improvement), which is an incredible waste of money.

          Which indicates the nature of the business is so competitive that spending millions for a tiny incremental increase is considered a sound investment by those within the industry.

          I'm think I'm going with Richard on this one, looks to me like you have clearly demonstrated exactly why F1 is a perfect example of why

          patents are pointless™

          Thanks for helping to clear the air.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 22 Sep 2011 @ 10:46am

            Re: Re: Re: Re:

            F1 teams are not a business in charge of selling productions, they are in the business of selling ad space. Short term results are often the best way to obtain sponsorships, nothing more.

            All I can say is if you guys think F1 is a great example of what happens without patents, I would hate to live in your business world. It would truly suck (ask the HRT team in F1 how it feels).

            reply to this | link to this | view in chronology ]

            • icon
              Jeffrey Nonken (profile), 22 Sep 2011 @ 3:26pm

              Re: Re: Re: Re: Re:

              I think you're hyper-focused on one aspect of F1 and are trying to imply that it is the inevitable result of the absence of patents.

              Please note that I'm not necessarily saying that you're wrong. I'm just questioning your logic. You seem to be working backwards from "F1 has some really bad characteristics" to "F1 has no patents" and then taking a leap to "therefore absence of patents always leads to these bad characteristics." Is it possible that there are other aspects of Formula 1 racing that might contribute?

              reply to this | link to this | view in chronology ]

            • icon
              Richard (profile), 22 Sep 2011 @ 4:09pm

              Re: Re: Re: Re: Re:

              All I can say is if you guys think F1 is a great example of what happens without patents,

              The precise point is that the lack of patents has not hindered innovation - if anything it has encouraged it. The fact that other aspects of F1 may not appeal to you is irrelevant.

              (Those other factors seem to be common to just about any high value, highly competitive business anyway)

              You may think it sucks being HRT - but at least they are still in business - unlike many who have been (quite unjustifiably) put out of business by patent lawsuits.

              reply to this | link to this | view in chronology ]

    • icon
      OldMugwump (profile), 22 Sep 2011 @ 7:43am

      Re: Independant invention

      it is a truly horrible idea.

      There's a better way to measure obviousness.

      Look at the period of time from when an innovation becomes useful until it's "invented". If the period is short, it's obvious.

      I'd say 5 years or so is a good period, but that's debatable.

      A couple of examples:

      Xerography. Useful anytime since the invention of writing on paper. Invented in the 1950s. Not obvious.

      Huffman coding. Useful since the invention of telegraphy (1860s). Invented 1950s. Not obvious.

      Backing store for video display terminals. Useful since the invention of video display terminals (1950s). Invented 1950s. Obvious.

      Streaming audio on the Internet. Useful since the deployment of broadband Internet. Invented 10 minutes later. Obvious.

      The key idea is that most "bad" patents are for things with there is no prior art, because the _field_ is new, but the invention is obvious. The "inventor" is simply the first person to solve a NEW problem in the obvious way and file - the same way that any competent person would have solved the same problem.

      reply to this | link to this | view in chronology ]

      • icon
        Atkray (profile), 22 Sep 2011 @ 8:25am

        Re: Re: Independant invention

        Been spending too much time on facebook lately I kept looking for the "Like" button on this.

        reply to this | link to this | view in chronology ]

      • icon
        Richard (profile), 22 Sep 2011 @ 10:36am

        Re: Re: Independant invention

        I'd take issue with you on a few of these - and to some extent on the principle. There is another factor in play here - the availability of an enabling technology.

        Take Huffman coding for example - It is obvious - it's just that without a computer (i.e. before 1950's) implementation is not practical. Pre-computer you had to use a different coding mechnism - more human friendly - which nonetheless encompasses the same basic principle as Huffman coding (using the shortest codes for the most common patterns).

        Where similar situations apply - as in text messaging - people resort to similar solutions even though Huffman coding is well known and available

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 22 Sep 2011 @ 12:16pm

      Re:

      Even with the current system, companies can just as easily try to spy on other companies and acquire their patents before they do. Independent invention does nothing to make that alleged problem any worse (to the extent that it would even be a problem).

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 22 Sep 2011 @ 12:34pm

        Re: Re:

        Besides, we already have trade secret laws that protect against your alleged espionage problem.

        Under current law, two people can file for a patent on similar ideas and claim that they both independently came up with the idea. Or they can argue over who came up with it first or over who copied whom. These sorts of claims are just as difficult, if not more difficult, to accurately determine as independent invention.

        But what's not fair is for one party to get an exclusive patent on something that someone else independently invented. Or to get a patent on something that someone else came up with first, just because some patent troll got their application to the patent office first.

        But the current 'solution' of giving a patent to only one party when two parties independently came up with a similar idea is a worse solution than trying to determine if something truly is a case of independent invention. That's what due process is for, due process exists exactly to make these sorts of determinations. Is this a case of independent invention or is it not? If so, lets void the patent, if not lets further consider it. Is due process always perfect? No, of course not. It has its shortcomings. But it's much better than the 'solution' that you want, the 'solution' that we have now, which is to simply make hasty, one sided, decisions with no due process whatsoever. To simply assume that there is no independent invention and to risk potentially granting someone a wrongful patent at the expense of an independent inventor. What we have now is just as subject to espionage and corruption as an independent invention exemption would be, if not moreso.

        To take away an independent inventors right to implement his/her independent invention just because someone else got to the patent office first is far more unjust than to deny someone a patent because they got their idea 'stolen' (especially since no one is even entitled to a government established monopoly privilege to begin with and it is everyone's natural right to copy as they please and there is nothing wrong with copying).

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 22 Sep 2011 @ 12:48pm

          Re: Re: Re:

          To deny an independent inventor the due process necessary to defend his independent invention is not a solution to your alleged espionage problem. An independent invention act would give an independent inventor that due process.

          Claiming that allowing independent inventors the due process to defend their inventions could potentially encourage espionage is similar to claiming that giving any defendant a right to defend their case could potentially cause guilty defendants to go free (or it could cause some other problem). Simply denying them due process and assuming their guilt is not a solution. Due process exists for a reason.

          reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Sep 2011 @ 7:02am

    More applications have of late moved on to issue only because more resources have been brought to bear to facilitate their examination.

    You are simply wrong to say that this is due to less scrutiny being given to applications.

    Of course, the process of examining applications would be facilitated even more if Congress would stop taking money away from the USPTO so that it can spend it on other things. The USPTO was set up many years ago to be self-supporting, with the source of funding being fees collected from applicants. Instead of leaving the funds with the USPTO so that they can be carried over to subsequent years, they are methodically stripped away. This is why "fee diversion" has been such a major issue for so many years.

    reply to this | link to this | view in chronology ]

    • icon
      Richard (profile), 22 Sep 2011 @ 8:19am

      Re:

      You are simply wrong to say that this is due to less scrutiny being given to applications.

      Well there goes the USPTO's excuse then...

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 22 Sep 2011 @ 11:21am

        Re: Re:

        I see. The USPTO should simply start rejecting applications without having any evidence in hand to do so.

        Perhaps this approach should be carried over to all other administrative agencies and the courts. It would sure save a lot of time.

        reply to this | link to this | view in chronology ]

        • icon
          Richard (profile), 22 Sep 2011 @ 4:13pm

          Re: Re: Re:

          You don't get it do you? The fact is that the USPTO has approved a lot of poor patents lately - and if this isn't because they are doing a rush job then they just can't be very good at it.

          reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Sep 2011 @ 5:32pm

    If patent applications are passing to issue that disclose and claim non-novel, non-new, and completely obvious inventions, then you might have a point. Problem is, it is easy to say something should never have issued, and quite another matter to demonstrate with some particularity why.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Sep 2011 @ 6:41pm

    Perfectly Simple Fix

    The fact that independent invention goes on all the time is not just an indication that most inventions are obvious, it indicates that the patent system monopoly privilege is unnecessary. Since independent invention can, nearly always, be relied upon to reinvent any invention which has been kept secret (for whatever reason), then it is useless to offer inventors a commercial monopoly on their invention in return for disclosure. The disclosure (if any) provides no economic benefit, since somebody else would reinvent, had the disclosure not happened. Meanwhile, the cost to the US economy of the commercial monopolies being handed out, are large ($80 billion per year in lost company value is only a small part of it) and getting larger rapidly.

    There is a perfectly simple fix. Take away the monopolies. Change the law to get rid of the offense of patent infringement. That eliminates the motive for patent trolling. The patent system goes from being a nasty system inhabited by crooks engaged in vast extortion, to being a friendly system for sharing knowledge, inhabited by decent people giving away ideas for the benefit of society. The existence of open source software shows that many people will willingly participate.

    Greedy inventors, who refuse to divulge their inventions without someone paying them, have a variety of means to make money out of their inventions. Offering them an extortion racket, in addition to the other means, is neither necessary nor desirable. In the vast majority of cases, the greedy inventors will simply get bypassed by other inventors. The greedy inventors will get bitter about that and may be expected to complain. That is tough luck for them and a benefit to society.

    reply to this | link to this | view in chronology ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Use markdown for basic formatting. HTML is no longer supported.
  Save me a cookie
Follow Techdirt
Insider Shop - Show Your Support!

Advertisement
Report this ad  |  Hide Techdirt ads
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Advertisement
Report this ad  |  Hide Techdirt ads
Recent Stories
Advertisement
Report this ad  |  Hide Techdirt ads

Close

Email This

This feature is only available to registered users. Register or sign in to use it.